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