Snyder on Historical Practice at the Founding

Ryan Snyder, University of Missouri School of Law, has published Historical Practice at the Founding as University of Missouri School of Law Legal Studies Research Paper No. 2025-55. Here is the abstract.

In recent years, the Supreme Court has increasingly relied on historical practice—actions other than judicial decisions that implement the law after its adoption. That creates tension with the Court’s professed adherence to originalism—the view that a law’s meaning is fixed at the time of its adoption. To resolve this tension, the Court and many scholars have embraced theories such as “liquidation,” which argue that the Founders themselves used practice to update or change the law’s meaning over time. But until now, no one has systematically examined whether the Founders accepted those theories. This Article provides the first comprehensive analysis of how Founding-era courts used practice to interpret legal texts. It concludes that courts did not rely on practice to revise the law’s meaning; rather, they used it to discover what the law originally meant. Courts believed that practice helped reveal original meaning for three main reasons. First, they thought that contemporaneous interpreters were more likely to understand the law’s text and purpose, which gave them valuable insight into its original meaning. Second, they believed that contemporaneous practices revealed how those interpreters understood the law. And third, they believed that contemporaneous practice was even better evidence of original meaning when it had continued unchanged over time. At the same time, courts recognized that practice was not perfect. To address that risk, they applied a rigorous screening test designed to exclude unreliable practices and give greater weight to reliable ones. This test looked at various factors—such as whether the practice started shortly after the law’s adoption and whether it reflected a good-faith effort to interpret the law—that further confirm that courts used practice only as a tool for discovering original meaning. This history has important consequences for the Supreme Court’s use of practice. First, the history suggests that the Court should refuse to rely on practice as a way of updating or changing the law’s meaning. And second, it suggests that the Court should reshape its current use of practice to better reflect the Founders’ approach.

Download the article from SSRN at the link.