Glossing the Foreign Affairs Constitution

 
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.