Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs?

By Thomas M. Franck | Go to book overview

CHAPTER FOUR
Prudential Reasons for Judicial Abdication

THE TENDENCY of judges to refuse to adjudicate cases involving foreign-affairs or national-security issues originated in a giveback tactic employed as part of an overall strategy of judicial expansion. Courts deployed an utterly inappropriate notion borrowed from British imperial jurisprudence, which the judiciary reinforced by use of straw dicta and double-entry bookkeeping.

That, however, is not the whole story. Were it so, it would be easy to refute the political-question doctrine and its penumbra insofar as it applies to foreign-affairs cases. It could be dismissed as a historic device of dubious origins, perhaps necessitated at an early stage of judicial ascendance, built on ill-considered dicta and kept alive with mirrors. It could easily be written off as a historic oddity incongruent with modern constitutionalism. However, the doctrine is not so easily disposable. The abdicationist doctrine, the notion that law stops at the water's edge, nowadays finds support in other, weightier prudential considerations. It is to these we now turn.

Although constitutional theory initially gave impetus to judicial abdication in foreign-affairs cases, today judges more frequently abstain because of prudential concerns. In some instances, both prudential and constitutional grounds are cited, but the judicial emphasis is increasingly on the former.

These prudential reasons for abstention fall into four somewhat overlapping categories. First, judges assert that cases involving foreign affairs present issues turning on factual evidence that the courts are unsuited to obtain or assess. Second, judges point out that foreign-affairs cases often present policy questions to which legal standards are inapplicable or unascertainable. Third, they caution that the cases present questions that must be resolved by foreign-affairs experts rather than judges because the outcome is likely to determine not only the well-being but even the survival of the nation in a dangerous world. Fourth, they evince concern that inconvenient decisions that judges might make on foreign affairs might be ignored by the political branches. In general, prudential considerations are cited

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