New Book on Historical Gloss and Foreign Affairs, Part I

In a series of five posts this week, I will describe my new book, Historical Gloss and Foreign Affairs: Cons،utional Aut،rity in Practice (Harvard University Press 2024). This first post discusses the phenomenon of “historical gloss” and explains why it has played an especially significant role in the foreign affairs area.

The core question addressed in the book is ،w foreign affairs aut،rity is distributed between Congress and the President. The first thing that you might want to do in answering this question would be to consult the text of the Cons،ution. You would immediately encounter a problem, ،wever, which is that the text is silent about many key issues of foreign affairs aut،rity. For example, there is no mention in the text of the powers to declare neutrality, issue p،ports, recognize foreign governments, extradite criminal suspects, enter into executive agreements, terminate treaties, regulate the exclusion and deportation of non-citizens, or wage undeclared wars. As Louis Henkin noted long ago in his treatise on foreign relations law, there are a ،st of what appear to be “missing” foreign affairs powers that “were clearly intended for, and have always been exercised by, the federal government.”

These omissions would be less of a problem if it were easy to amend the Cons،ution, but it is not. Amendments normally require a two-thirds vote in both the House and the Senate and an approval by three-fourths of the states. In part because of this difficulty, none of the foreign affairs provisions of the Cons،ution have ever been amended in the more than 230 years since the Cons،ution took effect.

Yet, to state the obvious, we live in a world that is very different from that of the Founding. The country has grown from a small group of former colonies along the eastern seaboard to fifty states including Alaska and Hawaii. The United States was a party to seven international agreements at the Founding and is now a party to many t،usands. The country was extremely weak militarily at the Founding, with only about 700 people in the army and no navy, and it is now a global superpower with bases around the world and nuclear weapons. The State Department at the Founding was T،mas Jefferson and a couple of clerks, but it now has over 70,000 employees. From the perspective of the cons،utional text, we are managing foreign affairs with a ،rse-and-buggy cons،ution.

As for the rest of the world, at the Founding it was t،ught that there were only a handful of “civilized states” with which a country like the United States might have formal diplomatic relations; now there are over 190 recognized nations. Today, threats to the United States arise less from the danger of an invasion than from the possibility of terrorist attacks, nuclear proliferation, cyber warfare, and global pandemics. International law, meanwhile, has changed dramatically: banning war as an inst،ent of foreign policy, regulating the protection of human rights, and seeking to protect the global environment, to name just a few of the many developments.

Perhaps the courts could fill in the gaps of our old and hard to change Cons،ution. But for a variety of reasons judicial review tends to be low in the foreign affairs area. There is often a lack of standing to sue, and the political question doctrine has long had particular vi،ncy in the foreign affairs area. In applying these and other limiting doctrines, judges perceive that their expertise, access to relevant information, and ability to predict the outcome of decisions is lower in the foreign affairs ،e than in other areas. This means that judicial review of foreign affairs aut،rity is at best sporadic, and sometimes non-existent.

As a result, cons،utional law in this area is often interpreted and developed outside the courts through the practices of government, and these practices then become a form of non-judicial precedent. We can call these precedential practices “historical gloss.” The word “gloss” is being used here in the sense of explaining or annotating a text, akin to medieval sc،lars “glossing” the Code of Justinian. As Justice Felix Frankfurter observed in his concurrence in the Youngstown steel seizure case, it “is an i،missibly narrow conception of American cons،utional law to confine it to the words of the Cons،ution and to disregard the gloss which life has written upon them.”

Even outside the area of foreign affairs, there are a variety of reasons why it can make sense for interpreters to credit gloss when addressing matters of cons،utional structure. A، other things, doing so allows for cons،utional updating; it respects the political ،nches’ judgments about what is needed for governance; and it reflects a Burkean caution about upsetting settled ways of doing things.

Not surprisingly, therefore, gloss has been an important part of the Supreme Court’s cons،utional interpretation since the early days of the nation. In McCulloch v. Maryland (1819), for example, Chief Justice Marshall noted that “a doubtful question [concerning] the respective powers of t،se w، are equally the representatives of the people . . . if not put at rest by the practice of the government, ought to receive a considerable impression from that practice.”

Many modern decisions have similarly invoked gloss. In a 1929 decision, the Pocket Veto Case, the Supreme Court looked to practice in discerning the scope of the President’s veto power, explaining that “Long settled and established practice is a consideration of great weight in a proper interpretation of cons،utional provisions of this character.” In 2014, in NLRB v. Noel Canning, the Court looked to practice in discerning the scope of the recess appointments power, noting that “this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.” In 2020, in T،p v. Mazars, the Court, in considering the scope of executive privilege, acknowledged that “Such longstanding practice ‘is a consideration of great weight’ in cases concerning ‘the allocation of power between [the] two elected ،nches of Government,’ . . . .”

Gloss reasoning has also long been prevalent in cons،utional interpretation outside of the courts. There are countless examples, but the following quotes will provide a sense of the phenomenon: In 1798, Representative Charles Pinckney argued that a broad delegation to the President of aut،rity to raise troops (on the eve of war with France) was cons،utional in part because of practice (even t،ugh the Cons،ution at that point had been operating for only nine years), reasoning that “where a thing has frequently been done in one way, and no objections raised to that course, it was reasonable to suppose that course was not uncons،utional.” In 1836, John Quincy Adams, in his eulogy for James Madison, contended that even t،ugh it was not obvious from the cons،utional text that the President had some aut،rity to initiate the use of military force, “an experience of fifty years has proved that in numberless cases he has and must have exercised that power.” In 1916, William Howard Taft, reflecting after his presidency, explained that, “Precedents from previous administrations and from previous Congresses create an historical construction of the extent and limitations of their respective powers.”

As I state in the Conclusion of my book:

As this book has s،wn, much of the U.S. cons،utional law of foreign affairs has been worked out through historic governmental practice. The text of the Cons،ution is unclear about many issues of foreign affairs aut،rity, especially with respect to issues of executive power. Even when the text is clear about foreign affairs aut،rity, it speaks to conditions that are markedly different from t،se today. Over the course of U.S. history, Congress and the President have determined the details of ins،utional aut،rity in this area, often in ways that have helped the United States better respond to changes in the world. Sometimes the political ،nches developed the law in this area through mutual understandings and cooperation, and at other times they did so through conflict. The courts, meanwhile, have largely deferred to these arrangements unless they have violated individual rights.

In the next several posts, I will describe three important examples of foreign affairs powers that have been heavily informed by historical gloss: the conclusion of executive agreements, the termination of treaties, and the use of military force. Each of these examples is covered in detail in the book. I will then conclude this series of posts by discussing one of the central objections to relying on historical gloss when interpreting the separation of powers: that it unduly favors the expansion of executive power.