Ashraf Ahmed (Columbia University — Law School) has posted Historical Practice Theories, forthcoming in the Columbia Law Review, on SSRN. Here is the abstract:
Contemporary constitutional law and theory is preoccupied with the question of practice. Over the last decade, across a range of issues—from gun rights to elections to school prayer to the structure of the administrative state—the Supreme Court has decided cases on the basis of past practice. The Court and scholars have called this style of argument different names: historical gloss, constitutional liquidation, and history and tradition. Yet each does the same thing, explain when, how, and why past behavior should be legally relevant. They thus comprise a novel mode of constitutional interpretation that turns to history but in search of practical, rather than linguistic, meaning.
Yet historical gloss, constitutional liquidation, and history and tradition have not been recognized as a coherent category, let alone studied in a systematic way. Instead, they have largely developed in isolation. This Article provides an important corrective. It terms these views “historical practice theories” and advances a unified account that explains their common structure, foundations, and tensions.
The Article makes three claims. The first, descriptive claim is that theories share a four-part structure: application conditions, units of account, interpretive weight, and normative rationales. The second claim is constructive. Two of these theories—gloss and liquidation—aim to achieve descriptive fidelity to current practice by aligning the law with it. This descriptive fidelity, in turn, renders them more intelligible as accounts of constitutional law and counts as a normative reason to endorse them. The final claim observes three conceptual ironies. First, in pursuing descriptive fidelity, historical practice theories introduce considerable judicial discretion, the limitation of which is a central aim of constitutional theory. The second irony is that despite the concessions gloss and liquidation make to understand the past, they fall short in satisfying the demands of both historical and legal interpretation. The final irony is that gloss and liquidation are better understood as deference regimes rather than substantive theories of interpretation, since they instruct judges to respect the considered constitutional views of other actors rather than impose their own views.
This Article thus deepens our understanding of an important, novel form of unwritten constitutionalism.
Highly recommended! Download it while it’s hot! This very interesting and theoretically sophisticated paper engages with Public Meaning Originalism, treating it as the paradigmatically linguistic enterprise against which historical practice theories are defined. But the paper does not fully consider the relationship of historical practice theories to pragmatic enrichment — the process by which context supplements or modifies semantic content to yield the proposition actually communicated by a constitutional provision. Pragmatic enrichment operates between the recovery of semantic meaning and the completion of a constitutional rule, and it is precisely in that space that appeals to historical practice most naturally arise. More importantly, although the interpretation-construction distinction is cited in connection with the application conditions for gloss and liquidation, the paper does not develop its implications for the central argument. Historical practice theories, on Ahmed’s own account, operate in the domain of constitutional underdeterminacy — which is the construction zone. The paper does not ask whether historical practice theories are best understood as construction-zone doctrines that implement constitutional meaning in cases of underdeterminacy, or as rivals to originalism at the level of interpretation proper. That question is especially important today, both because of the originalist commitments of the current Supreme Court and many state supreme courts, and because of the central place originalism occupies in normative constitutional theory.
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