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

By Thomas M. Franck | Go to book overview

CHAPTER SIX
Mandated Adjudication: Act of State
and Sovereign Immunity

JUDGES, when they refuse to take jurisdiction over foreign-affairs cases, purport to be deferring to the political branches' superior wisdom in such matters and to the need for secrecy, speed, unison, and flexibility in defense of the national interest. In most of the cases we have examined, this judicial reticence sails under the flag of the political-question doctrine. When they apply that doctrine, the courts purport to be following the intent of the Constitution. In particular, the more deferential judges perceive their reticence as strengthening the capacity of the political branches to carry out assigned responsibilities in dealing with foreign states and governments.

This makes it significant that Congress and the president in recent years have taken the initiative in actually requiring courts to decide two categories of disputes in which judges have habitually acted with deliberate reticence. Applying two abdicationist legal theories—the act of state doctrine and the doctrine of sovereign immunity—judges had refused to decide large categories of foreign-affairs claims precisely because they believed the politicians and diplomats better positioned to resolve disputes testing the legitimacy of foreign governments' laws and activities. While the courts claimed to be deferring to foreign laws and governments, in practice they were deferring to the U.S. political branches, which were thought better suited to dealing with the effects of laws and actions of foreign states.

Notably, Congress and the president, regarding both juridical doctrines, have enacted laws in recent years mandating that courts decide rather than abdicate. This refusal by the political branches to tolerate judicial deference is highly suggestive. Evidently, the president and Congress do not take for granted that judicial reticence in foreign-affairs and national-security matters invariably advances the national interest. More important, the recent history of legislation to compel the courts to decide some foreign-affairs cases and the courts' agreement to do so, albeit sometimes given grudgingly, strongly suggest

-97-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this book

This book has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this book

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited page

Bookmark this page
Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs?
Table of contents

Table of contents

Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen
/ 198

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.