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Curtis Bradley examines how historical practices and precedents shape constitutional authority in U.S. foreign affairs, emphasizing the role of “historical gloss” in interpreting executive and congressional powers

Image courtesy of interviewee. October 10, 2024

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Curtis Bradley examines how historical practices and precedents shape constitutional authority in U.S. foreign affairs, emphasizing the role of "historical gloss" in interpreting executive and congressional powers

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Here are five key points from the video regarding the author's motivations and arguments about the American Constitution, particularly in relation to foreign affairs:

1. **Unique and Rigid Amendment Process**: The American Constitution is notable for being the oldest written constitution and for having a very difficult amendment process that requires substantial consensus, making significant changes nearly impossible in the current partisan environment.

2. **Gaps in Foreign Affairs Authority**: There are several areas related to foreign affairs that are not explicitly addressed in the Constitution, including recognition of foreign governments, issuance of passports, and regulation of immigration. The author notes the absence of constitutional video covering these critical areas.

3. **Role of Historical Practices**: The video argues that much of the understanding and interpretation of foreign affairs powers in the U.S. has come from historical practices and government traditions instead of judicial interpretations, which are scarce in matters of foreign affairs. This "historical gloss" fills in gaps left by the constitutional video.

4. **Presidential Power vs. Congressional Regulation**: The author explores how historical practices have led to a significant expansion of presidential powers, particularly in foreign affairs, often at the expense of the Senate's role. While presidents can act more flexibly due to these practices, Congress retains the authority to regulate and limit presidential actions when necessary.

5. **Broader Understanding of Constitutional Development**: The author emphasizes that constitutional law is largely shaped through everyday political processes and practices within government branches rather than solely through Supreme Court rulings. This insight suggests that the political dynamics and practices are equally, if not more, significant in shaping how constitutional law is understood and applied, especially in the realm of foreign affairs.

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Here are some key quotes from the video that encapsulate its main ideas:

1. **Motivation for Writing**: “What motivated me to write the book was partly the unique aspects of the American Constitution. it is basically the oldest written constitution in the world, and it's also one of the most difficult to change.”

2. **Amendment Process**: “The amendment process for the Constitution is exceedingly difficult. Two-thirds of both houses of the legislative branch plus three-fourths of the states all have to agree.”

3. **Foreign Affairs**: “Interestingly, the foreign affairs parts of the Constitution have never been changed. There have been no amendments to the foreign affairs parts of the American Constitution.”

4. **Judicial Interpretation**: “The courts have just tended to stay out of foreign affairs disputes... we just don't have a lot of judicial precedent clarifying or filling in gaps of the Constitution when it comes to foreign affairs.”

5. **Historical Gloss**: “Many of the gaps in the foreign affairs parts of the Constitution are filled in by the longstanding practices of government. I call that historical gloss.”

6. **Executive Agreements**: “The only video we have written in 1787 says that... the president has to get the approval of two thirds of the Senate... it’s not even clear the Senate could do that many agreements.”

7. **Growth of Executive Power**: “One of the things I do in the book is some of the chapters are about specific examples of powers that are not clearly in the constitutional video... where we accept today in large part.”

8. **Congressional Regulation**: “I argue that almost all of the time, Congress should win that fight. They should be able to limit the presidency when they want to do that, even in wartime.”

9. **Political Process vs. Judicial Process**: “Most of our constitutional law is done in the political process... we focus too much on Supreme Court case law... when so much of constitutional law is developed through other processes.”

10. **Checks and Balances**: “If the President can act free of statutory limits, then we really don't have checks between the two branches of government.”

These quotes highlight the author's exploration of the challenges and complexities of interpreting the American Constitution, especially in the realm of foreign affairs, as well as the balance of power between the presidency and Congress.

Challenges of Constitutional Change and Foreign Affairs

00:00:00 - What motivated me to write the book was partly the unique aspects of the American Constitution. it is basically the oldest written constitution in the world, and it's also one of the most difficult to change. The amendment process for the Constitution is exceedingly difficult. Two-thirds of both houses of the legislative branch plus three-fourths of the states all have to agree. And you can imagine, particularly in our partisan environments, in the modern era, that's effectively impossible to change the Constitution. It's always been difficult. And the Constitution was drafted in the 1780s, so,

00:00:40 - the world was very different then. the United States just starting out was very different. And interestingly, the foreign affairs parts of the Constitution have never been changed. There have been no amendments to the foreign affairs parts of the American Constitution, and yet we know the country, has changed in its foreign affairs capacities and its powers both in the presidency. The president is a very powerful actor in foreign affairs, but Congress also does a lot,

00:01:09 - And how, how does that work with an old constitution? And that really motivated my thinking about the book. those familiar with American constitutional law might ask, the next question, which is, well, maybe the way to fill in, some of the gaps that are likely to result or clarify this old constitution would be through the courts. And it is true in the US system. The Supreme Court more in the modern era than in the older eras, does a lot of work in clarifying, interpreting.

Judicial Silence on Foreign Affairs

00:01:44 - But that has never been the case for foreign affairs. the courts have just tended to stay out of foreign affairs disputes. They have avoided them through all sorts of limiting doctrines. they're very worried about their expertise in that area and their lack of information. And we just don't have a lot of judicial precedent clarifying or filling in gaps of the Constitution when it comes to foreign affairs. And then that results in a puzzle, which is,

00:02:16 - that are not addressed in the text of the Constitution and the courts are not filling them in. I'll just give you a few examples, but, but we, I could give you many, which is, there's no reference in the Constitution or who gets to recognize foreign governments and which sovereigns are recognized by the us. There's no, text about issuing passports or extraditing criminal suspects to other countries. there's no text about, even using military force

00:02:48 - For example, another big one, no text in the Constitution about regulating immigration, believe it or not. there may be reasons why the founders didn't write that in, but it's not in there yet. We know in the modern era, like all countries, there are regulations on immigration, sometimes controversial ones, yet not in the text of the American Constitution. And the claim of the book is that much of the, many of the gaps in the foreign affairs parts of the Constitution

Historical Gloss: Judicial Precedents Beyond the Courts

00:03:22 - of the courts without formal amendments to the text through the longstanding practices of government. I call that historical gloss. We can talk about that term. But the claim is that I documented, which is that in for many of these issues, we effectively have the practices of government creating sort of like judicial precedent, but not in the courts. And those precedents really have a big effect on debates and understandings about the law, in ways that are sort

00:03:53 - but obviously coming from Congress, coming from the presidency or other actors, historical gloss and the word glossier. And my phrasing is really, kind of an older understanding of that word. so imagine medieval scribes, they were called Glossier, a glossing the text of Dysonian or a theological text that is annotating or, helping to provide meaning to an unclear, text is kind of the core of what I mean by gloss.

00:04:27 - by a Supreme Court justice. it was a case in the 1950s about, Harry Truman, president Truman seized the nation's steel mills steel production during the Korean War. He was worried about a strike that would, you know, disrupt production of materials for the war. So he purported to try to seize the nation's factories. The Supreme Court said no, he did not have the authority to do that. But one of the famous opinions in the case said,

Interpreting Authority: The Role of Historical Practices in Constitutional Law

00:04:57 - When we try to decide these difficult questions of authority, one has to look at the, life of the Constitution and what Frankfurt are called, the gloss, which experiences written onto the text. And as I said earlier, courts often don't intervene in foreign affairs disputes. But when they do, and it's pretty rare and you know, happen happenstance, but when they do, they do look to and give a lot of weight to historical practices of Congress

00:05:29 - to do certain things, whether that authority is shared between Congress and the President, whether it's just the president's authority, whether the country has that authority at all. And since they don't have judicial precedent much of the time because the text of the Constitution is so old and often has nothing on point, the courts themselves, when they have to decide questions like they did in the still seizure case or other cases,

00:05:58 - to longstanding patterns of practice. And they understand that that practice has glossed, that has provided additional meaning to the Constitution that the United States has. That's a way of kind of updating the old constitution. It's, a way of making sure it's workable as times have changed. Imagine when the United States started, it was 13 former British colonies on the eastern seaboard of the United States.

Updating the Constitution: Historical Practices and Foreign Affairs

00:06:30 - and Hawaii, bases around the world, superpower nuclear weapons, lots of changes that founders could have never envisioned. And taking account of practices helps the Constitution basically, update itself to take account of changes over time. And I think the courts figure they're probably not going to do a better job of trying to update the text than the branches

00:07:01 - to operate in the international environment. And I can give you many examples, but there are many examples of which either inside or outside the courts authority has really been defined by this historical gloss rather than by the text of the Constitution. One of the things I do in the book is some of the chapters are about specific examples of powers that are not clearly in the constitutional text, but that we accept today in large part

00:07:34 - One of the examples that I have early in the book concerns the way the United States makes agreements with other countries. And it's just a really fascinating example because the only text we have written in 1787 says that if we're gonna make a treaty with another government, great Britain or any other country, the president has to get the approval of two thirds of the Senate, which is the, half of the legislative brand.

Challenges of Treaty Formation in U.S. History

00:08:04 - It means getting the agreement of a number of senators of the other party, even if the President's party's in control of the Senate. And now I think the founders knew it was going to be difficult. They actually didn't want a lot of treaties in the 1780s. They were worried about getting entangled in European affairs and treaties might pull the US into war. Now that is not the attitude of a modern country, particularly after the World War II and the United Nations.

00:08:34 - international agreements when it made the Constitution. It has many, many thousands of treaties all over the world. And of course there are many more countries to have treaties with. But this two third Senate requirement would be a very difficult, hurdle to try to get all of those. In fact, it's not even clear the Senate could do that many agreements with that sort of a process. So if we look at history even early on, presidents were making some agreements

00:09:05 - to two thirds of the Senate. We call that practice in the US executive agreements, mainly just to distinguish them from the ones that actually go to two thirds of the Senate. But a key point to remember is they're just all treaties. They're just more binding treaties with other countries. But we have to have a different label in the US because these are the ones that don't go to two thirds of the Senate. Now, they were relatively rare in the early days,

Executive Agreements: A Shift in U.S. Treaty Practice

00:09:36 - 1939 to 1989, I looked at the numbers on this, about 700 treaties in that 50 year period by the US with other countries, over 11,000 executive agreements with other countries. Again, more treaties, just a different label. And that's more than 90% of the US treaty practice today doesn't go through the only process specified in the text of the Constitution. Now that's largely a good development.

00:10:09 - player in international relations can more easily make agreements at cooperative arrangements of all sorts trade related, environment related, human rights related, you name it. And doesn't always have to go through this incredibly difficult process. In fact, it's so difficult when you combine it with our partisan situation right now. Almost no agreements in recent years have ever gone to the Senate and gotten processed. Presidents have just largely shifted over to

00:10:41 - Now, some of those, I should be clear, go to a majority of the Congress, but they don't go to two thirds of the Senate. And almost most people have accepted that this is a constitutional change that is legitimate. So Congress has largely accepted it. There are a few fights here and there. The executive has clearly accepted it. That's what it does. And there have been a few cases that have gone to the courts asking whether these executive agreements are constitutional.

Challenges of Constitutional Interpretation in Foreign Affairs

00:11:14 - It's not in the text. And every time the Supreme Court of the United States has said what matters is the longstanding practices of government, it appears to have largely settled the constitutionality of these agreements even though there's no clear text supporting them. So that's a, and that's an example of where it probably makes, it easier for the United States to do very constructive things in foreign affairs. And that if you had to rigidly follow the

00:11:44 - And as I had said earlier, I think not surprisingly, the courts defer to this arrangement that the Congress and the President have largely worked out over time. If there is a loser in the rise of these executive agreements, it's probably the Senate half of the Congress. I agree their interests are affected, no question. the, at one point a minority of the Senate could block most agreements. Now they can't because most agreements don't go

00:12:14 - And there have been complaints sometimes from minority members of the Senate who are in the other party about, the executive bypassing the Senate to some extent. Having said that, I don't even think the minority of the Senate argues that it should have to process all international agreements. There's been a kind of a acquiescence, I think even by the Senate that, at least relatively minor agreements, for example, don't have to go

Shifting Powers: Congress and Trade Agreements

00:12:45 - there's also been an acquiescence that even important agreements in trade, that's a big area of course of making agreements international trade, that it's okay to have a majority of Congress rather than two thirds of Senate. And part of the reason is if you don't go to the majority of Congress, you're leaving out the House of Representatives. They have a big interest in trade and the economy. And in fact, the House of Representatives over time complained they were being left

00:13:17 - And so maybe the part of the Senate has lost some power. But maybe the good news is the house representatives now share some of that authority, particularly over things that affect the economy where they otherwise should have a lot of, say in some of these, trade deals. And again, mostly I would say there's been some acquiescence. Are are there any fights here? Yes. I think the Senate still insists that important human rights agreements, which have a lot

00:13:47 - And mainly they do. So presidents have kind of accepted the senate's wishes on that one. And the other big fight has been over, arms control. So there were efforts in the seventies of presidents to make big arms control deals and not have to go through two thirds of the Senate. 'cause it was too difficult. The Senate did push back on that. And, believe it or not, that was a time in which the Democrats and Republicans in in the Senate were actually cooperating a little bit. So they agreed, they wanted presidents to go

Debating Presidential Power in Foreign Affairs

00:14:18 - It was actually Biden when he was a senator way before he was president with a very conservative Senator, Jesse Helms. They actually agreed to pressure the presidents to come to the senate on the arms deals. And they, ma and presidents mainly have done that. But those are kind of the exception to the rule. Most other agreements, the Senate is not fighting about whether those have to go to the Senate or not. I think accepting that, there has to be more flexibility in foreign

00:14:49 - I think maybe there are two parts of this. And one thing I think it's worth addressing right off the bat is that even though there's been a lot of acceptance, I think of historical gloss adding or, at least clarifying the meaning of the Constitution, there are some objections to it. and I would say the number one objection to it when I talk about the book with other people is they worry that it helps the President more than any other actor, that it helps presidents gain power,

00:15:22 - And there's been talk for decades about how we have an imperial presidency, in particularly in foreign affairs. And presidents are very powerful in foreign affairs today, much more than say George Washington was in the 1790s. now whether that's good or bad, I actually think it should be a reasonably debated proposition. And I ask people who think the president's too powerful. Do you think, Biden should not have the power to help Ukraine, for example, and though, or against Russia? And many of them say, no, no, that's great.

Presidential Power and Historical Context

00:15:53 - and I point out that's a lot of authority. But then they point out examples of other presidents they don't like too much. And it seems to often boil down to whether you like the president or you don't. I remind kind of liberal progressives who are worried about this, that probably the presidency that did more than any other president to add to historical gloss in the foreign affairs area was Franklin Roosevelt in the 1930s and 1940s. If you just look at the history of a lot across a wide range

00:16:27 - he had the fortune to be elected, four times, and that will never happen again because that was an amendment, to the Constitution. You can only serve two terms now. But he pushed a lot of practices in the executive that gave him authority. But a lot of people think he was one of America's greatest presidents. And of course he had to face crises in World War ii. But the point being, it's actually not clear how much power it's desirable to pres for presidents to have in.

00:16:59 - They can act more easily than Congress. They can accrete practice over time. Congress has a hard time pushing back. And so one of the takeaways I I really emphasize in the book is that while that there's, there's some truth to that, it is also the case that in many areas Congress has benefited from historical practice. There were lots of areas where it's not clear Congress could regulate. Give you an example. Can Congress regulate

Congressional Authority and War Powers in Contemporary Practice

00:17:28 - Can it regulate the treatment of prisoners of war and other things that happen in war? It's not clear from the text Congress is given the power to declare war in the text. We don't even declare war anymore. There's been no declaration of war since the 1940s. So does that mean Congress has no power? If we're not declaring war? That doesn't seem very satisfactory. And as a matter of practice, and there were actually cases on this in the war on terrorism where the Supreme Court said, Congress actually does have a lot of power to regulate,

00:17:59 - because they have a long practice of doing that. And Congress has benefited in a bunch of areas from practice, even though the executive is also of course benefited. And the other thing I emphasize in the book is that although Gloss tends to support claims that presidents can act even in areas where the Constitution is not clear, it does not tend to support claims that the President is free from congressional regulation.

00:18:30 - which is I think we do have a tradition constitutional tradition today in which the executive has a lot of power of initiative in foreign affairs. And practice does tend to support that. And if you think about being a superpower in all of the issues the United States has to confront, it might even be desirable for the President who's always on duty, has a, can flexibly respond to crises to have some power of initiative. Historical practice tends not to support the idea

Congressional Authority in Limiting Executive Power

00:19:02 - And that's when Congress really disagrees and wants to enact some kind of a regulatory statute, a limit. I argue in the book that almost all of the time, Congress should win that fight. They should be able to limit the presidency when they want to do that, even in war time, even in other areas. And is this a current issue? Absolutely. I'll give you one example, and I hope it's only hypothetical,

00:19:33 - no president may pull the US out of nato, the Alliance. there have been talk, there's been talk unfortunate from my perspective in recent years about possible presidents doing that. Congress has, has said Presidents may not do that without their permission. And the position that I take in the book is that Congress has the power to regulate that and bind the President. And that's not the view of some lawyers in the executive branch,

00:20:03 - historical practice in their favor. So when push comes to shove, I think Congress can have the last word without that, by the way, I think checks and balances is are gonna break down. If the President can act free of statutory limits, then we really don't have, checks between the two branches of government. The president can just do things and never be, limited by the democratic parts of the, government and the legislative branch. So I really want people to take away that

Balancing Presidential Power and Congressional Oversight

00:20:36 - of initiative to the President, it also empowers Congress to step in and start limiting some of these actions if it does. Now, I wanna be very clear about this, ma. Many times Congress does not wanna limit the President. We need to be realistic about this. They actually, if you think about sanctions on Russia from Ukraine or all sorts of other issues or immigration or other issues, Congress regulates that a lot. But what they do often is then delegate back power

00:21:06 - They want the President to have some flexibility. That's a choice they make. Some people think they've done too much of that. We can have those debates. My point is simply if they can delegate, they can pull back those delegations if they choose, if they're persuaded to do that. And so that's a key point about presidential power that I want people to take away. One other point, that I'll mention, and this is maybe more to people who teach in this area or study this area of law with foreign affairs law

00:21:38 - there is a tendency in the US at least when we talk about constitutional law to mainly be talking about the Supreme Court. There's every year we've talked about the small number of cases the Supreme Court has on its docket and what they're gonna do about the Trump immunity case or some other issue, abortion rights. Most of constitutional law, and this is just, I just have examples in the book of this, and it's a broader phenomenon. Most of constitutional law is not

Beyond the Courts: The Political Foundations of Constitutional Law

00:22:09 - Most of it's not done in the courts. Most of our constitutional law is done in the political process, in the branches of government that have to operate the system that we have. And now foreign affairs is a really nice example of that because the courts have a really low profile there, but it's even more generally true. We focus too much on Supreme Court case law, in my opinion, and how we think about constitutional law and how we teach it when so much of constitutional law is developed through other processes.

00:23:02 - because it is what organizes, power in the country and it, the precedent of the political branches has a huge effect on the law going forward. And that's true even when the courts don't intervene. So one of the themes of the book is to study and think about constitutional law. We really need to look outside of the courts and start looking at other parts of the government.

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