Treaty Termination and Historical Gloss

56 Pages Posted: 11 Aug 2013 Last revised: 21 Dec 2014

Date Written: September 26, 2013

Abstract

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President — and the lawyers who advise them — have generally treated this issue as a matter of constitutional law, rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings, but also how these understandings can change. Whereas it was generally understood throughout the nineteenth century that the termination of treaties required congressional involvement, the consensus on this issue disappeared in the early parts of the twentieth century, and today it is widely (although not uniformly) accepted that presidents have a unilateral power of treaty termination. This shift in constitutional understandings did not occur overnight or in response to one particular episode but rather was the product of a long accretion of Executive Branch claims and practice in the face of congressional inaction. An examination of the way in which historical practice has shaped the constitutional debates and understandings concerning this issue can help shed light on some of the interpretive and normative challenges associated with a practice-based approach to the separation of powers.

Keywords: treaties, historical gloss, separation of powers, constitutional change, presidential power, constitutional construction

Suggested Citation

Bradley, Curtis, Treaty Termination and Historical Gloss (September 26, 2013). Texas Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2308004 or http://dx.doi.org/10.2139/ssrn.2308004

Curtis Bradley (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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