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

By Thomas M. Franck | Go to book overview

CHAPTER THREE
Two Principled Theories
of Constitutionalism

ABDICATIONISM is generally defended by judges who practice it as a recognition that the courts are but one of three coequal branches of government. Professor Alexander Bickel, describing and lauding the judiciary's “passive virtues,” 1 has identified its two conceptual components: constitutionally mandated limits and self-imposed prudential limits. 2

The constitutionally mandated limit on adjudication is either of very little or very great importance, depending on how it is construed. On the one hand, the limit may mean no more than this: If in the Court's opinion either the presidency or Congress has acted within its constitutionally allotted ambit of political discretion, the Court will not replace the political judgment of a coordinate branch with its own preferences. No judge, and no scholar of note, has ever expressed disagreement with such a self-evident proposition. It surely requires no doctrine of its own. On the other hand, the limit may mean much more: If in the opinion of one of the political branches that branch is authorized by the Constitution to take an action, the Court will not substitute its view of whether such action is constitutionally authorized for that of the political branch. In other words, the courts should not substitute their interpretation of the Constitution's allocation of powers to a political branch for the latter's understanding of that allocation. Each branch should be free to set the limits of its powers by expressing its essentially unreviewable understanding of the Constitution's parameters and acting thereon without fear of judicial contradiction.

This far more expansive formulation of the political-question doctrine and its adoption by some judges has always been exceedingly controversial. The consequence of the lesser version is to subject the actions of the president and Congress to judicial review (albeit not to foreign-policy review). The effect of the greater version is to place acts of the political branches beyond the reach of the courts' umpiring

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