Courts and Foreign Affairs: 'Their Historic Role'

Abstract

This essay reviews Professor Martin Flaherty’s outstanding and engaging recent book Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs. As the book’s title indicates, Professor Flaherty takes a predominantly originalist/traditionalist approach, arguing that the U.S. Constitution’s text and the Framers’ understanding of it contemplate an active checking and protective role for the courts—particularly in foreign affairs, because foreign affairs offers the greatest risk of abuse by the political branches. Moreover, the book argues, U.S. courts traditionally undertook that role through the late-eighteenth and nineteenth centuries, when courts routinely resolved foreign affairs disputes on the merits, often ruling against the executive branch. Only relatively recently, the account runs, have courts begun to use various gatekeeping doctrines to vindicate growing reluctance to interfere in foreign affairs controversies. The book’s call, then, is for courts to “reclaim their historic role.”

Restoring the Global Judiciary is a particular challenge to those who exalt text, history, and tradition to guide constitutional decision-making. The modern rise of originalism and related approaches has occurred alongside decisions signaling concern over judicial involvement in foreign affairs, and calls for reduced judicial involvement in foreign affairs are often linked with praise for originalist-oriented adjudication. Yet, if Professor Flaherty is right, originalism’s rise should enhance, not reduce, courts’ willingness to constrain the foreign affairs executive.

This Review argues that Professor Flaherty is partly right. In particular, he is right about his three central historical points: that the Constitution’s text and the Framers’ design placed the judiciary in a checking role expressly to protect the separation of powers and individual rights; that this general design extended to foreign affairs; and that courts did commonly decide foreign affairs-related cases in the post-ratification era. Restoring the Global Judiciary gives an insightful, balanced and persuasive account of this history. Yet this Review also argues that Restoring the Global Judiciary deemphasizes substantial historical checks on the judiciary’s role. The Constitution did not create the judiciary as a supervisory force above the other players in the constitutional system. Rather, the courts are actors within the system restrained by its explicit limits, by their assumed institutional role, and by judicial prudence about the role courts can constructively fill. Failing to embrace these limits leaves Restoring the Global Judiciary with a grander vision of the courts than text and history actually support.

Keywords: constitution, separation of powers, executive power, foreign affairs, courts, judicial power, political question

JEL Classification: K33