Historical Gloss: A Primer

Alison L. LaCroix

In their provocative article, Professors Curtis Bradley and Trevor Morrison seek to fill a scholarly gap focusing on the Frankfurterian strand of separation of powers reasoning. They describe their project as examining the “role of historical practice in discerning the separation of powers,” with special attention to the “actual dynamics of congressional-executive relations.”11 From historical practice, or historical gloss (about which terms more infra), Bradley and Morrison turn to a related inquiry raised in Justice Frankfurter’s concurrence. According to the concurrence, evidence of the “gloss which life has written upon” the words of the Constitution” could be divined from a “systematic, unbroken executive practice” if that practice was accompanied by “long-continued acquiescence” by Congress.12 Bradley and Morrison follow Justice Frankfurter’s analysis by first considering the meaning of acquiescence and then suggesting that acquiescence is necessary in order for a given set of practices to constitute a sufficient gloss on executive power to become a source of presidential authority.

This short response addresses three central themes raised by Bradley and Morrison’s article: the meaning of historical practice; its shortcomings as a source of constitutional authority; and the significance of the “Madisonian model” for the separation-of-powers scheme offered by the article.