“Judicial Role” and Judicial Duty in Foreign Affairs
That the Constitution contemplates some meaningful role for federal courts in foreign affairs is clear from the text of Article III, which confers jurisdiction over not only cases arising under the Constitution and federal statutes, but also “Cases . . . arising under . . . Treaties made” under the authority of the United States, “Cases affecting Ambassadors, other public Ministers and Consuls,” “Cases of admiralty and maritime Jurisdiction,” and party-based jurisdiction over controversies involving, among others, “foreign States, Citizens, or Subjects.” But the constitutional text stops well short of fully specifying the precise role that federal courts should play in the conduct of the nation’s foreign affairs or the precise relationship between the judiciary’s powers and those of the Legislative and Executive Departments. In this respect, the textual specification of the judiciary’s powers over foreign affairs, like those describing the powers of the President and Congress, conform to Professor Edward Corwin’s famous description of the Constitution as “an invitation to struggle for the privilege of directing American foreign policy.” 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, considers three possible instances of legal change that might plausibly have influenced the judiciary’s “role” in foreign affairs, and flags three important caveats that limit and qualify the scope and strength of the claims being made.
Recommended Citation:Ryan C. Williams, “Judicial Role” and Judicial Duty in Foreign Affairs, 43 Fordham Int'l L.J. 1235 (2020).