Gloss and Practice: Reading Bradley Through the Lens of Hart and Dworkin

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Richard Fallon 

Curtis Bradley’s book Historical Gloss and Foreign Affairs: Constitutional Authority in Practice will be welcomed as an indispensable resource for anyone seeking to understand the constitutional law of the United States as it bears on foreign affairs.  Among the book’s contributions, it provides an engaging description of the potentially disputable powers that Presidents and Congress have respectively asserted, and about the arguments that they have advanced in support of their positions, over the sweep of history.  At the very least, Historical Gloss and Foreign Affairs thus establishes how de facto constitutional authority has historically been distributed.

Bradley, however, goes a step further.  His central, formally stated thesis holds that the historical practices of Presidents and Congress can become valid sources of interpretive authority in subsequent constitutional disputes.  Bradley offers multiple case studies in which he takes historical practice of the President and Congress, as much as that of the courts, to have resolved “ambiguities” and “fill[ed] gaps” in the constitutional text.  And sometimes, he writes, a form of practice that he calls “gloss” “largely supersedes (or at least overshadows) the text.”  According to him, examples of “gloss” can be seen in the widespread recognition that the President can negotiate treaties without seeking “advice” from the Senate in any formal sense “and, more dramatically,” in the widely shared understanding that the President can bind the nation via executive agreements rather than treaties.  (pp. 192–93)

 If Bradley had cast his book as a political history of the assertion of legally disputable powers, or as a sociological account of when the President and Congress are likely to acquiesce in assertions of authority by other actors, it would seem to me to be wholly persuasive.  But insofar as Bradley claims that “gloss” makes “law” or establishes a source of legal authority in constitutional argument — and, equally importantly, that historical practice by the President and Congress that fails to meet his definition of gloss has no similar law-altering effect — a bit more caution may be in order.

  To assess Bradley’s claim that “gloss” can alter or establish constitutional law, we need a jurisprudential theory of what “law” is and of when and how “practice” can make or change it or authorize Presidents and Congress to make or change it.  As I read Historical Gloss and Foreign Affairs, Bradley never definitively embraces a jurisprudential theory nor provides explicit answers to the question of how certain practices of the President and Congress can achieve law-altering status.  At a very general level, however, he appears to assume the correctness of some version of practice-based jurisprudential theory.  As used in reference to practice-based theories of law, the term “practice” refers to or describes an activity that is constituted by the convergent or overlapping understandings, intentions, and expectations of multiple participants.  Baseball and chess are practices in this sense.  And so, according to practice-based theories, is law.  As practice-based theorists would emphasize, the ideas of a President, a Congress, courts, and a Constitution all depend on shared understandings among participants in our political system about what these offices or institutions are and what they can lawfully do.  The fact that a text — the written Constitution — refers to those offices or institutions or describes their powers cannot provide the ultimate grounding of their legal authority in the absence of deeper, shared assumptions about the text’s exclusive or less-than-exclusive authority.  In other words, a text such as the Constitution can stipulate offices and institutions into existence only insofar as relevant constituencies share assumptions and attitudes about the text’s status as a source of norms and treat those norms as providing reasons for action.

Although the assumption that law is a practice in the sense in which legal philosophers use the term furnishes the background to most of Bradley’s arguments in Historical Gloss and Foreign Affairs, he often speaks of “practice” and “practices” in a second, more quotidian sense.  In this second sense, practices are the familiar patterns of activity of people and institutions — including legal and political officials — in going about their professional lives.  Using the term practice in this sense, we can say, for example, that it is the practice of Presidents or Congress to do certain things, including acting as if they had lawful authority to do those things, and for lawyers to make certain kinds of arguments in defending or contesting claims of presidential or congressional authority.

Within practice-based theories of law, there is no inherent reason why some practices in this second sense could not have the capacity to shape, alter, establish, or constitute law.  It is certainly a possibility that “gloss” might have the status and effect that Bradley says that it does in the United States if relevant participants in our practice view it in the way that Bradley claims.  But it is also evident, even if we assume that the best theory of law is practice-based, that not all practices of all officials (in the quotidian sense) have this lawmaking or law-constituting effect.  Once again, whether they do or do not depends on the understandings and attitudes that constitute the law of the United States when the U.S. legal system is understood as a practice in the first, quasi-philosophical sense of that term.

Nothing that I have said so far is intended to register disagreement with Bradley.  Historical Gloss and Foreign Affairs is very explicit that not all practices of political officials, such as Presidents and members of Congress, and the lawyers arguing on their behalf, establish, shape, or alter the law.  To the contrary, as I have said, it is Bradley’s stated thesis that practice in the domain of foreign affairs has lawmaking effect only when it meets the criteria to count as what he calls “gloss” on the text of the written Constitution.  But he acknowledges that “[t]here is no canonical account of the historical gloss approach to constitutional interpretation.” (p. 25)  Based on “[a] review of the ways in which [the term ‘gloss’] has typically been invoked by courts and other interpreters,” Bradley posits at one point that a pattern of practice by the President or Congress acquires the status of legally authoritative gloss only when it satisfies “three general requirements.”  It must be “(1) governmental practice (2) that is longstanding and (3) concerning which the affected branch of government”—that is, any branch that might plausibly have thought that an assertion of power by another branch intruded on its power—"has acquiesced.” (pp. 25-26)  But he then quickly qualifies the second and especially the third of those demands as, for example, when he says that “[a]n interbranch agreement about constitutional meaning is not required for gloss, although evidence of such an agreement will bolster the case for deferring to the practice.” (p. 30)  He also appears to insist that gloss, even when it exists, is not a permanently binding source of interpretive authority: “[G]loss is not necessarily permanent.  At least in theory, what is glossed can be reglossed.”  (p. 28)

Because Bradley’s claims about the legal status and effect of “gloss” are not self-evidently true, readers who want to appraise them will have to confront the jurisprudential question on which I said earlier that he takes no explicit stand.  To recast that assertion in slightly more critical terms, avoidance of jurisprudential questions becomes untenable when a question about the grounds of law — or about how we could ascertain whether a legal claim is true — arises.  And Bradley’s claims raise a multitude of questions about the legal effects of presidential and congressional practices.  There is the obvious question whether it is true as a matter of law that any kind of practice by the President or Congress (in the quotidian sense) can acquire the status of legal authority capable of altering the Constitution’s properly ascribed meaning.  And if the answer to that question is affirmative in some cases, readers will want to know which.  More pointedly, they will want to know how to tell who is right and who is wrong when participants in our constitutional practice disagree about which practices (in the non-technical sense) have potentially law-altering authority within our constitutional practice (in the more technical, quasi-philosophical sense).  Although there are many possible frameworks within which to seek answers to these jurisprudential questions, I shall consider just two.

            Some textual evidence in Historical Gloss and Foreign Affairs suggests that Bradley thinks the strand of legal positivism pioneered by H.L.A. Hart furnishes the necessary jurisprudential underpinnings for his central legal claims.  According to Hart, law or a legal system is a network of rules that are held together by a master “rule [or rules] of recognition.”  (See The Concept of Law pp. 92, 94-95, 105-110 (3d ed.))  As described by Hart, the most fundamental rule or rules of recognition are “social rules,” existing as a matter of sociological fact, that are fixed by the convergent attitudes and practices of relevant officials.  Bradley notes that his argument is compatible with Hartian positivism at two places in Historical Gloss and Foreign Affairs even though he does not explicitly endorse that theory in either instance.  At one point in Historical Gloss and Foreign Affairs, Bradley suggests — though he stops just short of saying — that a Hartian rule of recognition identifies “gloss” as a source of legal authority.  He writes:

[U]nder prominent jurisprudential accounts most famously associated with H.L.A. Hart, what is ‘law’ is determined by how the participants in the system understand the relevant ‘rules of recognition.’ As this book has shown, gloss is considered by the participants in our system as relevant to constitutional interpretation. (p. 193)

As I read Bradley’s book, however, the historical evidence that it adduces fails to support his claim that there is a convergent practice of judges and other officials in recognizing that practices by the President and Congress that meet his vague criteria for gloss are valid sources of authority in constitutional interpretation but that other practices by the President, Congress, and constitutional lawyers are not similarly valid sources of authority.   As Bradley recognizes, some participants in our constitutional system deny that post-ratification practice by Congress and the President can alter or establish constitutional law at all, especially when the practice contravenes what they take to be the Constitution’s original meaning.  And other participants would ascribe legal significance to “gloss” as defined by the relatively stringent criteria by which Bradley says gloss has “typically” been defined but not if it is defined as not requiring interbranch “acquiescence” or “agreement.”  Under these circumstances, I do not believe that Hart’s theory  could underwrite Bradley’s claim that “gloss,” especially when defined as loosely as Bradley ultimately appears to define it, provides constitutionally valid support for arguments about the scope of presidential and congressional power.

Bradley might counter that there is widespread, convergent agreement on a very vaguely defined rule of recognition such as “at least some, even if not all, practices of the President and Congress rise to the level of sources of authority for adopting or altering interpretations of the written Constitution.”  But even if so, his argument that a rule of recognition ascribes singular significance to “gloss” as he defines it would remain unsupported.  

            An alternative jurisprudential foundation for Bradley’s arguments about gloss could imaginably come from the work of Ronald Dworkin.  Dworkin was even more explicit than Hart in characterizing law as a “practice.” (See Law’s Empire pp. 45–53)  But he vehemently denied that law can be accurately described as constituted by “rules,” and he specifically sought to debunk the Hartian idea that “rules of recognition” exist as social rules fixed by overwhelming consensus among judges and other relevant officials.  Rejecting those ideas, Dworkin characterized legal practice as deeply “argumentative.”  When lawyers and judges disagree about such matters as whether and if so when practice (in the quotidian sense) establishes a valid foundation for legal arguments, Dworkin maintained that they are engaged in “constructive interpretation” of their society’s irreducibly argumentative practice of law (in the jurisprudential sense).  Interpreters, Dworkin posited, try to find an interpretation that fits tolerably well with past events occurring within legal practice and that also, at the same time, portrays law in the normatively best light in which it can be portrayed.  Unlike Hart, Dworkin did not expect that the best legal arguments would always reflect or rest on consensus understandings.  Whereas Hart insisted that rules of recognition are “social rules,” Dworkin’s account of legal interpretation was moralized — in the sense of requiring normative judgments of what would be “best.”  In Dworkin’s theory of law, all of the questions about “gloss” to which Bradley’s argument gives rise have “one right answer,” which is the one given by the “best” constructive interpretation of U.S. legal practice (whatever that best interpretation might be).  But we also need to accept that interpreters are likely to differ about what that one right answer is.

Although Bradley nowhere refers to Dworkin in Historical Gloss and Foreign Affairs, his argument concerning the distinctive importance of gloss in the constitutional law involving foreign affairs could easily be characterized in Dworkinian terms.  Early in the book, Bradley offers normative arguments for according gloss the kind of significance that he ascribes to it.  These include normative reasons for thinking that practices satisfying the vague and possibly defeasible criteria by which “gloss” is defined, including acquiescence, are more likely to reflect accreted wisdom about the practical requirements of effective government than other past practices of the President or Congress.  (pp. 12–15, 25–30)  In addition, Bradley self-consciously crafts his thesis about “gloss” to achieve what he evidently regards as a reasonable “fit” with what has historically happened both in the courts and in public debates about the scope of presidential and congressional powers.

            If we viewed Bradley’s argument as Dworkinian in form, or as capable of being reframed in Dworkinian terms, the question would of course remain whether it was more persuasive than other arguments that also could be cast in a Dworkinian mode.  I shall not pursue that question here in any depth.  Working out the details of the analysis would be challenging.  That said, I am inclined to believe that Bradley’s argument for the distinctive legal significance of gloss (as he defines it) in U.S. constitutional practice would be more persuasive if we assume the validity of Dworkin’s jurisprudential theory than if we posit the correctness of Hart’s.

If so, then an assessment of whether Bradley is correct as a matter of law about the significance of “gloss” would appear to depend on whether Dworkin’s theory offers a correct account of the grounds on which legal claims should be adjudged either true or not true.  Followers of Hart, and adherents of some other theories as well, would of course answer in the negative.  This, obviously, is not the time or place for me to advance and defend a general jurisprudential theory.  In other writing, however, I have expressed more sympathy for Hart’s general jurisprudential theory than for Dworkin’s.  And anyone who shares that judgement is likely to conclude, as I do, that Bradley’s argument for defining gloss in the vague way that he does and for crediting it as thus defined with the legally distinctive force that he ascribes to it (in comparison with other past presidential and congressional practices) is unproved.

How damning is this conclusion?  The answer seems to me to depend on issues of perspective and emphasis.  On the one hand, Historical Gloss and Foreign Affairs does not persuade me that “gloss,” as Bradley loosely defines it, possesses a unique, law-changing capacity that other practice-based arguments do not possess as a matter of constitutional law.  On the other hand, Bradley is indubitably convincing that lawyers make lots of practice-based arguments, including ones that satisfy his criteria for constituting “gloss,” and I understand the nature of their debates much better after reading his book.  My own conclusion, which is deeply informed by the evidence that Bradley adduces, is that when Presidents, members of Congress, and their defenders make constitutional arguments based on different kinds of practices (in the quotidian sense), different lawyers, judges, and members of public and political audiences are likely to respond differently.  Some will share Bradley’s view of what constitutes gloss and of the legal significance that gloss, as so defined, uniquely possesses.  But others will not.  And whose argument will prevail in any particular case will likely depend on contingencies that may be unpredictable in advance.  If constitutional law is a practice (in the jurisprudential sense), as I agree with Bradley that it is, then it is, in my view, the kind of practice that must be expected to evolve over time.

It is based on this view of the nature of our constitutional law that I ultimately find Historical Gloss and Foreign Affairs to be as helpful, important, and even potentially indispensable as I said it is at the beginning of this comment.  Going forward, no competent lawyer arguing about presidential and congressional authority over foreign affairs, and no searching student of constitutional law, will be able to ignore Bradley’s historical case studies and analytical insights.  And for many purposes, it is more important to understand the argumentative techniques that participants in high-stakes constitutional arguments deploy, and will continue to deploy because of their likely persuasive effects, than it is to know whether their arguments are based on valid sources of legal authority in the sense that Hart and Dworkin debated. 

Richard Fallon is Story Professor of Law, Harvard Law School. You can reach him by e-mail at rfallon@law.harvard.edu.