Historical Gloss, Madisonian Liquidation, and the Originalism Debate

Article — Volume 106, Issue 1

106 Va. L. Rev. 1
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*Bradley is the William Van Alstyne Professor, Duke Law School. Siegel is the David W. Ichel Professor, Duke Law School. For helpful comments and suggestions, we thank Matt Adler, Jack Balkin, Will Baude, Joseph Blocher, Jamie Boyle, Kathy Bradley, John De Figueiredo, Richard Fallon, Jonathan Gienapp, Tara Grove, Aziz Huq, Vicki Jackson, Margaret Lemos, Sanford Levinson, Marin Levy, William Marshall, Caleb Nelson, H. Jefferson Powell, David Pozen, Daphna Renan, Lawrence Solum, Mark Tushnet, Ernest Young, participants in a faculty workshop at Duke Law School, and the editors of the Virginia Law Review.Show More

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such post-Founding governmental practice in discerning the Constitution’s separation of powers. That approach has been referred to as the “historical gloss” method of constitutional interpretation, based on language that Justice Frankfurter used to describe the concept in his concurrence in the Youngstown steel seizure case. Some originalist commentators, however, have advanced a potentially competing approach to crediting post-Founding practice, which they refer to as “liquidation,” an idea that they ascribe to James Madison and certain other members of the Founding generation.

To date, there has not been any systematic effort to compare gloss and liquidation, even though the differences between them bear on the constitutionality of a range of governmental practices relating to both domestic and foreign affairs in the fields of constitutional law and federal courts. This Article fills that gap in the literature. We first provide an account of what must be shown in order to establish historical gloss. Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued interbranch contestation. We then consider the extent to which the liquidation concept differs from that of gloss and whether those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, which would focus primarily on early historical practice and disallow “re-liquidation” of constitutional meaning once it had become settled by practice, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, as recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. We also question whether either account of liquidation is properly attributed to Madison.

Introduction

In discerning the Constitution’s separation of powers, it is common for courts, the political branches, and academic commentators to give weight to post-Founding governmental practice.1.See generally Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012).Show More Reliance on such practice is sometimes referred to as the “historical gloss” method of constitutional interpretation, based on the way that Justice Frankfurter described the concept in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer.2.343 U.S. 579 (1952).Show More In that decision, the Supreme Court held that President Truman had exceeded his constitutional authority in attempting to seize the nation’s steel mills during the Korean War to avert a strike.3.Id. at 582–84.Show More Frankfurter wrote separately to consider whether and to what extent historical practice might support Truman’s authority to seize the mills.4.Id. at 593–628 (Frankfurter, J., concurring).Show More

Frankfurter argued that historic governmental practice was relevant to the question of the President’s seizure authority, asserting that “[i]t is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.”5.Id. at 610.Show More In his view, although “[d]eeply embedded traditional ways of conducting government” could not “supplant the Constitution or legislation,” they could “give meaning to the words of a text or supply them.”6.Id.Show More Frankfurter reviewed the historical practice concerning executive seizure of property, however, and found it insufficient to sustain Truman’s action. Finding only three instances of presidential seizures comparable to the one at issue in the case, all of which occurred in 1941, Frankfurter concluded that “these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution [that we have previously credited],” “[n]or do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers.”7.Id. at 613.Show More

The Supreme Court’s reliance on historical practice in discerning the separation of powers long predates Frankfurter’s concurrence in Youngstown. For example, in a 1915 case, United States v. Midwest Oil Co., the Court rejected a challenge to President Taft’s decision to temporarily withdraw certain public lands from private development, emphasizing the “long continued practice [of making] orders like the one here involved.”8.236 U.S. 459, 469 (1915).Show More Along similar lines, the Court in the 1920s, in concluding that the President’s pardon power extends to a conviction for contempt of court, reasoned that “long practice under the pardoning power and acquiescence in it strongly sustains the construction it is based on.”9.Ex parte Grossman, 267 U.S. 87, 118–19 (1925).Show More And, in another decision from that period, the Court emphasized longstanding presidential practice when considering the circumstances under which the President’s “pocket veto”—that is, failure to sign a bill before Congress recesses—should be deemed to operate.10 10.The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character.”).Show More

A number of the Supreme Court’s modern separation of powers decisions have also relied heavily on historical practice. In 1981, in Dames & Moore v. Regan, the Court upheld executive orders transferring billions of dollars in claims to an international tribunal in The Hague, as part of the resolution of the Iranian hostage crisis, in large part based on the historical practice of presidential settlement of claims.11 11.453 U.S. 654 (1981).Show More In doing so, the Court expressly invoked Justice Frankfurter’s discussion of historical gloss.12 12.See id. at 686.Show More Two more recent decisions have particularly emphasized the importance of historical practice. In 2014, the Court in NLRB v. Noel Canning relied heavily on historical practice in construing the scope of the President’s authority to make recess appointments.13 13.134 S. Ct. 2550 (2014); see also Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession, 2014 Sup. Ct. Rev. 1 (analyzing the role of historical practice in Noel Canning).Show More The Court explained that, because “the interpretive questions before us concern the allocation of power between two elected branches of Government,” it was appropriate to “put significant weight upon historical practice.”14 14.Noel Canning, 134 S. Ct. at 2559 (emphasis omitted).Show More The following year, in Zivotofsky v. Kerry, the Court again emphasized historical practice, this time in concluding that the President has an exclusive authority to recognize foreign governments and their territories that cannot be limited by Congress.15 15.135 S. Ct. 2076, 2091 (2015) (“In separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’” (quoting Noel Canning, 134 S. Ct. at 2559)).Show More

Reliance on historical practice has also long been a staple of constitutional reasoning within the executive branch. To take one of many examples, executive branch lawyers rely extensively on practice in discerning the scope of the President’s constitutional authority to use military force. In 2018, for instance, the Justice Department’s Office of Legal Counsel (“OLC”) concluded, based largely on historical practice, that President Trump had the power to direct airstrikes against Syria in response to its use of chemical weapons during the civil war there.16 16.April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. __ (May 31, 2018), https://www.justice.gov/olc/opinion/file/1067551/­download [https://perma.­cc/QN7Q-HZKR].Show More Citing to earlier opinions from the Office, including one from 1970, OLC explained: “We have recognized that ‘[s]ince judicial precedents are virtually non-existent’ in defining the scope of the President’s war powers, ‘the question is one which of necessity must be decided by historical practice.’”17 17.Id. at5 (quoting Presidential Authority to Permit Incursion into Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op. O.L.C. Supp. 313, 317 (1970)).Show More Similarly, in 2011 OLC concluded, based largely on historical practice, that President Obama had the constitutional authority to direct U.S. military forces to take part in bombing operations in Libya without first seeking congressional authorization.18 18.See Authority to Use Military Force in Libya, 35 Op. O.L.C. __ (Apr. 1, 2011), http://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authority-military-use-in-libya.pdf [https://perma.cc/G8RU-VLF7].Show More Quoting from an earlier legal opinion concerning a military intervention in Haiti, OLC asserted that “the pattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents of both parties, evidences the existence of broad constitutional power.”19 19.Id. at 7 (internal quotation marks omitted) (quoting Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 178 (1994)).Show More

Despite the prevalence of that sort of constitutional reasoning in the judiciary and the executive branch, until recently few academic commentators had given significant attention to it, or to its relationship to other approaches to constitutional interpretation. That started to change in 2012, when one of us co-authored an article exploring those questions.20 20.See Bradley & Morrison, supra note 1.Show More The Noel Canning decision two years later further heightened interest in the relevance of historical practice to the separation of powers. Since then, a number of commentators, including the two of us, have continued to try to unpack the concept of historical gloss.21 21.See, e.g., Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255 (2017) (examining the concept of historical gloss and its relationship to nonlegal but obligatory “constitutional conventions”); Curtis A. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59 (2017) (examining the relationship between how the historical gloss approach is implemented and the reasons for crediting historical practice); Bradley & Siegel, supra note 13 (analyzing the role of historical practice in Noel Canning).Show More

Some originalist commentators have invoked a different term to describe the relevance of post-Founding practice to constitutional interpretation: “liquidation.” Drawing on references to that term by James Madison and certain other members of the Founding generation, those commentators have outlined the conditions under which post-Founding practice can potentially “liquidate” indeterminate constitutional meaning such that it becomes “fixed.”22 22.In referring to “indeterminacy” in this Article, we are using it as a shorthand to encompass a range of circumstances in which the meaning of the constitutional text is under-determinate, including instances of “ambiguity, vagueness, gaps, and contradictions.” SeeLawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 469–72 (2013).Show More The Supreme Court, too, has sometimes invoked the idea of “fixing” constitutional meaning when referring to the relevance of historical practice to constitutional interpretation.23 23.See, e.g., Myers v. United States, 272 U.S. 52, 175 (1926) (“[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions.”); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (rejecting a constitutional challenge to Congress’s requirement that Supreme Court Justices sit on circuit courts, explaining that “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction”).Show More The word “liquidation” is used in that context to mean essentially the opposite of the principal modern connotation of the word; instead of signifying dissolution (as in a “liquidation sale”), it is used to signify solidification or determination (as in “liquidated damages”).24 24.An obsolete meaning of “liquidate,” which is derived from the Late Latin “liquidare,” is “to make clear or plain (something obscure or confused); to render unambiguous; to settle (differences, disputes).” Liquidate, The Oxford English Dictionary (2d ed. 1989).Show More

In part because the concepts of gloss and liquidation have only recently begun to receive sustained academic attention, it is not entirely clear whether and to what extent they do or should differ from one another. In Noel Canning, the Court seemed to assume that liquidation and gloss were the same phenomenon. After quoting a reference to liquidation by Madison, the Court wrote that “our cases have continually confirmed Madison’s view.”25 25.134 S. Ct. 2550, 2560 (2014).Show More In its string cite of decisions, however, the Court included a number of decisions claimed by supporters of the gloss approach, including Frankfurter’s concurrence in Youngstown.26 26.See id. (citing Mistretta v. United States, 488 U.S. 361, 401 (1989); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981); Youngstown, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, 279 U.S. 655, 689–90 (1929); Ex parte Grossman, 267 U.S. 87, 118–19 (1925); United States v. Midwest Oil Co., 236 U.S. 459, 472–74 (1915); McPherson v. Blacker, 146 U.S. 1, 27 (1892); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); and Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803)).Show More Legal scholars also appear to be confused about the distinction, if any, between gloss and liquidation. Writing a year after Noel Canning, Professor Richard Fallon expressed uncertainty, describing gloss as “[c]losely related” to liquidation but “possibly more capacious.”27 27.Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1775 (2015); see also Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465, 541 & n.424 (2018) (discussing “gloss” and stating that “[i]n a somewhat similar vein, Caleb Nelson and William Baude have suggested that political practice can ‘liquidate’ (that is, settle) the meaning of ‘contestable’ constitutional provisions” (emphasis added)).Show More

Although originalists often focus on history, usually it is history relating to the constitutional Founding and the pre-Founding period.28 28.See Jack M. Balkin, The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 655–57 (2013) (describing how originalism has traditionally focused on history relating to the adoption of the Constitution and its amendments).Show More Perhaps because of that, for many years the only scholar to have extensively addressed liquidation was Professor Caleb Nelson, who described it in primarily historical terms.29 29.Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525–53 (2003) [hereinafter Nelson, Originalism and Interpretive Conventions]; Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001) [hereinafter Nelson, Stare Decisis].Show More In a more recent article, however, Professor William Baude has offered a more detailed and contemporary account of the concept.30 30.William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).Show More Meanwhile, the historian Jonathan Gienapp has published an important study of how, over the course of the 1790s, Madison and others in the Founding generation changed their understanding of the nature of the Constitution, including its relationship to historical practice.31 31.Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018).Show More

In this Article, we consider whether and to what extent the concept of liquidation differs from that of gloss. We also consider whether, to the extent that there are differences between liquidation and gloss, those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, which would look primarily to early historical practice and disallow “re-liquidation” once constitutional meaning had become settled through practice, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We then argue that Baude’s broader account of liquidation responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either account of liquidation is properly attributed to Madison.

The differences between gloss and liquidation matter. In part because of recent judicial appointments to both the Supreme Court and the lower federal courts, originalism may be experiencing a resurgence.32 32.See, e.g., Lawrence B. Solum, Legal Theory Lexicon 019: Originalism, Legal Theory Blog (last revised Aug. 11, 2019), https://lsolum.typepad.com/legal_theory_lexicon/2004/01/­legal_theory_le_1.html [https://perma.cc/UVY2-E25D] (“The current Supreme Court has at least two members who seem strongly influenced by originalist constitutional theory—Associate Justices Neil Gorsuch and Clarence Thomas. Three other[] Justices, John Roberts, Samuel Alito, and Brett Kavanaugh[,] may also be receptive to originalist arguments—at least in some cases.”).Show More At the same time, originalist theory has become more receptive to accommodating various non-originalist materials, including historical practice.33 33.See infra notes 45–53 and accompanying text.Show More Unlike the changes in originalist theory over the years—from a focus on the intentions of the Framers, to the understandings of the ratifiers, to the original public meaning of the constitutional text—and unlike the originalist embrace of judicial precedent and the idea of “constitutional construction,”34 34.See id.Show More originalist efforts to claim a greater role for post-Founding historical practice as within the originalist project have not yet received much attention or recognition as such. Like those other “impurifications” of originalism, however, the originalist turn to practice presents originalists with difficult tradeoffs.35 35.For analysis of the phenomenon of theory “working itself impure,” with originalism as one of several case studies, see Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016).Show More As we will explain below, those tradeoffs vary depending on whether one opts for gloss or liquidation. More concretely, the constitutionality of many important and longstanding governmental practices in the fields of both constitutional law and federal courts may depend on that choice. Examples include the recess appointments practices accepted in Noel Canning; the extensive modern practice of using congressional-executive agreements in lieu of Senate-approved treaties; presidential authority to order small-scale or short-term uses of military force without congressional authorization; the authority of presidents to withdraw the United States from treaties; the longstanding practice of permitting non-Article III courts to adjudicate federal law cases subject to certain limitations; and the even longer practice of vesting less than the full Article III judicial power in the federal courts notwithstanding the ostensibly mandatory language of Article III.36 36.See infra notes 54–55, 115–124 and accompanying text.Show More

Part I explains why attention to post-Founding historical practice fits more naturally with non-originalist theories of constitutional interpretation than with originalist theories, and it considers why some originalists are nevertheless paying increasing attention to practice. Part II describes the historical gloss approach and explains why, under most accounts, it does not require evidence of an interbranch agreement about the meaning of the Constitution. It also argues that gloss is most defensible in the separation of powers context. Part III assesses the extent to which the liquidation approach is distinct from gloss. It argues that, even under the relatively broad account of the concept recently offered by Baude, there are differences, and that those differences render liquidation normatively less attractive than gloss. Part IV explains why it is doubtful that the liquidation approach as described by scholars such as Nelson and Baude can properly be attributed to Madison. The Article concludes by underscoring the importance of historical practice in light of the age, brevity, and difficulty of amending the Constitution.

  1. * Bradley is the William Van Alstyne Professor, Duke Law School. Siegel is the David W. Ichel Professor, Duke Law School. For helpful comments and suggestions, we thank Matt Adler, Jack Balkin, Will Baude, Joseph Blocher, Jamie Boyle, Kathy Bradley, John De Figueiredo, Richard Fallon, Jonathan Gienapp, Tara Grove, Aziz Huq, Vicki Jackson, Margaret Lemos, Sanford Levinson, Marin Levy, William Marshall, Caleb Nelson, H. Jefferson Powell, David Pozen, Daphna Renan, Lawrence Solum, Mark Tushnet, Ernest Young, participants in a faculty workshop at Duke Law School, and the editors of the Virginia Law Review.

  2. See generally Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012).
  3. 343 U.S. 579 (1952).
  4. Id. at 582–84.
  5. Id. at 593–628 (Frankfurter, J., concurring).
  6. Id. at 610.
  7. Id.
  8. Id. at 613.
  9. 236 U.S. 459, 469 (1915).
  10. Ex parte Grossman, 267 U.S. 87, 118–19 (1925).
  11. The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions of this character.”).
  12. 453 U.S. 654 (1981).
  13. See id. at 686.
  14. 134 S. Ct. 2550 (2014); see also Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession, 2014 Sup. Ct. Rev. 1 (analyzing the role of historical practice in Noel Canning).
  15. Noel Canning, 134 S. Ct. at 2559 (emphasis omitted).
  16. 135 S. Ct. 2076, 2091 (2015) (“In separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’” (quoting Noel Canning, 134 S. Ct. at 2559)).
  17. April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. __ (May 31, 2018), https://www.justice.gov/olc/opinion/file/1067551/­download [https://perma.­cc/QN7Q-HZKR].
  18. Id. at 5 (quoting Presidential Authority to Permit Incursion into Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op. O.L.C. Supp. 313, 317 (1970)).
  19. See Authority to Use Military Force in Libya, 35 Op. O.L.C. __ (Apr. 1, 2011), http://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authority-military-use-in-libya.pdf [https://perma.cc/G8RU-VLF7].
  20. Id. at 7 (internal quotation marks omitted) (quoting Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 178 (1994)).
  21. See Bradley & Morrison, supra note 1.
  22. See, e.g., Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255 (2017) (examining the concept of historical gloss and its relationship to nonlegal but obligatory “constitutional conventions”); Curtis A. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59 (2017) (examining the relationship between how the historical gloss approach is implemented and the reasons for crediting historical practice); Bradley & Siegel, supra note 13 (analyzing the role of historical practice in Noel Canning).
  23. In referring to “indeterminacy” in this Article, we are using it as a shorthand to encompass a range of circumstances in which the meaning of the constitutional text is under-determinate, including instances of “ambiguity, vagueness, gaps, and contradictions.” See Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 469–72 (2013).
  24. See, e.g., Myers v. United States, 272 U.S. 52, 175 (1926) (“[A] contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions.”); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (rejecting a constitutional challenge to Congress’s requirement that Supreme Court Justices sit on circuit courts, explaining that “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction”).
  25. An obsolete meaning of “liquidate,” which is derived from the Late Latin “liquidare,” is “to make clear or plain (something obscure or confused); to render unambiguous; to settle (differences, disputes).” Liquidate, The Oxford English Dictionary (2d ed. 1989).
  26. 134 S. Ct. 2550, 2560 (2014).
  27. See id. (citing Mistretta v. United States, 488 U.S. 361, 401 (1989); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981); Youngstown, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, 279 U.S. 655, 689–90 (1929); Ex parte Grossman, 267 U.S. 87, 118–19 (1925); United States v. Midwest Oil Co., 236 U.S. 459, 472–74 (1915); McPherson v. Blacker, 146 U.S. 1, 27 (1892); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); and Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803)).
  28. Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1775 (2015); see also Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465, 541 & n.424 (2018) (discussing “gloss” and stating that “[i]n a somewhat similar vein, Caleb Nelson and William Baude have suggested that political practice can ‘liquidate’ (that is, settle) the meaning of ‘contestable’ constitutional provisions” (emphasis added)).
  29. See Jack M. Balkin, The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 655–57 (2013) (describing how originalism has traditionally focused on history relating to the adoption of the Constitution and its amendments).
  30. Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525–53 (2003) [hereinafter Nelson, Originalism and Interpretive Conventions]; Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001) [hereinafter Nelson, Stare Decisis].
  31. William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).
  32. Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018).
  33. See, e.g., Lawrence B. Solum, Legal Theory Lexicon 019: Originalism, Legal Theory Blog (last revised Aug. 11, 2019), https://lsolum.typepad.com/legal_theory_lexicon/2004/01/­legal_theory_le_1.html [https://perma.cc/UVY2-E25D] (“The current Supreme Court has at least two members who seem strongly influenced by originalist constitutional theory—Associate Justices Neil Gorsuch and Clarence Thomas. Three other[] Justices, John Roberts, Samuel Alito, and Brett Kavanaugh[,] may also be receptive to originalist arguments—at least in some cases.”).
  34. See infra notes 45–53 and accompanying text.
  35. See id.
  36. For analysis of the phenomenon of theory “working itself impure,” with originalism as one of several case studies, see Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016).
  37. See infra notes 54–55, 115–124 and accompanying text.

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  Volume 106 / Issue 1  

Historical Gloss, Madisonian Liquidation, and the Originalism Debate

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