Curtis Bradley
In
my new book, Historical Gloss and Foreign
Affairs: Constitutional Authority in Practice, I document how the U.S.
constitutional law of foreign affairs has been shaped over time by the
practices and interactions of Congress and the executive branch. These
practices, the book explains, have “glossed” the meaning of the Constitution’s
text and structure—and this has been true since the very beginning of the
country. As the book documents, the political branches have filled in and
clarified constitutional meaning, on issues ranging from the recognition of
foreign governments, to the conclusion of executive agreements, to the use of
military force. In addition to providing examples of foreign affairs authority
that have been glossed through practice, the book situates the historical gloss
approach to constitutional interpretation within broader debates about
constitutional theory.
I
am deeply grateful to the participants in this online symposium for their
engagement with the book, and to Jack Balkin for hosting it. The commentators
are all terrific scholars, and they are methodologically and ideologically
diverse in their perspectives. I cannot do justice in this post to their
thoughtful reflections, so instead I will just touch on a few points. (For a
broader description of the book and what it seeks to accomplish, readers might also
be interested in the five posts that I wrote on the Volokh Conspiracy
site on the eve of the book’s release.)
My
Descriptive Account
The
contributors to this symposium largely accept the book’s descriptive claim—that
historical gloss is and always has been a significant component of
constitutional reasoning in the foreign affairs area. It started in the George
Washington administration and has never stopped. (Julian Mortenson makes a strong argument that
gloss’s roots are much deeper and can be found in pre-Founding British practice,
a possibility that merits further study.)
As
the book shows, historical gloss has been a consistent staple of constitutional
argumentation and interpretation in the executive branch, Congress, and the
courts, and not only in the foreign affairs area. In many ways, gloss serves a
role akin to judicial precedent, except that the precedent is principally
coming from outside the courts. Taking this non-judicial precedent into account
yields a much richer portrait of our constitutional law. As Justice Frankfurter
observed, “It 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.”
Instead
of contesting the history, the commentary primarily focuses on methodological
and normative issues, some of which are discussed in the book. Before considering
those issues, I would note that the book’s descriptive claim likely has some
normative significance: that is, the prevalence of
gloss-based reasoning—throughout our constitutional history, across partisan
divides, and in all three branches of government—is suggestive of its utility. The foreign affairs provisions
of our Constitution have never been formally amended in the more than 230 years
of our constitutional history, but during that time both the nation and the
world have experienced monumental changes that could not have been envisioned
by the Founders. Reliance on historical gloss has allowed for needed
flexibility and adaptation in our constitutional system, and this helps explain
its consistent appeal.
Methodological
Issues
Turning
to methodological considerations, Mike Ramsey raises excellent questions
about how historical gloss and other sorts of post-Founding historical
materials relate to originalism. As Ramsey notes, the Supreme Court is
struggling with these questions in a variety of contexts, not just in foreign
affairs. As I indicate in the book, I believe that reliance on historical gloss
is most defensible in the context of the separation of powers—a context in
which courts often maintain a low profile and in which the political branches
themselves have some capacity to bargain and work out accommodations over time.
Very different issues are presented by invocations of historical materials in
other contexts, such as with respect to individual rights—a topic that I intend
to write about in future work. Even in the context of the separation of powers,
Mike suggests, and I agree, that historical gloss interacts with other
modalities of interpretation, such that the strength of the historical
materials required for gloss likely varies depending on the strength of other
interpretive considerations, such as the text, original understandings, and structural
inferences.
This
last point provides a partial answer to Dick Fallon’s philosophical reflections
on gloss. As the book makes clear, gloss does not operate as a freestanding
source of law. It is instead one of the modalities of constitutional
interpretation, and it operates in conjunction with other modalities. Viewed
this way, I would resist Dick’s framing of the question as one about whether
gloss can have “law-altering status.” Gloss
instead should be viewed as part of the materials that help inform and settle
the meaning of law. That helps explain why gloss is likely compatible with at
least some versions of originalism. As a result, I do not think it is quite
right to contrast gloss, as Dick does, with “the
Constitution’s properly ascribed meaning.” (To the extent that Dick might have over-read my
jurisprudential claims, that is certainly my fault for not being sufficiently
clear.)
That
said, Dick notes, and I agree, that the
specific framework that the book suggests for when gloss should be credited could
be seen as more Dworkinian than Hartian in character, in that it aims for a
reasonable fit with the practice while also incorporating standards that the
book suggests are useful in operationalizing this approach to interpretation. Not
everyone will agree with my assessment of the latter point, and I take Dick’s cautionary
reflections mainly to be in that vein. It is worth noting, however, that if
there had to be widespread agreement on the operational details of a
methodology in order for it to be considered legitimate, all constitutional
methodologies would fail. Moreover, in considering the desirability of an
interpretive approach, it is useful to compare it to the available
alternatives, and the book contends that no competing theory holds up, at least
in the foreign affairs area, as well as gloss.
To say that it is not
quite right to define gloss in law-altering terms does not mean that
constitutional understandings can never change as a result of gloss. They can,
and the book documents a number of changes in understandings with respect to
foreign affairs authority. As the book notes, this can be viewed as a form of
what has been termed “constitutional construction.” That is, the constitutional
text can be seen as leaving open interpretive space that gloss can fill in over
time (Larry Solum describes this construction as “the determination of legal effect,”
but there are also other formulations), and in some instances that space might
be filled in one way for a time and then filled in differently as conditions
shift. How much space there is for such construction can of course be debated,
and the inquiry is complicated by the fact that textual interpretation is
itself likely
affected by practice.
The evolution of gloss, it
should be emphasized, is enabled in part by the lack of robust judicial review
in the foreign affairs area, stemming from both justiciability limitations and
narrow decisionmaking. If courts intervened more frequently and decided more
broadly in this area, actors would likely organize around the judicial
decisions and gloss would have trouble flourishing. But there is little reason
to believe that a top down judicially-managed law of foreign
affairs would be better than one grounded in the longstanding operations of
government. Courts appear to have intuited this point and have limited their
interventions accordingly. Another advantage of this approach is that, by
looking to an accretion of practice over multiple political alignments, it
provides some
Burkean resistance to efforts by one particular President, including the
current one, to engage in radical norm-breaking.
Normative Issues
Turning
to more normative issues, I should emphasize that the book does not claim that
gloss-based developments are always normatively desirable. Surely they are not,
for some of the reasons that Jide Nzelibe usefully highlights. The book merely claims that courts are unlikely to do
better than the longstanding practices of the political branches with respect
to the distributions of foreign affairs authority—especially when those
practices are bipartisan, have persisted over many administrations, and are not
generating significant interbranch contestation. This is in part because courts have less
information than the political branches about the practical needs of governance
and also because practices that constitute gloss are often embedded within an array
of tradeoffs and compromises, which the courts, as a practical matter, cannot
assess or disentangle within the structure of litigation. That said, the book
fully supports judicial interventions in certain contexts, such as when the
rights of individuals are at stake.
As with any mode of
constitutional reasoning, there is a danger that gloss will be invoked
inconsistently in a manner that favors an interpreter’s preferred outcomes. I
tried hard in the
book to be evenhanded in my own applications of gloss, accepting its outcomes
even when they do not perfectly align with my preferences. The book’s
assessments of the practice often favored presidential power, but in a number
of instances they supported congressional power. In part because of this
concern about consistency, I am hesitant to accept Jean Galbraith’s call for a more selective
“pick and choose” approach to gloss. I would also note that Jean
herself has properly criticized the Justice Department’s Office of Legal Counsel for being
inconsistent about when it is willing to credit longstanding practice.
Jean
suggests that our view about whether to credit gloss-based accretions of
authority should depend on the degree to which they are subject to other
checks, and on that basis she would distinguish the rise of executive
agreements (which she favors) from presidential uses of military force (which
she generally does not). This distinction could use more unpacking, given that
there are a variety of political and legal checks on uses of force (pressure
from the public and the opposition party in Congress, the need for
appropriations, pressures from allies and other countries, the War Powers
Resolution, the UN Charter, etc.). Whether those checks are sufficient
is of course another matter (although sometimes they might actually be too
strong—precluding needed humanitarian intervention, for example), but
determining their sufficiency would be a tall order for the courts. As for
executive agreements, the mere need to find one country in the world willing to
sign on to a deal might not be much of a check; if President Trump makes a
problematic arrangement with Putin, for example, the fact that Putin had to
sign on to it will not strike many as a sufficient check. In any event, a key
theme of my book is that Congress can provide more checks on gloss-based
presidential powers, including uses of force, and on that point Jean and I are
in full agreement.
One
of the concerns emphasized by Elena Chachko is related to Jean’s concern
but is more specific. She notes that some presidential actions have been based
on misapplications of international law—for example, when presidents have
incorrectly suggested that international law supplies them with domestic
authority to use force. An example might be President Obama’s use of military
force in Libya, which was justified in part due to the fact that a UN
Security Council resolution authorized nations to use force. Crediting
those exercises of presidential power as gloss, Elena worries, can legitimize,
or “launder,” problematic legal positions. My main response to this concern is
that these misapplications are not the product of gloss-based reasoning;
indeed, they are in lieu of it. It is precisely when government actors lack
longstanding historical support that they resort to other justifications, and
we should push back against such justifications when they are problematic (and
I have done so). In addition, as with any precedent-based approach, we should
be attentive to the circumstances of government action and resist crediting it
in materially different circumstances. Just because the Office of Legal Counsel
tends to be aggressive in how it reads past practice does not mean that we have
to accept its accounts, and my book in fact contests a number of these
accounts.
At
a more general level, and in partial response to Michael Gerhardt’s insightful and wide-ranging
essay, I should note that the book’s discussion of congressional power is
designed to complicate the “imperial presidency”
narrative that is common in descriptions of foreign affairs authority. While
expansions in presidential power over foreign affairs have often been justified
by reference to historical gloss, Congress has also benefited from gloss,
claiming many powers for itself that are not clearly addressed in the
constitutional text and disrupting claims of exclusive presidential authority.
A recent example is Congress’s effort to disallow
presidential withdrawal from NATO, a legislative measure that the book suggests
is supported by gloss. Like Gerhardt, the book favors the checks and balances
structure that is implicit in Justice Robert Jackson’s framework from Youngstown. It also, like Gerhardt,
celebrates the “passive virtues” that counsel judicial restraint in the
separation of powers area—in part because judicial interventions can have the
effect of further undercutting checks and balances.
Speaking of congressional power, Kristen Eichensehr raises
important questions about how Congress can effectively use this power to check
the executive branch’s accretion of authority. While the book contends that
Congress should normally prevail when it enacts a statute limiting executive
action, for a variety of political and process reasons it is often difficult
for Congress to take this step. The book suggested that congressional
non-acquiescence for purposes of gloss can occur through actions short of the
enactment of a statute—in particular, through various forms of congressional
“soft law,” such as non-binding resolutions—because those actions are evidence
of continued inter-branch (and inter-party) contestation. I agree with Kristen
that this idea could use more development.
Conclusion
Much more could be said.
My main reaction to the commentary in this symposium is appreciation—for the
care and fairmindedness of the analysis and for the willingness of these
scholars to join me in thinking through foundational questions concerning our
constitutional law of foreign affairs. One of my goals in the book was to shift
some of our attention away
from the Supreme Court as the font of constitutional law, and I view the
symposium contributions as helping to promote that goal. To the extent that
some of the contributions highlight limitations on the use of historical gloss,
the points are well taken, and the book tried to anticipate most of them.
Curtis A. Bradley is the Allen M. Singer Distinguished Service Professor of Law at the University of Chicago. You can reach him by e-mail at bradleyca@uchicago.edu.