Vol. 3, No. 1 (January, 1993) pp. 1-2

POLITICAL QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF LAW APPLY TO FOREIGN AFFAIRS? by Thomas M. Franck. Princeton: Princeton University Press, 1992. 191 pp. Cloth $24.95.

Reviewed by Mary L. Volcansek, Department of Political Science, Florida International University.

Thomas Franck's elegantly written little treatise POLITICAL QUESTIONS/JUDICIAL ANSWERS provocatively probes the question of American courts' reluctance or, more precisely, refusal to decide constitutional issues that involve foreign affairs. His argument is that "there are no valid reasons -- constitutional, prudential, technical, or policy-driven -- for treating foreign relations cases differently from any others." Professor Franck then proceeds to discredit all of the maxims enshrined in U.S. constitutional jurisprudence that have led judges to accept that constitutional law "stops at the water's edge."

Franck frames his position by focusing first on the roots of the abdicationist position that places foreign policy issues among the judicially taboo subjects subsumed under the political question doctrine. The doctrine had its inception, Franck notes, in John Marshall's reference in MARBURY V. MADISON to the political component of presidential power in foreign affairs that "can never be examinable by the courts." That statement was later reinforced by Marshall in the 1831 decision in CHEROKEE NATION V. GEORGIA. Franck, though, picks up also on Justice Johnson's concurring opinion in that case in which a late eighteenth century British precedent is invoked in support of the proposition that political actions by nation states could not be evaluated in courts. However, the notion that international politics were beyond the reach of judges had its great flowering in Justice Sutherland's dicta in CURTISS-WRIGHT which "invented an exclusive presidential franchise to conduct foreign relations beyond the control of either Congress or the courts." That concept was later virtually chiseled in marble in Justice Brennan's 1962 opinion in BAKER V. CARR that explicated the parameters of the political question doctrine and placed foreign policy squarely among the categories of cases beyond judicial cognizance.

Franck labels this phenomenon as a Faustian pact; it was an easy "giveback" to the political branches from courts who were marking off their own supremacy in the domestic arena. What is most remarkable (and little noted) is that in each of these cases, as Franck is careful to point out, the central issues in no way involved foreign affairs. The abdicationist position of the U.S. Supreme Court began and was nourished in judicial reasoning that was essentially irrelevant to the actual decision in every case.

Having cast suspicion on the very foundations of the abdicationist position, Franck sets about raising serious doubts about the various rationales for judges' refusal to enter the thicket of foreign policy. One by one, he attempts to debunk both the constitutionally and prudentially based explanations for courts' staying out of the business of reviewing the actions of foreign policymakers. Evidentiary difficulties, the absence of judicial standards, the potential for international embarrassment and the inability of courts to compel the executive are, in turn, each rejected as legitimate obstacles to judicial review. Close readings of judicial opinions and application of harsh logic fell the barriers and sustain Franck's assertion that neither constitutional nor prudential reasons are sufficient to justify judicial abdication.

The most fascinating chapters are those about cases that have impinged on foreign affairs and the example of German constitutional jurisprudence where no domestic-international dichotomy is recognized. In the former, Franck cites instances where the Supreme Court, some lower federal courts and even some state tribunals have ventured onto foreign policy turf. The judges in some cases simply ignored foreign policy implications or declared them to be peripheral to the controversy; in others, the political question doctrine was side-stepped; in none, however, did the judges boldly assert an authority to review foreign policy decisions. They did, nonetheless, decide challenges to executive prerogatives in the international sphere.

The German Constitutional Court is presented as a model of a constitutional court's unwillingness to accept that any constitutional issue is beyond the scope of judicial review. But, as Franck also notes, that court has a record of upholding government initiatives in the international arena that is proportionately equivalent to the record of the U.S. Supreme Court. The approaches of the two courts are completely different, but the outcomes are virtually the same. What puzzled me was that after two chapters in which parallels from the German judicial experience are articulated and potential lessons for the U.S. presented, Franck dismisses much of the usefulness of the German example, on the grounds that Germany "has eschewed . . . any assumption of a foreign policy responsibility comparable to that of the United States."

Courts at home, not those abroad, are offered as lending guidance for deciding constitutional questions with foreign policy dimensions. Preservation of secrecy for national security questions, it seems, can be accomplished through IN CAMERA proceedings and through processes analogous to those established by the Freedom of Information Act and Classified Information Procedures Act. The less confrontational approach Franck suggests would be the declaratory judgment procedure.

The question that Franck presents is not a purely academic one, as international elements increasingly penetrate U.S. politics and, therefore, courts. Law enforcement efforts to stem international drug trafficking or to pursue alleged terrorists bring questions of executive policy abroad directly into American courtrooms. The trial of Panamanian General Manuel Noriega is but one prominent example; the abduction without extradition of Mexican national Dr. Humberto Alvarez represents another. Franck has crafted a cogent and well-documented case for re-examination of a long-standing constitutional tradition of judicial abdication. He has, moreover, proposed realistic and reasonable means for judges to balance the competing demands involved in adjudication when national policy in the world arena is at issue. He has, in short, capably addressed the absence of compelling constitutional, prudential, technical or policy-driven reasons for perpetuating a judicially created doctrine of abstention. Am I persuaded that judicial abdication is "egregiously wrong?" Perhaps I am too steeped in the view of constitutional jurisprudence that accepts the logic so forcefully enunciated by Justice Brennan in BAKER V. CARR to be a willing convert. But, at the same time, I know that I will never teach or think about the political question doctrine in the same way I did before reading Franck's book. P>


Copyright 1993