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

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 scope of presidential war power and embeds past actions into the separation of powers. 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 “history” in legal authority and the revised historical understanding in scholarly works of history. Whereas lessons of history in other contexts often serve as levers for reexamination of government action, in gloss-of-history analysis the past instead serves to legitimate settled practices. 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 S. Truman’s unilateral actions in the Korean War and subsequent reliance on his 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. This has legitimated unilateralism in less massive wars, and since that time all U.S. uses of military force have been in conflicts smaller than Korea, with the exception of the war in Vietnam. Decades of historical scholarship, however, have shown that Truman misunderstood the nature of the conflict and disregarded Congress’s role, and that his advisors failed to seriously consider Congress’s war authorization power until after force was deployed. Historians have also shown the devastating costs of war for Koreans, whose experience is not centered in the U.S. war powers literature. Historical revision did not prompt legal reconsideration, however. Instead, 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. An approach to gloss informed by historical revision could reassert history’s role as a critical perspective on law.