Imbalance of Powers: Constitutional Interpretation and the Making of American Foreign Policy

By Gordon Silverstein | Go to book overview

1
The Traditional Interpretation in Court

It is, emphatically, the province and duty of the judicial department, to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.

-- Chief JusticeJohn Marshall

The Constitution establishes the parameters of power within which the federal government functions. It defines the institutions of government and the process by which government is to function. But the Constitution is not a strict blueprint. It is a broad document that has evolved with time. Its evolution has been driven by all three branches of the federal government, but the system has come to rely on the judiciary, and the Supreme Court in particular, for the final resolution of questions of constitutional interpretation. The Court works with laws passed by Congress, actions taken by the president, and with constitutional interpretations made by people in both elected branches, all of which provide a powerful set of constraints on the constitutional interpretation that emerges from the Court. Nevertheless, the Court has an often decisive word on constitutional interpretation, and legislators and presidents are aware of that reality--their actions are shaped with the Court in mind, and often are justified and defended by reference to judicial precedent.

To understand the impact of constitutional interpretation in foreign policy requires a clear understanding of the role played by the judiciary. The Courts are responsible for the constitutional context within which the other branches operate, and the Supreme Court will judge the interpretation offered by the other branches, either giving it the sanction of constitutional legitimacy and establishing that law or action as a precedent for future officials, or striking it down and sending it back to the political system for

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