Document Type

Article

Publication Date

Winter 2020

Publication Citation

15 Harvard Law and Policy Review 15 (2020)

Abstract

We make one central point in this Article. Justice Kagan’s opinion in Chiafalo uses historical gloss to entrench a particular and modern view of political participation—which is best reflected by American political practices— by rejecting an alternative and anachronistic view—which is best reflected by the text and structure of the Constitution. Part I argues that Chiafalo is not a textualist opinion because Article II, Section 1 does not support the majority’s conclusion that states have the power to limit elector discretion. The majority’s reasoning to the contrary is not persuasive, even on its own terms. Part II argues that Chiafalo is best understood as the latest case from the Court to apply the approach of “historical gloss” to interpreting the Constitution. However, unlike past cases where the Court has used gloss to interpret the Constitution when the text is ambiguous or silent, in Chiafalo, Justice Kagan deploys historical practice in the face of a clear constitutional text which leads to a different conclusion than the evidence from historical practice. Part III examines why Justice Kagan relies on gloss in Chiafalo and explains, from the vantage point of law and democracy, that the Court deploys gloss instrumentally to constitutionalize a particular view of political participation and representation. Chiafalo updates and modernizes our understanding of representation and political participation. Chiafalo is thus as much about the future as it is the past. It is about entrenching a different conception of democratic politics. Part IV explores some problems that are raised for the historical gloss literature when gloss is used in this way to interpret the Constitution. Finally, we conclude with some questions about the robustness and potential of the Court’s right of political participation.

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