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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts When History Becomes Precedent in the OLC
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Monday, January 16, 2023
When History Becomes Precedent in the OLC
Guest Blogger
For the Balkinization 20th Anniversary Symposium Mary Dudziak Congratulations
to Jack on Balkinization’s 20th anniversary! This essay
takes up an important methodological problem in the way history is relied on in
legal interpretation. History matters to legal outcomes – for example in
originalism and in “gloss of history” analysis in the separation of
powers. Historical ideas can become embedded in precedent – but history itself
is not law. It is evidentiary. Understandings of history evolve over time as
new evidence is uncovered and historians employ revised methods. What should
happen when legal interpretation is informed by ideas about history that
historians have revised or discarded? In caselaw, lawyers
and historians can rely on new historical evidence to challenge previous
rulings, as the Organization for Americans Historians did in Obergefell v. Hodges. In the war powers context, however,
the most relevant opinions are usually written by the Office of Legal Counsel, often
relying on gloss of history analysis. When outdated historical understandings
are embedded in OLC opinions, there is no open and transparent adversary
process, and no corrective. Instead, the outdated history is built into OLC
precedent, and lives on. I take up this problem
in a forthcoming Michigan Law Review article The Gloss of War, which uses a deep dive into Korean
War history to discuss the way the “history” in law can diverge from historical
scholarship which, in military history, changes as records become available and
historians revise their approach, for example paying more attention to the
experience of civilians in war zones. The Korean War, a major conflict in which
the president declined to seek Congressional authorization, plays an important
role in OLC war powers analysis. The historiography of the war has changed
substantially, but the war as historical gloss does not change. Instead, wars,
once invoked in law, continue to serve as straightforward data points. A quick “gloss” primer[1]:
Justice Felix Frankfurter introduced the idea in his 1952 Steel Seizure Case concurrence, arguing that “[i]t 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.” He wrote: 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, making as it were such exercise of power
part of the structure of our government, may be treated as a gloss on
‘executive Power’ vested in the President by § 1 of Art. II. Executive branch lawyers rely on this idea when crafting
opinions about the legality of presidential action, including military
intervention without Congressional authorization. The history of past military
conflicts informs their analysis of whether a new unilateral military
intervention is within the scope of presidential power. In practice, each
conflict becomes a building block for the next one, expanding the legal basis
for unilateral presidential power. This analysis relies on history, but the underlying history
is not subject to revision. Because such opinions are often classified,
transparency and external criticism are hampered. The Korean War is an example of the reliance in law on
outdated history. President Harry Truman minimized the conflict, refusing to
call it a “war.” My research shows that he did not seriously contemplate whether
to ask Congress for a war authorization until after U.S. troops were in battle,
and then proceeded without Congressional authorization for political reasons.
He also ordered U.S. military engagement before the U.N. Security Council
authorized it, even though the administration later pointed to the UNSC
resolution as providing legal authority for war. The contemporaneous legal
document most often cited on the legal basis for the war, a 1950 State
Department opinion, curiously was edited when published in a way that obscures
the timing of Truman’s action in advance of the UNSC. Although Truman justified his action by minimizing the war,
calling it a “police action,” in the end, the conflict resulted in 2-3 million
deaths. Many were civilian casualties from U.S. aerial bombing – the U.S. flew
over a million sorties and dropped 386,027 tons of explosives.[2]
If a conflict with that level of destruction was not a “war,” then the concept
of war has no meaning. Often called the “forgotten war,” historians and researchers
over the years have excavated the war’s brutal character – part of what Paul Chamberlain
calls “the Cold War’s killing fields.” Investigative reporters exposed an American massacre of Korean civilians. Although
historiographic debate on aspects of the war continues, of course, the opening
of Russian and Chinese archives solved important puzzles, clarifying the nature
of the initial outbreak of war. Truman thought that the North Korean invasion
was part of a master plan on the part of Stalin for Communist world domination,
but the archival record reflects Korean initiative driven by conflict
following the peninsula’s post-WWII division, and Soviet and Chinese initial
reluctance for all-out war. Within the first two days after the North Korean invasion,
members of Congress raised the question of whether the Korean conflict was a
civil war, whether U.S. interests were at stake, and whether Truman could act
without Congressional authorization. Many shared the concerns of Senator Robert
Taft who argued that there was “no legal authority for what he has done” when
Truman ordered U.S. military engagement, and warned that if Congress did not
push back, these actions would “terminate[]
for all time the right of Congress to declare war.”[3] Instead
of welcoming Congressional support, concern that an affirmative vote might not
be unanimous – something neither Woodrow Wilson nor FDR received for WWI or II
– undermined Truman’s willingness to consider a war resolution.[4] The contemporary historical record on Korea reveals a failure
to respect Congress’s role, and an effort to minimize the brutality. Injured
soldiers felt forgotten at the time, and the experience of Koreans, north and
south, was simply off the radar for the U.S. public. Since that time, if there has
been a reckoning with the past in works of history and journalism, it has not
made inroads in the legal understanding of the war and its role as precedent. Instead,
the war continues to play an important role in the legal basis for expansive
unilateral presidential power. In Office of Legal Counsel opinions, the Korea War
essentially shrank the constitutional concept of war – so that anything smaller
than that catastrophic war did not require Congressional authorization.[5]
For example, Assistant Attorney General William Rehnquist relied on the Korean
War in an OLC memo supporting President Richard Nixon’s power to invade
Cambodia. In the memo, an “all-out war” required Congressional authorization,
but more limited conflicts did not. Rehnquist essentially followed Truman’s
lead on Korea. If the Korean war was a “police action,” not a war, then for
Rehnquist Cambodia was also a “limited war,” and Nixon’s unilateral decision to
invade Cambodia was lawful.[6]
Scholarship on the Korean War belies the idea that Korea was a limited war, and
Truman’s disregard for Congress’s role, evident in the archival record, should
be a cautionary tale rather than a legal precedent worthy of replicating.
Instead, in the Cambodia opinion and others, the fact that a president did something
became evidence of their power to do it, thereby enabling later presidents to
build upon it. Later wars were smaller than Korea and Indochina, but that
did not make the Korean precedent unimportant. Essentially, the Korean War
provided a legal ceiling beyond which unilateral power, at least theoretically,
could not go.[7] Over
time, as technology enabled more force with fewer U.S. troops, all wars were
smaller than Korea, so that the ceiling was simply never reached. Seeking a war
authorization has been rendered a presidential choice rather than a
constitutional command. In an era when
Americans have seemingly lost interest in their country’s ongoing war,[8]
legal restraints are especially important. Gloss of history analysis, at least
as it functions in the OLC, builds upon itself, so that the doctrine most often
works as a one-way ratchet for executive power. What Frankfurter called “the gloss
which life has written” upon the words of the Constitution has a deep past.
Reaching back to constitutional fundamentals, and discarding examples of
presidential disregard of constitutional limits, could infuse democratic values
and the capacity for restraint into the gloss of history. Mary L. Dudziak is the President’s Humanities Fellow
at Emory University’s Fox Center for Humanistic Inquiry, and Asa Griggs Candler
Professor of Law at Emory University School of Law. You can reach her by e-mail at mary.dudziak@emory.edu. [1]
Legal scholar Curtis Bradley is the leading
proponent of this
methodology, with a forthcoming book on the topic. [2]
Marilyn B. Young, Bombing Civilians: From the Twentieth to the Twenty-First
Centuries, in Making the Forever War: Marilyn B. Young on the
Culture and Politics of American Militarism 139, 142 (Mark Philip
Bradley and Mary L. Dudziak, eds., 2021). [3] Mary
L. Dudziak, The Gloss
of War, 121 Mich. L. Rev.
at 25- 27, 30-32, 34-38 (forthcoming 2023) (page numbering in current
prepublication copy). There are, of course, different views on whether a war
declaration was required. See especially Mariah Zeisberg, War Powers: The Politics of Constitutional
Authority (2013),
arguing that through Congressional action at the time, including
appropriations, Congress and the president together produced constitutional
authority for war. In my view, in spite of the urgency following the North
Korean invasion, there was time for Truman seek a war declaration, and failing
to do so eroded Congress’s power to act when it matters most: before engaging
in significant U.S. military action. Once troops are under fire, the
rally-round-the-flag effect makes it exceedingly more difficult to vote against
the president. [4]
Dudziak, The
Gloss of War, 121 Mich. L. Rev.
at 42 (page numbering in current prepublication copy). [5]
The Korean War also informs another important war powers argument in OLC memos:
the idea that presidents can act unilaterally to protect U.S. “interests,” and
that supporting the United Nations is a sufficient interest. See Dudziak,
The Gloss of War, at Part
III (A)(2). [6] The
President and the War Power: South Vietnam and the Cambodian Sanctuaries, 1
Op. O.L.C. Supp. 321 (1970). [7]
Congress approved a military draft and appropriated funds for the war, but
members of Congress are reluctant to fail to support deployed troops. Truman’s
unilateralism was in his decision to go to war in the first place – the point
when voices of restraint can make a difference. [8]
Young, The Big Sleep, Making the
Forever War, at 132.
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