Doing Gloss

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It is common for courts, the political branches, and academic commentators to look to historical governmental practices when interpreting the separation of powers. There has been relatively little attention, however, to the proper methodology for invoking such “historical gloss.” This Essay contends that, in order to gain traction on the methodological questions, we need to begin by considering the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As the Essay explains, these differing justifications have differing methodological implications, and disaggregating them helps explain variations in the types of evidence that courts have credited in discerning gloss. Perhaps most notably, it helps explain why courts are often less demanding in requiring evidence of institutional acquiescence than commonly recited standards for gloss would tend to suggest.

Library of Congress Subject Headings

Constitutional law, Separation of powers, Judicial review