The Invisible Constitution in Comparative Perspective

3.6.10.  Historical Practice

The final category of extra-textual sources of constitutional law to be exam-

ined here is historical practice by the political branches. How should original-

ists treat constitutional arguments based on the institutional practices of the 

President and Congress? Should such practices have special authority if they 

were close in time to the adoption of a particular constitutional provision? 

For example, should the actions of the first Congress and George Washington 

have special authority with respect to interpretation and constructions of the 

Constitution of 1789? These questions can be made more precise by distin-

guishing the role of historical practice in interpretation and construction.

Consider first the role of historical practice in constitutional interpretation. 

In the sense stipulated by the interpretation–construction distinction, inter-

pretation aims to recover the communicative content of the constitutional 

text. Direct evidence of communicative content comes from two sources: (1) 

evidence of linguistic facts that establish conventional semantic meaning, syn-

tax, and grammar; and (2) historical evidence of the publicly available context 

of constitutional communication. Post-ratification practice by the executive 

and legislative branches does not provide direct evidence. Such practices are 

76 

Randy E.  Barnett, “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism” (2006)  75 

University of Cincinnati Law Review 7–24.

77 

Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).

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Originalism and the Invisible Constitution 

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not linguistic facts. And post-ratification practice cannot be part of the pub-

licly available context of communication because such practices occur after 

the communicative acts (framing and ratification) have occurred.

Nonetheless, historical practice can provide indirect evidence of original 

meaning. Suppose that known linguistic facts underdetermine the meaning 

of a constitutional provision. A typical case of such underdeterminacy might 

be ambiguity. A word or phrase in the Constitution could have two (or more) 

semantic meanings. The first Congress legislates in a way that is consistent 

with one of the alternatives, but not the other. One might infer that Congress’ 

action provides evidence in favor of the interpretation that is consistent with 

the constitutionality of the legislation. Of course, this evidence is not decisive –  

after all, Congress (even the first Congress with members who attended the 

Philadelphia Convention and various ratifying conventions) could be mis-

taken – or Congress could have failed to recognize the issue, or deliberately 

violated the Constitution. Nonetheless, early historical practice provides evi-

dence relevant to the resolution of the ambiguity.

How should originalists regard the use of historical practice in constitu-

tional construction? Originalists are committed to the Constraint Principle. 

When the meaning of the text is clear and relevant, originalists will adopt 

a construction that aligns the legal content of constitutional doctrine with 

the communicative content of the constitutional text. But in the construc-

tion zone, there may be more than one constitutional doctrine permitted by a 

vague or irreducibly ambiguous text. So, originalists can accept the use of his-

torical practice to liquidate constitutional meaning in the construction zone.

78

Originalists can embrace a role for historical practice in constitutional con-

struction. Should they do so? Once again, this is a complex question and 

different originalists may approach it differently. Originalists whose normative 

concerns focus on the rule of law and judicial constraint may welcome his-

torical practice arguments – as they provide a basis for settling constitutional 

questions. Settlement serves the rule of law values of stability, certainty, and 

predictability. Settlement also serves the function of constraining judges by 

providing a basis for decision that does not require judges to make first-order 

normative judgments about the political morality of the settled institutional 

arrangements.

Other originalists may argue that historical practices should play a modest 

role because they envision a greater role for normative concerns in the con-

struction zone. And yet other originalists may believe that judges should gener-

ally defer to the political branches in the construction zone: these originalists 

78 

See Amar, Supra note 6, 335.

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