What Gloss Glosses Over

Guest Blogger

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

Jean Galbraith

When I teach Foreign Relations Law, I assign George Washington’s Message to the House Regarding Jay Treaty Documents on the first day of class.  This missive has it all:  an inter-branch fight, high practical stakes, and well-marshalled constitutional argumentation.  But my favorite sentence invokes historical practice.  Urging that the House has no role in treaty-making, Washington writes:  “In this construction of the Constitution every House of Representatives has heretofore acquiesced, and until the present time not a doubt or suspicion has appeared, to my knowledge, that this construction was not a true one.”  It had been only seven years since the Constitution entered into force, and yet the Founders were already looking to historical practice!

Curt Bradley’s book on Historical Gloss and Foreign Affairs illustrates how historical gloss matters to foreign affairs.  Gloss, as Curt defines it, is “looking to longstanding practices of government institutions” in “interpret[ing] other constitutional materials, most notably the constitutional text and structural inferences from the text, when those materials are thought to be unclear.”  As his subsequent chapters show, a great deal is thought to be unclear.  Gloss has led to sharply different practices today than existed at the time of the Framing, including how international agreements are made and how much the President can unilaterally authorize uses of force abroad.  Overall, Curt finds that gloss has considerably increased presidential power over time.  Like fortune, gloss favors the bold.  This increase, however, is mostly to concurrent presidential powers rather than to exclusive presidential powers.  

Curt also makes a powerful argument for why gloss should matter.  Gloss allows for change over time – for “needed constitutional updating,” contra stand-alone originalism.  Yet gloss also presumes that “longstanding practices of government institutions – disciplined by regular elections – are indicative of what works reasonably well, or at least better than anything the judiciary is likely to impose.”  In other words, gloss serves as a beneficial middle ground between stagnancy and upheaval. 

But gloss is not just the shine that history puts on constitutional law.  It is also a way to conceal flaws – to gloss over problems.  We think that there is good law that constrains our leaders and overlook just how thin this law can be.

Curt’s book focuses on how power is divided between Congress and the President.  This division of power, however, does not exist in a vacuum.  Normatively, we might want robust Presidential powers vis-à-vis Congress if the President is constrained by substantive legal rules that prevent particularly horrific behavior.  By contrast, if substantive constraints do not exist, then we might want to require Congressional authorization before the President can act.  As I’ve shown elsewhere, historical accruals of power to the President often begin when the President is acting in accordance with substantive legal rules, including from international law, and then take on an unconstrained life of their own.  Of the great flaws of gloss, which I think is under-addressed in Curt’s otherwise excellent book, is the way in which gloss erases this broader context over time. 

Consider Greenland.  (I write this sentence with bemused horror.)  Earlier this month, President-Elect Trump said that “We need Greenland for national security purposes” and that he was “not going to commit” to ruling out taking it by military force.  He has also called for a “deal” with Denmark that would move Greenland into U.S. hands.

From a gloss perspective, as a matter of constitutional law President Trump has considerable ability to accomplish this goal without Congress.  The final step of actually annexing the territory would require a treaty or act of Congress.  (Although Curt does not have a separate section giving his views on gloss and annexation, I expect he would agree with me on this.)  But what about the use of force to take over Greenland?  Curt writes that “[practice] does … appear to support the executive branch’s claim that limited military engagements that are not expected to be protracted in duration or to involve the commitment of substantial ground troops need not be authorized by Congress.”  As Curt also notes, “the line between smaller and larger engagements is far from self-evident.”  I would expect President-Elect Trump to have lawyers who could claim to fit military engagements in Greenland in the “small” bucket.  And what about a “deal”?  Curt writes that practice has led to considerable executive branch power to make sole executive agreements, although “these agreements likely need to be connected in some way to the president’s independent constitutional authority, such as recognition, military affairs, the settlement of claims, and the like.”  Presidents also claim and use the power to make nonbinding commitments.  As with the use of force, I expect that at least some version of a deal with Denmark handing over practical control of Greenland to the United States would fall within the President’s constitutional authority.

President Trump may thus have constitutional authority to gain practical control of Greenland without congressional authorization.  In a world where other forms of law would constrain President Trump, this could be what we want out of gloss.  But without asking how gloss interacts with these other forms of law – and with outcomes generally – it is hard to know whether gloss is generating desirable presidential power or problematic presidential power.

Taking this broader context into consideration, I think we should embrace most gloss-based developments with respect to international agreements but disavow at least some developments with respect to uses of force.  As to the making of international agreements, international law and practice continue to provide relatively effective constraints on presidential power.  Returning to Greenland, President Trump cannot make a “deal” without the agreement of Denmark, which will not be forthcoming. The requirement for a deal also helps address the problem that American presidential elections are often poor tools for constraining presidential abuses of power that are inflicted primarily on non-citizens abroad.  Greenlanders cannot vote in U.S. presidential elections, but their political voice in Denmark helps protect them from a deal.  Overall, the gloss-based move away from Article II treaties towards executive agreements and nonbinding agreements has furthered international cooperation, consistent with international law.

By contrast, international law and practice does not provide a comparable constraint on presidential uses of force.  International law does indeed forbid President Trump from taking Greenland by force.  It would be a violation of Article 2(4) of the U.N. Charter, which prohibits the threat or use of force against the territorial integrity of another state.  It would be a violation of Article 1 of the North Atlantic Treaty in which the treaty parties “undertake … to settle any international dispute in which they may be involved by peaceful means”.  (And it would violate other principles of international law as well.)  But President Trump does not appear to treat international law on the use of force as a direct constraint.  Nor are his lawyers likely to recognize any effects that international law might have on constitutional law.  One might think, for example, that historical gloss would require the U.S. President as a matter of constitutional law not to act in violation of U.S. treaty obligations.  (See the Supremacy Clause and the Take Care Clause.)  But here the permissiveness of gloss as it has evolved and been interpreted by the executive branch is startling.  Consistent with recent executive branch practice, Curt’s chapter on uses of force does not even mention the possibility that the President could be constitutionally constrained in uses of force by U.S. treaty obligations.  Given all the disrespect for the guardrails of international law on the use of force, we should be deeply concerned about historical gloss that constitutionally authorizes the President to use force unilaterally abroad in an aggressive manner.  

Overall, Curt suggests that we must either take gloss or leave gloss.  He is in the “take” category –and if those were the only options, then I would be too.  But I think broader context gives us more power to pick and choose – to focus not on gloss but on whether gloss is furthering a good system.  The Framers sought to establish a wise government that operated effectively in foreign affairs yet was subject to reasonable guardrails.  That can still be our lodestar today. 

Jean Galbraith is a Professor of Law at Penn Carey Law School. You can reach her by email at jgalbraith@law.upenn.edu.