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

By Thomas M. Franck | Go to book overview

CHAPTER ONE
Introduction

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience….

The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs…. The acts of such an officer, as an officer, can never be examinable by the courts.

—Chief Justice John Marshall, Marbury v. Madison (1803)

WITH THAT seemingly offhand remark, Chief Justice Marshall introduced into American jurisprudence a theory that continues to affect profoundly the way power is exercised in the United States. Whatever Marshall's intent in these paragraphs, the effect was to initiate a constitutional theory, still asserted by many lawyers and judges, that foreign affairs are different from all other matters of state in some crucial fashion. From this is sometimes derived the conclusion, one with which Marshall might well have disagreed, 1 that the conduct of foreign affairs by the political agencies should be immune to judicial scrutiny. What a paradoxical by-product of the very decision that made judicial review the touchstone of the American system of government! How odd that Marshall should have sounded this uncertain note with the same breath as Marbury's2 clarion call to judicial activism.

In The Federalist No. 78, Alexander Hamilton had foreseen this activist role. He had designated the judiciary as the guarantor of the new Constitution, “the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws.” 3 Moreover, in a system of deliberately divided and limited power the judiciary, the “least dangerous” branch, must be vested with the authority “to declare all acts contrary to the manifest

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