Document Type

Article

Publication Date

1-1-2020

Abstract

There is a great deal to admire in Professor Flaherty’s carefully researched volume, including the impressive historical contextualization of a broad swath of doctrines touching on foreign affairs. As Professor Flaherty shows, courts in the early republic played a far more prominent and assertive role in foreign affairs controversies than does the modern judiciary actively enforcing international law and treaty commitments and enforcing meaningful limits distinguishing Congress’s foreign affairs powers from those of the President. If judged simply by reference to the practical significance of the judiciary’s role in foreign affairs throughout the eighteenth, nineteenth, and early twentieth centuries, there seems little basis for doubting that modern cases suggest a substantially diminished role for the judiciary in this particular category of legal questions.

But this focus on practical significance is not the only perspective from which the judiciary’s proper “role” in the conduct of US foreign affairs might plausibly be assessed. Part I of this Essay sketches an alternative way of thinking about judicial “role” that connects the interpretive power and authority of the Article III federal courts to those courts’ more fundamental duty to accurately apply the underlying substantive law to the particular cases and controversies that are brought within their jurisdiction. When assessed from this perspective, straightforward comparisons of judicial “role” at different points in US history of the type that feature prominently in Professor Flaherty’s book become somewhat more complicated. Because the content of the underlying substantive rules of law may have changed over time, it is possible that the judiciary’s proper functional “role” in foreign affairs controversies might be significantly less prominent today than it had been in the past even if the courts themselves faithfully adhere to a consistent understanding of their constitutional role and duty.

Part II of the Essay briefly considers three possible instances of legal change that might plausibly have influenced the judiciary’s “role” in foreign affairs matters in the manner Part I suggests. In particular, Part II focuses upon: (1.) the practical demise of prize jurisdiction as a meaningful subject of international law in the late nineteenth and early twentieth centuries, (2.) the United States’ enhanced engagement with multilateral human rights treaties and the corresponding increase in treaty reservations during the midtwentieth century, and (3.) the shift in the conceptual underpinnings of the statutory presumption against extraterritoriality that occurred between the middle and later decades of the twentieth century.

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