Episode 29 of Borderlines features distinguished scholar Professor Curt Bradley (Chicago) discussing his new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Berkeley Law professor and Borderlines guest host Elena Chachko brings her foreign relations and administrative law background to guide this fascinating interview.

In the more than two centuries since the U.S. Constitution was adopted, the constitutional law that governs how the United States interacts with the rest of the world has evolved significantly. This evolution did not come about through formal amendments to the text of the Constitution or even through U.S. Supreme Court rulings. Instead, it came about primarily through the actions and interactions of Congress and the executive branch, as they responded to the changing nature of both the United States and the world environment.

Listeners will learn how and why the law governing the separation of powers, covering topics such as the making of “executive agreements,” the termination of treaties, and the waging of war, has been developed over time through historic governmental practices, rather than through judicial decisions or constitutional redrafting.

In his 1952 concurrence in the Youngstown steel seizure case, Justice Felix Frankfurter invoked the term “the gloss of history” to describe this phenomenon. Professor Bradley’s pioneering research illuminates the role of historical practice, or gloss, to justify both expansions of, and limitations on, presidential and legislative power relating to foreign affairs. The conversation brings fresh insights about the role of courts, the U.S. legal system’s relationship with international law, and “undeclared” U.S. military conflicts such as the Korean War and the “war on terrorism.”

Curtis A. Bradley is the Allen M. Singer Distinguished Service Professor of Law at the University of Chicago School of Law. Professor Bradley’s research and teaching interests include foreign relations law, international law, and federal court jurisdiction. He has written numerous articles relating to these subjects and is the author or editor of a number of books, including International Law in the US Legal System (3d ed. 2020), and The Oxford Handbook of Comparative Foreign Relations Law (2019). He is also the co-author of two casebooks: Foreign Relations Law: Cases and Materials (8th ed. 2024), and Federal Courts and the Law of Federal-State Relations (10th ed. 2022). Professor Bradley graduated magna cum laude from Harvard Law School in 1988, after which he clerked for Judge Ebel on the US Court of Appeals for the Tenth Circuit and Justice White on the US Supreme Court. In 2004, he served as counselor on international law in the Legal Adviser’s Office of the US State Department. From 2012-2018, he served as a Reporter on the Restatement (Fourth) of the Foreign Relations Law of the United States, and in 2023 he began serving as a Reporter on the latest phase of this Restatement. From 2018-22, he was a co-Editor-in-Chief of the American Journal of International Law.