Franck Political Questions Judicial Answers

Does the Rule of Law Apply to Foreign Affairs?
Course Book
ISBN: 978-1-4008-2073-3
Verlag: De Gruyter
Format: EPUB
Kopierschutz: Adobe DRM (»Systemvoraussetzungen)

E-Book, Englisch, 212 Seiten

Almost since the beginning of the republic, America's rigorous separation of powers among Executive, Legislative, and Judicial Branches has been umpired by the federal judiciary. It may seem surprising, then, that many otherwise ordinary cases are not decided in court even when they include allegations that the President, or Congress, has violated a law or the Constitution itself. Most of these orphan cases are shunned by the judiciary simply because they have foreign policy aspects. In refusing to address the issues involved, judges indicate that judicial review, like politics, should stop at the water's edge--and foreign policy managers find it convenient to agree! Thomas Franck, however, maintains that when courts invoke the "political question" doctrine to justify such reticence, they evade a constitutional duty. In his view, whether the government has acted constitutionally in sending men and women to die in foreign battles is just as appropriate an issue for a court to decide as whether property has been taken without due process. In this revisionist work, Franck proposes ways to subject the conduct of foreign policy to the rule of law without compromising either judicial integrity or the national interest. By examining the historical origins of the separation of powers in the American constitutional tradition, with comparative reference to the practices of judiciaries in other federal systems, he broadens and enriches discussions of an important national issue that has particular significance for critical debate about the "imperial presidency."

Autoren/Hrsg.

Franck, Thomas M.

Fachgebiete

• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtsgeschichte, Recht der Antike

Inhaltsverzeichnis

Acknowledgments

Ch. 1 Introduction 3

Ch. 2 How Abdication Crept into the Judicial Repertory 10

The Faustian Pact 10

Double-Entry Bookkeeping 21

Ch. 3 Two Principled Theories of Constitutionalism 31

Ch. 4 Prudential Reasons for Judicial Abdication 45

The Factual Evidence Is Too Difficult 46

No Applicable Legal Standards 48

Too Much at Stake 50

Judges Cannot Compel the Executive 58

Ch. 5 When Judges Refuse to Abdicate 61

Security and Foreign-Policy Interests v. Property Rights 63

Security and Foreign-Policy Interests v. Civil Rights 76

Congressional v. Executive Powers 90

Ch. 6 Mandated Adjudication: Act of State and Sovereign Immunity 97

Act of State 98

Foreign Sovereign Immunity 101

Ch. 7 Abolishing Judicial Abdication: The German Model 107

German Judges on Whether to Decide 107

German Judges on How to Decide 116

Ch. 8 A Rule of Evidence in Place of the Political-Question Doctrine 126

Evidentiary Weight 129

Ch. 9 The Special Cases: In Camera Proceedings and Declaratory Judgments 137

The Need to Preserve Secrecy 138

The Less Confrontational Remedy: Declaratory Judgment 153

Ch. 10 Conclusions: Does the Rule of Law Stop at the Water's Edge? 156

Notes 161

Index 193