Join Professor Curtis Bradley and the Constitutional Law Institute in this launch of his latest work, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. Professors Will Baude and David Strauss will also provide comments.

This event is open to the public. Lunch will be served.

Glossing the Foreign Affairs Constitution

In the more than 230 years since the Constitution took effect, the constitutional law governing the conduct of foreign affairs has evolved significantly. But that evolution did not come through formal amendments or Supreme Court rulings. Rather, as Professor Bradley documents in his new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice, the law in this area has been defined by the practices of Congress and the executive branch, also known as “historical gloss.” The role of historical gloss in our constitutional law is not well captured by existing constitutional theories. Originalist theories often ignore influential post-Founding developments, while nonoriginalist theories often focus on judicial decisions rather than the actions and reasoning of Congress and the executive branch. Professor Bradley’s account also complicates 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 not merely stepped aside. Rather, it has also benefited from gloss, claiming powers for itself in the international arena not clearly addressed in the constitutional text and disrupting claims of exclusive presidential authority.