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

By Thomas M. Franck | Go to book overview

CHAPTER TEN
Conclusions: Does the Rule of Law Stop
at the Water's Edge?

JUDICIAL REVIEW, as a countermajoritarian device to protect Americans against the arbitrariness of electorally empowered “factions,” was the great innovation the founders of American federalism grafted onto more traditional notions of republican virtue previously advanced by Plato, Machiavelli, Montesquieu, and Hume. 1 Jefferson had observed that “an electoral despotism was not the government we fought for.” 2 Madison too, in The Federalist No. 10 and elsewhere, warned against reliance on political organs to protect the basic rights and liberties of the citizen. “No man is allowed to be a judge in his own cause,” he wrote, “because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men, are unfit to be both judges and parties, at the same time.” 3 The legislature was that “body of men” that, Madison passionately believed, must never be allowed to usurp the making of “judicial determinations.” 4 It was that body that long before there was reason to contemplate the imperial presidency, embodied the feared supremacy of political power over individual or collective rights of the people. Were Madison and Jefferson alive today, they would undoubtedly express the same concern that the presidency not be the judge of its own cause in a clash between political policy and the rule of law.

Sensitive to this historical perspective, many scholars, but few judges, have openly decried the judiciary's tendency to suspend at the water's edge their jealous defense of the power to say what the law is. Professor Richard Falk, for example, has criticized judges' “ad hoc subordinations to executive policy” 5 and urged that if the object of judicial deference is to ensure a single coherent American foreign policy, then that objective is far more likely to be secured if the policy is made in accordance with rules “that are themselves not subject to political manipulation.” 6 Moreover, as a nation publicly proclaiming its

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