Abolishing Judicial Abdication:
The German Model
IF OUR JUDGES were to embark on a new approach to cases dealing with sensitive foreign-relations and national-security issues, they could be guided by the experience of their German brethren. While our legal culture is based on the common-law tradition of Great Britain, the British model is misleading for the reason, examined in chapters 2 and 3, that the object of the colonies' revolutionary enterprise had been to sever their tie to the mother country's system of executive prerogatives and parliamentary supremacy. These notions continue to hold sway at Westminster, making it profoundly different from our traditions of constitutionalism, limited and divided powers, and judicial umpiring. It is in the constitutional development of the German Federal Republic, designed after World War II to emulate our system of checks and balances, that useful analogies may be sought.
The German Constitutional Court, the final interpreter of the Federal Republic's constitution, operates in a system of separated powers, protected rights, and federalism readily comparable to our own. Like our Constitution, the German Basic Law neither requires nor precludes judicial reticence in foreign relations. The judges are thus left free to steer their own course. Unlike American courts, however, they have chosen a path of activism, rejecting invitations to imitate the abdicationist U.S. practice. Moreover, they have developed a coherent theory applicable to the adjudication of foreign-affairs cases that is reasonable, works adequately, and provides a thread of jurisprudence that is pursued with far greater consistency than in the American practice. This judge-made German jurisprudence has staked out a middle course between judicial abdication and rampant judicial interference in the making and execution of foreign and security policy, one that satisfies systemic imperatives of the rule of law and political flexibility. In arriving at their solution, the German