A Scholarly Roundtable on History and Practice

A discussion with Christian Burset, Jonathan Green, and Ryan Snyder

I’ve been very interested in a recent round of scholarship on history and tradition in legal interpretation, and I hosted a written roundtable discussion with the authors of three of the best pieces. Christian Burset is a professor of law at Notre Dame Law School and the author of The Origins of Statutory Stare Decisis; Jonathan Green is an associate professor of law at Sandra Day O’Connor College of Law at Arizona State University and the author of Some Traditional Questions about “History and Tradition”; and Ryan Snyder is an associate professor of law at University of Missouri School of Law and the author of Historical Practice at the Founding. Our conversation ensues below.

Will: Gentlemen, thanks for sitting down with me today to talk about your work! Before we get into points of agreement and disagreement, can I start by asking each of you to summarize the core contribution of your article in a sentence or two?

Jonathan: Thanks for having us Will, and sure. My paper is about the role that custom played in delimiting the scope of fundamental rights at common law in the eighteenth-century English courts. One of my central claims – perhaps most relevant for our discussion today – is that where a statute codified a fundamental, preexisting right in writing, that statute didn’t change the right’s character, which meant that if the right’s outer limits were defined by some body of custom or practice before the statute’s passage, then they were after too. If that’s right, and if parts of our Constitution were declaratory of preexisting customary rights, then presumably for an originalist post-enactment practice would be relevant for locating the limits of those rights today. At the same time, how interpreters were supposed to read the customary law – what “tradition” was, where it was to be found, and so on – became contested across the late-eighteenth century, and so my piece gets into some of those interpretive and jurisprudential puzzles too.

Christian: Thanks to Will for organizing this, and to Ryan and Jonathan for joining. My article asks how common-law courts traditionally handled erroneous statutory precedents. (In other words, when courts or other actors interpreted a statute incorrectly, what should later courts do about that?) I argue that Founding-era courts in England and the United States were sharply divided on that score. Some judges adhered to a maxim, communis error facit ius (“common error makes law”), that effectively allowed a course of precedent to amend a statute. But other courts adopted a more textualist position, insisting that precedents could clarify but never alter a statute’s original meaning. My article is primarily a work of legal history, but it also offers some suggestions for how this history might influence how we think about statutory stare decisis today.

Ryan: Thanks Will, it’s great to be here with Christian, Jonathan, and you. My article examines how Founding-era courts used historical practice—that is, the actions that people take to implement or comply with a law after its adoption. The basic claim is that courts used historical practice as a tool for discovering the law’s original meaning, rather than a tool for updating the law over time.

Will: Thanks! I see a lot of overlap and common ground between these articles – that historical practice and the common law were an important part of legal interpretation at and before the Founding. But I also notice some differences in emphasis and maybe disagreements about exactly what to make of the history. Ryan, broadly speaking I see you as the most skeptical about giving a role to historical practice that might be inconsistent with what we would otherwise read the text to do; and Christian, I see you as perhaps finding the most potential room for practice; Jonathan, I see you as sort of in between. Do I have that right?

Christian: That sounds right to me. I certainly find much more evidence than Ryan that some eighteenth- and nineteenth-century lawyers thought that practice could sometimes trump text. I’m probably closer to Jonathan’s view, although we emphasize different fault lines within the common-law tradition.

Ryan: I agree that Will’s description is broadly right. But part of that difference comes from the fact that Christian and I are asking somewhat different questions. As I understand his article, he’s primarily focused on the ability of judicial precedent to trump the text, while I’m looking mostly at the practices of the political branches.

Christian: I think one of the deeper disagreements among the three of us concerns the precise relationship between “practice” and “precedent.” As I read the sources, “precedent” in the eighteenth century incorporated both on-the-ground practice and prior judicial decisions. It was only later that those two categories really diverged as a matter of legal theory.

Jonathan: I don’t know that my position is all that different from Christian’s. Judicial precedents about the sort of “declaratory” statutes I’m focused on – ones that simply restated preexisting rules of common law – don’t really present the kind of communis error dynamic he’s interested in. A statute that cross references and codifies a customary right can’t really be contradicted by a later body of practice defining or delimiting the right’s scope. But outside the declaratory context, my strong sense is that both pre- and post-enactment custom mattered for construing lots of “remedial” statutes as well.

Will: Thanks. I want to ask more about how these questions play out for modern debates on the Court in a minute, but first I would like to ask you all about a couple of English cases.

On the one hand, there’s Sheppard v. Gosnold (1672), which involved the collection of customs duties. Chief Justice Vaughan argued that the practice of customs officers seizing goods under pretextual claims of authority couldn’t count as meaningful “usage” because merchants acquiesced out of economic coercion, not genuine agreement. Meanwhile, R. v. Bewdley (1712) concerned whether a statute requiring jury venires to be drawn from particular localities applied to Crown cases; the court declined to enforce the statute’s apparently broad terms because the “constant practice, ever since the making of the act” had been to draw juries locally in Crown cases anyway. It seems like one of these cuts in favor of the relevance of practice, and one against. How should we reconcile them and what should we make of them?

Jonathan: Since I think Christian and I are going to agree here, Ryan do you want to go first?

Ryan: Sure! Sheppard v. Gosnold was a foundational case when it came to the role that historical practice played in interpretation. The case actually explained the value of pre-enactment practice when interpreting a statute, but courts quickly applied its logic to post-enactment practice. Chief Justice Vaughan’s basic point was that, when language is unclear, the way that people acted before the statute was passed could be good evidence of what the text meant. In particular, the Crown argued that it had a longstanding practice of collecting customs duties on shipwrecked goods that had washed up on shore, and that the court should interpret the statute in light of that practice. But the court rejected the alleged practice on several grounds, including that it conflicted with the statute’s ordinary meaning and that it probably didn’t reflect a good-faith attempt to interpret the law correctly. For more than 150 years after Sheppard was decided, English and American courts cited it for the proposition that post-enactment practice was valuable evidence of the statute’s original meaning.

R. v. Bewdley stands for the proposition that, in certain circumstances, a course of judicial practice can overcome the text of a statute. The court basically treats its own practice as if it established a judicial precedent that the court was bound to follow. Bewdley is clearly the strongest case against my position, although there are some problems with it. First, it was controversial: an editor of Blackstone’s Commentaries called it “notorious,” another treatise said its “singular doctrine is clearly not tenable,” and later courts felt the need to shore up its reasoning. Second, Bewdley is an outlier: After 1600 or so, it’s the only case I’ve seen that actually holds that practice can overcome the statutory text.

Jonathan: I agree with you, Ryan, that Sheppard gets cited frequently across the eighteenth century for the proposition that statutes, especially old ones, should be read in light of how they’d “constantly been receive’d to be by common acceptation.” And it’s also right, and a little weird, that in Sheppard itself, Vaughan chose to disregard the body of official practice that the government’s lawyers pointed to, and to enforce what he called the statute’s “obvious meaning” instead. But to my mind, the reason Vaughan chose to disregard practice in that case actually illustrates why, under different circumstances, it might’ve mattered quite a bit. The first half of Vaughan’s opinion in Sheppard is an attempt to show that the tax statute at issue was a remedial one – it wasn’t just declaratory of some inherent, preexisting authority that the Crown had to tax imports – and that, further, it was in derogation of the common law: if this statute had never been passed, importers wouldn’t have to part with any of the value of their imports. For that kind of a statute, ordinary rules of interpretation counselled a strict construction, unless (1) there was persuasive evidence of a settled course of official practice that presupposed a broader interpretation, and (2) there was reason to think the English people had affirmatively assented to that course of official practice. In Shepard, custom didn’t trump the presumption in favor of a strict reading of the text; but that’s not to say it never could. In fact, Vaughan himself says the opposite!

Christian, do you want to take a stab at Bewdley?

Christian: Gladly! First, I’ll note briefly that I generally agree with Jonathan about Sheppard. That case is about when, not whether, usage can trump text. There, the usage in question—the collection of customs duties without statutory authority—was liable to abuse. If an official exacted a duty illegally, the victim would usually find it cheaper to pay and move on, rather than contest the illegal duty in court. Chief Justice Vaughn wanted to make sure that this kind of repeated abuse, which didn’t really reflect the custom or consent of the English people, didn’t acquire the force of law, particularly against an act of Parliament.

As for Bewdley: Ryan, Jonathan, and I agree that the case allowed a course of practice to overcome the plain text of an act of Parliament. (Indeed, all 12 of England’s senior judges—basically, the English judiciary sitting en banc—agreed about that.) The only question is whether Bewdley was an outlier. I don’t think it was. Lawyers cited it in arguments, and judges cited it in opinions. Here’s one representative post-Bewdley statement: “a series of precedents against the plain words of an act of Parliament have made a law.” That was by Lord Hardwicke, arguably the most important judge of his generation, in 1737. To be sure, Bewdley later became controversial, as Ryan rightly notes. But that’s a later view, which became prominent only after the 1760s.

That gets to another possible fissure between Ryan, on one hand, and Jonathan and me, on the other. I understand Ryan’s project to be reconstructing a single Founding-era view of practice. Jonathan and I, in contrast, focus much more on disagreements among courts and lawyers, and on change over time. So I think that Ryan’s account, which is skeptical that practice can overcome text, absolutely captures one view of things. But I don’t think it’s the whole picture.

Jonathan: I’d second all that. In a legal culture in which most law was unwritten, and in which statutes were conceptualized as discrete interventions into a preexisting body of customary law, the idea that practice could bend statutory language beyond what it would have originally meant wouldn’t have seemed all that strange. One thing that changes across the eighteenth century is the gradual arrival of a more positivistic understanding of legislation. That gives rise to the kind of skepticism about reading statutes in light of subsequent practice that Ryan’s observing, and to the deeper jurisprudential fissures within common law interpretive theory that Christian and I are trying to illustrate.

Ryan: Regarding Sheppard, Chief Justice Vaughan says that practice can’t trump the statute’s ordinary meaning: “if usage hath been against the obvious meaning of an Act of Parliament, by the vulgar and common acceptation of the words, then it is rather an oppression of those concern’d.” On the contrary, he says that practice is valuable evidence of ordinary meaning: “Where the penning of a statute is dubious, long usage is a just medium to expound it by; for jus & norma loquendi is govern’d by usage.” (In my paper, I go into much more detail about what this phrase means than we have time for here.) Sheppard simply can’t stand for the proposition that post-enactment practice can overcome the text, because the case didn’t involve post-enactment practice at all. Moreover, English courts and treatises routinely describe Sheppard as I do: to my knowledge, no one ever understood Sheppard in the way that Christian and Jonathan have described here.

As for Bewdley, it’s true that a few courts cited it in dicta. But I’ve never seen another case that holds that practice can trump the text. And people started questioning Bewdley long before the 1760s: For example, in R. v. Harman (1739) and Att’y Gen v. Allgood (1743), English judges tried to explain Bewdley, not as allowing practice to trump the text, but instead as an application of the interpretive principle that statutes didn’t bind the Crown unless they did so expressly. That shows that, pretty quickly, people found Bewdley’s logic troubling and tried to shore it up.

Lastly, I actually agree that there were multiple perspectives on the relationship between practice and statutory text. From the Middle Ages through the sixteenth century, it’s absolutely true that English courts were willing to allow practice to trump text. The main difference between me and Christian is when we think courts started to reject that view. I think they started to do so much earlier and had rejected it almost entirely by the time of the Founding.

Will: Thank you all!

Now if I can beg your patience with one more historical case, this time under the American Constitution, what should we make of Stuart v. Laird (1803)? As you all know, this case was decided six days after Marbury v. Madison and upheld the practice of circuit riding, which dated back to the Judiciary Act of 1789 — based on practice. Or as the Court put it, “a contemporary interpretation of the most forcible nature,” a “practical exposition . . . too strong and obstinate to be shaken or controlled.” This is the strongest example I know of where the Supreme Court seemed to credit practice without even examining the meaning of the text. But there’s a lot about the case that is weird, including the overwhelming political dynamic and the absence of John Marshall. What should I make of it?

Christian: It’s not obvious what Stuart should mean. On the one hand, it’s been described as an outlier and an act of judicial “self-preservation”, where the Justices were desperate to uphold circuit-riding in order to avoid provoking a crisis. On the other hand, as you note, the Court seemed to decide the case based on practice alone, regardless of what the Constitution’s text might have said. That looks a lot like communis error. At least, that was how some early commentators understood it: “it is too late to disturb the decision, even if it was originally incorrect,” in the words of one antebellum lawyer. For me, that’s enough to suggest that we need to take seriously the possibility that some lawyers in the early Republic thought that a course of practice might sometimes trump the Constitution’s original meaning. But I don’t think we can yet say how widely that view was shared.

Ryan: I think it’s dangerous to put too much weight on Stuart. The Republican Party had basically declared war on the justices and threatened to impeach them if they decided the case incorrectly. The brief and cryptic opinion suggests that they were trying to find an off ramp that got them out of the case as quickly as possible. That’s the best explanation for why they spent only five brief sentences on the issue.

That said, it’s not even obvious what the Court was saying precisely. At the Founding, courts and treatises repeatedly said that a practice that started shortly after a law was adopted and continued for a long period of time after that was good evidence of the law’s original meaning. There are lines in Stuart that seem to be drawing on that reasoning: For example, the Court refers to the longstanding practice of circuit riding as “a contemporary interpretation of the most forcible nature.” And the Court never said that the practice contradicted the Constitution’s text, like the King’s Bench did in Bewdley. So the opinion in Stuart is consistent with the idea that practice is evidence of original meaning, although that’s certainly not the only way to interpret it.

Jonathan: I agree, Stuart is tricky. One way of domesticating that case is to read it as an early example of constitutional liquidation. I can’t recall whether you discuss Stuart in your article on that subject, Will, but it’s plausible to read the Court as saying, effectively, “The Constitution’s text is just underdetermined on this question, and we’ve got a settled course of judicial practice that doesn’t contradict anything in the text. So let’s go with that.” Looking to practice (judicial, executive, or popular) to give specification to semantically underdetermined statutes wasn’t at all controversial in the eighteenth century, as Christian’s article nicely illustrates. But it’s also plausible to read Stuart as an example of the communis error move: that is, as a case where the Court is using practice to trump the constitutional text – text that’s not declaratory. If that’s what’s going on, Stuart has implications for contemporary originalists that are far more radical than have been registered to date.

Will: Now thinking about where things stand today, the Court is having its own version of these disputes, including the recent separate opinions on precedent, history, and tradition by Justices Kavanaugh, Gorsuch, and Barrett in United States v. Rahimi. Which of those Justices (or another Justice?) gets this issue closest to right?

Jonathan: To my mind, there are really two questions here. First, why should an originalist judge today be looking to “tradition” to figure out how broad or narrow the Second Amendment is? How might the constitutional understandings of political actors in the decades after 1791 possibly illuminate what the text originally meant in 1791? In my view, Justice Barrett has been the most effective in flagging this basic question, and I think it’s a very serious objection to the kind of traditionalism that the Court adopted in Bruen. I think there are good originalist answers, but Barrett’s asking the right question here.

Then there’s the question of method: even if an originalist has good reasons to care about “tradition” in theory, we still need to know how to “read” a body of post-enactment practice. And this is where debates about levels of generality, about evidentiary sources, come into play. My own view is that by the latter-eighteenth century, English judges were pretty unsure about a lot of these same questions. (In fact, it’s not clear how a legal community could reach consensus, in the abstract, about the level of generality at which a legal tradition should be interrogated.) So it’s unsurprising that the Justices today are wrestling with them too, and I’m not sure that mining the eighteenth-century sources for answers is going to help all that much.

Christian: I don’t think my paper resolves the methodological disputes in Rahimi. But here’s one thought: Justice Gorsuch insists that courts must look to specific historical analogues, rather than extrapolating from abstract “values” or “purposes,” when cabining the scope of broad textual guarantees like the Confrontation Clause of the Sixth Amendment. That reminds me a lot of the Founding-era debate Jonathan notes between Lord Mansfield, who generally saw the common law as a body of “principles” that transcended individual cases, and Lord Camden and William Blackstone, who both hewed more closely to specific precedents. In other words, Justice Gorsuch seems to favor one side of a divided common-law tradition. That’s a methodological choice that future work should examine (and which a coauthor and I have started to explore elsewhere). Justice Kavanaugh gestures in that direction, too, when he cautions against unthinking reliance on pre-ratification English law.

More generally, I agree with Jonathan that the separate opinions in Rahimi suggest that originalists and tradition-minded lawyers need to develop tools for making principled choices about whose tradition matters, or which part of the tradition deserves continuing force. I might be more optimistic than Jonathan about the possibility of doing so. But I agree that it’s a crucial project.

Ryan: In my view, historical practice can be a valuable tool for discovering the original meaning of the Constitution, as long as it’s the right kind of practice. For example, at the Founding, courts would rely only on practices that started shortly after a law’s enactment and that continued for a long time after that; they wouldn’t rely on practices that started a long time later. In recent years, however, the Court has increasingly relied on such late-arising practices.

Justice Barrett has been the main exception to that. She has consistently looked for the original meaning of the Constitution and recognized that post-enactment practices that started shortly after the Constitution’s ratification can be valuable evidence of that meaning. But she has consistently questioned the relevance of late-arising practices on the ground that they don’t tell us much, if anything, about how people would have understood the text when it was adopted. I think that’s the correct approach.

Will: I think this is a great place to wrap up. Thank you all for taking the time to engage

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