LHB Founder Mary L. Dudziak, Emory University School of Law, has posted The Gloss of War, which is forthcoming in the Michigan Law Review:
In war powers analysis, reliance on the interpretive method of historical practice, also called the “gloss of history,” has made history a technology of the forever war. This approach draws upon the history of U.S. military conflict to interpret the separation of powers, and embeds past actions into the law of presidential power. There is a crucial flaw in this methodology, however. The understanding of history in historical gloss is not informed by the changing historiography of war. This has led to a divergence between the thin “history” in legal authority and the deeper historical understanding in scholarly works of history. The consequence is that presidential overreach is not recognized and corrected, but instead built into the doctrine of expanding unilateral power.
Korean War Veterans Memorial (Highsmith)
This Article is the first to examine how static ideas about history in legal analysis have aggrandized presidential war power. It analyzes the most important example of this: President Harry Truman’s unilateral actions in the Korean War and subsequent reliance on Truman’s example in Executive Branch legal opinions. The war is a principal precedent supporting the idea that presidents may use substantial military force without congressional authorization. Decades of historical scholarship, however, have shown that Truman disregarded Congress’s role, and misunderstood the nature of the conflict. Nevertheless, the Korean War is calcified as a significant precedent supporting executive unilateralism, undermining democratic limits, and enabling ongoing war. The Article argues that gloss of history analysis must be dynamic, attentive to the way understandings of the past change over time.
--Dan Ernst
