The Gloss of War: Revisiting the Korean War's Legacy

56 Pages Posted: 8 Mar 2022 Last revised: 13 Feb 2024

Date Written: February 15, 2022

Abstract

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.

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 that engage in historical practice analysis of presidential war power. 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.

Keywords: war powers, presidential power, gloss of history, historical practice, constitutional law, legal history, military history, Korean War

JEL Classification: N42, N45, F51, F52, H56, K00, K30, K39

Suggested Citation

Dudziak, Mary L., The Gloss of War: Revisiting the Korean War's Legacy (February 15, 2022). Michigan Law Review, Forthcoming, Emory Legal Studies Research Paper , Available at SSRN: https://ssrn.com/abstract=4049263 or http://dx.doi.org/10.2139/ssrn.4049263

Mary L. Dudziak (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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