Another gloss on "gloss"

Youngstown Sheet & Tube Co. v. Sawyer is a landmark Supreme Court case dealing with executive power. 343 U.S. 579 (1952). You may know it from such recent scandals as John Y*o failing to cite it in his infamous memo.

We just read it in class, and one of the concurring opinions, by Justice Jackson, has some really fascinating language about how life adds meaning to words:

“Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. 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. In short, 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…may be treated as a gloss on ‘executive Power.’”

This is a fascinating and fairly controversial argument -- that over time, the executive may gain power through a mechanism almost like adverse possession, by exercising that power, so long as Congress does not affirmatively tell him or her to stop.

A textualist or formalist would be disturbed by the idea that present practices or norms could somehow alter our interpretation of the Constitution's words.

This is why Constitutional law is so thrilling -- it's a domain where the stakes of reading and interpretation are tremendously high and words like "gloss" can cause a whole big fight...