Elena Chachko

The Supreme Court's reliance on history and "tradition" to delineate abortion and gun rights has generated vigorous debate about history and constitutional interpretation. In Historical Gloss and Foreign Affairs, Curt Bradley shifts the conversation from rights to the separation of powers domain. Bradley shows through meticulous analysis of historical case studies that sustained congressional and executive practices have redefined the respective constitutional powers of the branches over time. Bradley argues—following in the footsteps of Felix Frankfurter—that practice invariably shapes constitutional meaning as “gloss” on the constitutional text. 

Bradley’s account is richly descriptive, but it is much more than that. He situates gloss within the broader constitutional theory landscape and develops a normative case for gloss. He argues that gloss can coexist even with some versions of originalism, which would appear to exclude reliance on ever-evolving practice in constitutional interpretation. The book underscores that much of American constitutional law is developed outside the courts in the interactions of the political branches.

The book offers a healthy dose of realism and pragmatism about the Constitution’s operation. Constitutional text is rarely dispositive. Nor is recourse to “original meaning”. And as Bradley persuasively argues, there is practical wisdom in respecting settled practice grounded in interbranch bargaining. An approach sensitive to practice is more likely to respond to modern changes and needs the founders scarcely imagined. Yet like any approach that derives an “ought” from an “is”, gloss motivates objections. I had the privilege of hosting a conversation with Bradley at Berkeley Law, in which he addressed some of the main critiques of gloss as a source of constitutional law. 

One significant concern is that reliance on practice dramatically expands executive power over time. The executive’s institutional traits—its ability to act swiftly, divert resources, and use the bully pulpit to create facts on the ground—gives it a substantial advantage over Congress in separation of powers conflicts. If a series of such executive wins is credited as authoritative gloss on the Constitution, the implication is that might makes right. The dynamic risks undermining the Constitution’s careful distribution of powers over time and facilitating executive overreach. 

Bradley of course acknowledges this critique. An important contribution of the book is in dispelling the common belief that the President always prevails in separation of powers conflicts, highlighting instances in which Congress had the upper hand. The immigration arena is one but certainly not the only example. In other words, Congress, not just the President, may benefit from gloss. Bradley also argues that gloss may constrain presidential power because presidents often rely on historical precedent to justify their actions. In that sense, historical precedent operates much like judicial precedent. 

Bradley also points out that it’s hard to say precisely how much presidential power is too much. Judgments about the propriety of presidential power exercises appear to hinge on specific policy preferences and there is no clear baseline. For instance, some may support the executive becoming aggressively involved in Ukraine despite congressional opposition because they believe a strong U.S. role there is necessary to defend against Russia and uphold international norms. But those same voices bemoan other presidential actions like the termination of certain international agreements and view them as executive overreach. 

Another common critique of history-reliant approaches to constitutional interpretation is the cherry-picking problem. With some exceptions, lawyers and judges are not historians. They are untrained in rigorous historical research, and they are largely unfamiliar with the norms historians follow to control for bias. Elevating gloss as a source of constitutional law could exacerbate this problem, particularly given the Supreme Court’s lack of clear methodology for the use and vetting of historical evidence. An adjacent functional challenge is the resources that meticulous historical research requires. An OLC attorney-adviser or judicial clerk simply cannot be expected to dedicate their time to scrutinizing historical episodes. When they do, the product is hardly reliable. 

Bradley addresses these types of concerns and proposes safeguards against cherry-picking. In his account, government practices must meet certain criteria to count as gloss. They must be longstanding, and the affected branch must acquiesce. While these requirements do not entirely eliminate bias, they at least set an evidentiary bar that echoes current judicial practice. The open questions are how faithfully judges adhere to these requirements, what would suffice as acquiescence, and how long is long enough for a practice to be established. Congress often fails to censure the President or contradict his policies because of inertia, collective action problems or misaligned incentives. Such failures should not always be interpreted as agreement or acquiescence. 

A final concern I’ll note here is that gloss could launder controversial and even wrong legal interpretations over time. The interplay between gloss and international law illustrates. Bradley challenges the common perception that adherence to international law constrains the political branches, arguing instead that the executive often uses international law to bolster its own power. This effect is particularly strong in the area of war powers, where presidents have for decades marshalled controversial international law arguments to justify increasingly ambitious actions. As Bradley argued in previous work with Jean Galbraith, presidents have used congressional and international authorizations to use force as substitutes, not supplements. This has created a two-level dynamic that has expanded presidential war powers over time both in absolute terms and relative to Congress. 

Consider, for example, President Truman’s reliance on a UN mandate to justify the U.S. intervention in the Korean war and to (ultimately unsuccessfully) seize steel mills at home to sustain the war effort. Or President Obama’s reliance on a UN Security Council resolution to justify the U.S. intervention in Libya in 2011. Or the legal framework developed across presidential administrations to govern the U.S. global war on terror, which has been harshly criticized by international lawyers. A somewhat similar dynamic evolved more recently in the area of international agreements. 

Bradley is right that, as a descriptive matter, international law often serves to empower, not to constrain, the executive. (In other work I have argued that international law can, and should, empower administrative agencies in many ways when they engage in domestic regulation). Yet this is not a necessary outcome. International law should normally have a constraining rather than empowering function in areas like war powers. That executives have used international law in this context to bolster their power, to compensate for ambiguous or missing domestic authorizations, and to engage in increasingly ambitious actions without congressional approval arguably represents a misapplication of international law. Giving authoritative weight as gloss to instances of use of force based on highly controversial or even plainly wrong interpretations of international law risks legitimizing such legal positions and weaving them into the fabric of the constitutional law of separation of powers. 

Bradley responds to this concern by stressing the domestic focus and function of gloss and the fact that the United States is not just a consumer but also a contributor to the development of international law. When it articulates international law positions that push the envelope of existing international law, it legitimately exercises that contributor role. And it is not the place or inclination of domestic courts to police that role on the international plane. But the point stands: gloss gives authority and precedential power to unsettled and controversial legal positions. 

All this notwithstanding, Bradley’s book offers a nuanced and compelling exploration of gloss as a vital and underappreciated mechanism in constitutional separation of powers law.  The book oscillates seamlessly between theory and rich historical detail. It ties together major threads that would speak to a variety of audiences: constitutional theory, uses of history in constitutional law, executive power, congressional authority, and the interplay between domestic and international law. 

The book could not have come at a better time. As recourse to history in constitutional law seems to be on the rise at the Supreme Court and beyond, thoughtful, rigorous treatments of the function of history in constitutional law are indispensable. The ideas in the book, which centers on foreign affairs, should inform other pressing debates in this extraordinary moment in public law. For example, can gloss help protect the administrative state against political and constitutional challenges, such as the revival of non-delegation doctrine? Bradley has given us better tools for considering this and many other questions.