Contributions by ‘Martin S. Flaherty’

Bradley’s important new book, Historical Gloss and Foreign Affairs, reflects the continuity and contrast. Something of a concise magnum opus, the study tackles head-on the oft-noted central challenge of foreign relations law—how is it that numerous, epic powers, from regulating immigration to terminating treaties to recognizing foreign governments, “have always been exercised by . . . the federal government, but where does the Constitution say that it shall be so?” The book’s title gives the answer: “gloss,” at least as a descriptive matter. Sampling the term from Justice Frankfurter, Bradley—and the Justice for that matter—really mean the custom or tradition of how the branches have worked out doctrines that the text leaves underdetermined.