35 Pages Posted: 30 Sep 2007
Addressing the specific context of state and local anti-apartheid measures (as a means to influence the national government in its policies towards South Africa and also as formalized expressions of a community¹s outrage), this article argues in favor of the validity of state and local government legislation that seeks to influence foreign policymaking at the national level to the contrary of the suggestion that the national government's paramount right to conduct foreign policy forecloses all such subnational action. The article first deconstructs Zschernig v. Miller, a decision invalidating a state alien inheritance statute based predominantly on cold war era overreaction, and a diluted application of the "direct impact" requirement of Clark v. Allen. It then focuses on The Baltimore Trustees case, wherein the Baltimore Circuit Court upheld an anti-apartheid divestment ordinance, and effectively limited the scope of Zschernig. And, finally, the article shifts to a first amendment analysis, contending that such subnational advocacy to more accessible local government institutions falls within the scope of the right to petition government, expedient for direct citizen participation in the eventual shaping of national government policy and the societal benefit derived from wide dissemination of speech. When weighed against foreign policy interests, this article asserts, the first amendment protections are often deserving of equal or greater weight dependent on the conduct involved.
Keywords: anti-apartheid, subnational advocacy, right to petition
Suggested Citation: Suggested Citation
McArdle, Andrea L., In Defense of State and Local Government Anti-Apartheid Measures: Infusing Democratic Values into Foreign Policy. Temple Law Review, Vol. 62, No. 813, 1989. Available at SSRN: https://ssrn.com/abstract=1016585