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.