“[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.”

-Justice Felix Frankfurter, Youngstown Sheet and Tube v. Sawyer

Justice Frankfurter’s appeal to historical government practice—“the gloss which life has written”—does not fit neatly into either originalist or nonoriginalist approaches to constitutional interpretation. But reliance upon historical gloss is often decisive in resolving the most contentious questions of constitutional law relating to foreign affairs and separation of powers, argues Professor Curtis Bradley in his timely and authoritative Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. Bradley’s study reveals why originalists should welcome the use of historical gloss as a crucial interpretive ally in fending off nonoriginalist appeals to interpretive methods untethered to either text or history. Historical gloss is not originalism, and it should not replace originalist interpretation. But it is hard to imagine a functional originalist Constitution without it.

Historical gloss refers to “[d]eeply embedded traditional ways of conducting government” by the executive and legislative branches that arise over decades or even centuries of practice that can help to explain unclear text or fill textual gaps. For example, the Constitution says that the Senate shall give “advice and consent” for any treaties, but every president since Washington has ignored the “advice” requirement and negotiated treaties without any Senate consultation, seeking only the Senate’s “consent.” The Supreme Court has never considered this issue, in no small part because historical gloss shows that there is a consistent and long-standing interpretation accepted by both the executive and the Senate.

Historical Gloss and Foreign Affairs investigates much more consequential and controversial interpretive questions in the law governing U.S. foreign relations. Bradley selects four of the most well-known foreign affairs powers for extended treatment: the power to recognize foreign governments, the power to make non-treaty international agreements, the power to terminate treaties and executive agreements, and the power to use military force. He also investigates less dramatic and well-known foreign affairs legal controversies over Congress’ foreign affairs power and its delegation of related powers to the executive.

The specific case studies illustrate the practical application of historical gloss and how it is distinct from originalism. In the context of war powers, Bradley shows how historical practice has reached several settled understandings that might have been controversial based solely on the constitutional text or some originalist interpretations of war powers. While the Constitution grants Congress only a “declare war” power, Congress has authorized numerous presidential uses of force, including in Vietnam, Iraq, and the war on terrorism, without any formal declaration of war. These “AUMFs” do not appear in the constitutional text, but they enjoy a long history of presidential practice without much congressional objection. Historical gloss also supports presidential legal authority to use force abroad to protect or rescue U.S. citizens without any congressional authorization, even though this result finds little support in most originalist interpretations.

Similarly, in the context of international agreements, Bradley shows that gloss, and not the original understanding, has bolstered the practice of using congressional-executive agreements instead of treaties for most U.S. international agreements. The Constitution lays out only one process—treaty making by the president with advice and consent of two-thirds of the Senate—and there is little originalist evidence that other agreement processes were intended to play a major role in U.S. international agreement practice. Yet the process of using executive agreements rather than treaties—sometimes with authorization of federal statutes—has become accepted in large part due to the historical practice of both Congress and presidents during the 20th century. No U.S. trade agreements have been approved via the Article II treaty process since before World War II, and the vast majority of all international agreements made by the U.S. avoid the Article II treaty process.

Gloss can sometimes change directions over time. In perhaps the most interesting case study, Bradley details how up until the 20th century, most presidents and congresses seem to have assumed that a treaty could only be terminated with congressional approval. Thus, Congress, and not the president, terminated treaties with France during the 1798 Quasi-War. Congress generally directed the president to terminate treaties during the century that followed, and presidents almost always followed those directives. Yet for reasons that are not fully understood, historical gloss over time started supporting the opposite outcomes. Presidents began claiming the unilateral right to terminate treaties without serious opposition from either Congress or the Senate so much so that the last four presidents have unilaterally terminated treaties without seeking congressional assent and without any serious objection on constitutional grounds from Congress or the courts. The gloss accumulated in these more recent decades has now settled that presidents of both parties can (and often do) unilaterally terminate treaties.

As Bradley acknowledges, reliance on historical gloss is often criticized for leading to outcomes that expand executive power at the expense of both Congress and the courts. One possible reason for historical gloss’ pro-executive bias is simply a matter of institutional competence: the executive branch has lawyers trained to invoke historical gloss and advise their presidents to take actions to develop and build historical gloss for future presidential actions. Congress, by contrast, has well-known collective action problems that make it harder for it to push back against gloss-based arguments. When the president invokes his right to terminate treaties unilaterally, for instance, Congress or the Senate as an institution may lose authority, but individuals or congressional parties may gain policy successes. Courts have no pro-Congress bias, and indeed, judicial interventions can sometimes prematurely codify pro-executive outcomes that go beyond what historical gloss would have supported. This is arguably what happened when the Court endorsed an exclusive presidential power to recognize foreign states in Zivotofsky v. Kerry.

A more serious originalist criticism of historical gloss is that it might be used to override—rather than supplement—originalist interpretations of the constitutional text. The clearest example of the power of historical gloss to defeat an originalist position occurred outside the foreign affairs context in the Supreme Court’s 2014 decision in NLRB v. Noel Canning, where the Court partially limited the presidential recess appointments power.

In that case, the Court refused to allow President Obama to unilaterally appoint executive officials during a three-day Senate recess. The Court’s majority, in an opinion by Justice Breyer, held that historical gloss led to the conclusion that a three-day recess was not long enough to support the use of the recess appointments power. But historical gloss also led Justice Breyer to reject the originalist view, espoused in Justice Scalia’s concurrence, that the recess appointments power can only be used during inter-session recesses. In other words, while there were strong originalist arguments for this more restrictive view, the lack of historical gloss convinced a majority of the Court to forge a middle way.

Noel Canning illustrates the tension between originalism and historical gloss. While historical gloss usually can be said to reflect the constitutional understandings of the different political branches over time, in the case of recess appointments, it seems that the president and Congress might have failed to understand the originalist position rather than evolving a common understanding of it with experience over time. Indeed, Noel Canning is a cautionary tale for historical gloss enthusiasts: the non-originalist result has created uncertainty over how long a recess must be to allow a recess appointment, and it has opened the door to presidents’ manipulation of the recess appointment power to aggrandize their power over appointments at the expense of the Senate.

The Noel Canning dilemma reminds constitutional interpreters to be cautious about relying too much on historical gloss, especially when there is a solid originalist alternative. Yet it is also hard to imagine a purely originalist constitution, particularly in the realm of foreign affairs, without the valuable insights historical gloss provides about how prior presidents and congresses conceived of their constitutional powers. Courts that undervalue historical gloss might be tempted, for instance, to intervene on originalist grounds to invalidate practices such as the widespread use of congressional-executive agreements or to sharply restrict unilateral presidential uses of military force. Such disruptions to long-standing practices of the political branches should rarely occur since the task of courts should be, if at all possible, to avoid creating inter-branch conflict and constitutional crises.

Bradley does not express a strong view on whether and how historical gloss should be used in conjunction (or in opposition) to originalism. His work is primarily descriptive and allows readers to draw their own normative conclusions. This careful, nuanced, and unbiased approach, which is characteristic of all of Bradley’s scholarship, has made him the leading authority on the actual content of the law of foreign relations. But like any good scholar, his work leads to more questions than answers. The rest of the foreign affairs law world, both scholars and practitioners, will have their work cut out for them as they try to combine the importance of historical gloss with the ongoing normative struggle over the proper method of constitutional interpretation.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].