![handle is hein.journals/gljon9105 and id is 1 raw text is:
Practice and Precedent in Historical Gloss Games
JOSEPH BLOCHER AND MARGARET H. LEMOS
Historical practices can help define the separation of powers. One
branch's claim of authority and another branch's acquiescence can put a
gloss on the sparse text of Articles I-III, especially when repeated over
time. For example, Justice Frankfurter's opinion in Youngstown Sheet &
Tube Co. v. Sawyer-the opinion that coined the term gloss-turned on
whether Congress had acquiesced in the President's asserted practice of
seizing private property during the course of armed conflict.'
In these gloss games there are always at least two players: the
branch that is claiming authority and the branch that is ceding it. Most
prior scholarship in this area focuses on contests between the legislative
and executive branches.2 Officials in these branches can assert authority in
various ways and when the same actions are repeated over time, they may
coalesce into a form of historical practice. Members of Congress can issue
statements, propose new laws, create and structure agencies, confirm
nominees for federal office, vote for or against legislation, and so on. The
President can make appointments, issue executive orders, veto legislation,
direct troops, and the like. These actions are not compelled by other
sources of law and may vary significantly from one actor (or set of actors)
to the next. The potential for variation is what gives weight to practices
that are systematic, unbroken, and unchallenged by the competing
branch.3
In Historical Gloss, Constitutional Conventions, and the Judicial
Separation ofPowers, Professors Curtis Bradley and Neil Siegel challenge
Professor of Law, Duke Law School.
** Robert G. Seaks LL.B. '34 Professor of Law, Duke Law School. Thanks to Curt
Bradley, Neil Siegel, and participants in the Historical Practice and Federal Judicial
Power Roundtable held at Duke Law School in October 2015.
1. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter,
J., concurring) (It 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.); see also id. at 610-11 ([A] systematic, unbroken, executive
practice, long pursued to the knowledge of the Congress and never before questioned,
engaged in by Presidents who have also sworn to uphold the Constitution, making as it
were such exercise of power part of the structure of our government, may be treated as a
gloss on 'executive Power' vested in the President by § 1 of Art. II.).
2. See, e.g., Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice,
Textual Ambiguity, and Constitutional Adverse Possession, 2014 SUP. CT. REV. 1 (2015);
Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation ofPowers,
126 HAR. L. REv. 411 (2012).
3. Youngstown, 343 U.S. at 610 (Frankfurter, J., concurring).](ViewImageLocal?handle=hein.journals/gljon9105&div=1&collection=&method=preview&ext=.png&size=3)
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