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

By Thomas M. Franck | Go to book overview

CHAPTER TWO
How Abdication Crept into the
Judicial Repertory

THE FAUSTIAN PACT

THERE ARE hundreds of cases today in which federal courts face “political questions.” Stalwart federal judges think nothing of deciding such hot-potato issues as the constitutionality of the lines on maps demarking congressional 1 or school districts, 2 the hiring practices of fire departments, 3 or standards for admission to medical schools. 4 Yet these same jurists tend to turn coy when challenged to decide whether a military conflict, such as the one in Vietnam, ultimately involving the expenditure of tens of thousands of lives and hundreds of billions of dollars, is lawful when waged by the president on his sole authority without a formal congressional declaration of war strictu sensu in accordance with article 1, section 8(11) of the Constitution. 5 With a few exceptions, 6 the courts have simply refused to answer that question, with grave results for the public's perception of the war's—and perhaps the courts'—legitimacy. Lower-court judges dodged the issue as too “political,” 7 and the Supreme Court succeeded in avoiding it largely by hiding behind refusals to grant certiorari. 8

This is distinctly dispiriting. Ever since Marbury, when the judiciary gave itself the general intendance of the rules of the game—in Chief Justice Marshall's words, the duty definitively to “say what the law is” 9—the United States has found itself with the world's most powerful judiciary. Matters that in other democracies such as Britain or France would clearly be far beyond the reach of judicial scrutiny are regulated by U.S. judges without any sense of overreaching. Such intensely controversial political initiatives as school desegregation, 10 regulation of pornography 11, abortion, 12 punishment of private homosexual acts, 13 and the death penalty 14 have been faced by the federal judiciary, interpreting the Constitution with an alacrity unknown in the courtrooms of other nations. The American system of governance

-10-

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