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University Microfilms, Inc., Ann Arbor, Michigan a HISTORY of the ROLE of THE This dissertation has been microfilmed exactly as received 66-15,138 STEBBINS, Phillip Eugene, 1934- A HISTORY OF THE ROLE OF THE UNITED STATES SUPREME COURT IN FOREIGN POLICY. The Ohio State University, Ph.D., 1966 History, modern University Microfilms, Inc., Ann Arbor, Michigan A HISTORY OF THE ROLE OF THE UNITED STATES SUPREME COURT IN FOREIGN POLICY DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Phillip E. Stebbins, B.S., LL.B. ******* The Ohio State University 1966 Approved by RL-g.lhtKr, Adviser Department of History VITA November 16, 1934 Born, Kewanee, Illinois 1954 Bachelor of Science, University of Wisconsin 1959 Bachelor of Laws, The Ohio State University 1959 - 1962 Attorney, Toledo, Ohio 1962 - 1963 Mershon Fellow, The Ohio State University 1963 - 1966 Graduate Assistant, Department of History, The Ohio State University FIELDS OF STUDY Major Field: History United States Constitutional Foster Rhea Dulles American Foreign Policy Fos.er Rhea Dulles English Constitutional and Medieval Franklin J. Pegues England 1485-1714 Clayton Roberts Latin America John J . TePaske ii TABLE OF CONTENTS Page INTRODUCTION...................................... 1 I. NEUTRALITY AND RECOGNITION................... 9 II. TREATIES AND TERRITORIAL QUESTIONS............ 35 III. PROBLEMS OF THE CIVIL W A R ................... 53 IV. SEPARATION OF POWERS......................... 67 V. REVIVAL OF THE RECOGNITION QUESTION IN THE TWENTIETH CENTURY........................... 86 VI. POWERS, INHERENT AND PLENARY.................. 108 VII. WAR, PEACE AND WORLD RESPONSIBILITY.......... 118 VIII. THE BRICKER AMENDMENT AND ITS CHALLENGE TO THE EXECUTIVE............................... 153 IX. CONCLUSIONS................................ 172 TABLE OF SUPREME COURT CAS ES....................... 184 BIBLIOGRAPHY...................................... 190 iii INTRODUCTION The American judiciary ia by nature a passive instrument. It acts only when parties independent of the court invite it to do so. Yet, in observing its role, Alexis de Tocqueville perceived that 11 few laws can escape the searching analysis of judicial power for any length of time, for there are few that are not prejudicial to some private interest or otherThe courts, therefore, play an important role as arbiters resolving conflicts which have assumed the form of a case or controversy. One such arbitral function of the Supreme Court of the United States is the case by case decision of questions arising out of the domestic or international policies established by the policy-making departments of government. Here it is a conventional court of law administering ordinary civil or criminal justice. Article III, Section 2 of the Constitution and the Judiciary Act of 1789 confer this jurisdiction on the Court. In such cases, usually on an appellate level, it passes on the rights and obligations of the parties to the suit. It settles the question of applicability of specific laws to the matter at hand. There are however occasions when the Court ^Alexis de Tocqueville, Democracy in America (New York, 1945), vol. 1, 101-102. 1 2 refuses to play this accepted role: when it shys away from a judicial decision in a case before it and claims the question is non-justiciable. The problem created by this deference, although not unknown in domestic questions, is most familiar in the field of foreign policy. Here judicial self-limitation has created a kind of limbo into which the Court, for many reasons, has refused to trespass. And, although it will hear this kind of case, it will not disturb the policies estab­ lished by the political departments. This judicial deference means no redress can be expected from the Court. The parties to the action are left, in effect, where they were before the suit was ever instituted. Their only recourse is to the political branches of government. The Court calls such matters "political questions", a kind of short hand way of saying that the judicial branch will not second guess the policy 2 makers in certain areas. 2 Black's Law Dictionary (4th ed., St. Paul, 1951), at 1319, defines political questions as: Questions of which the courts of justice will refuse to take cog­ nizance, or to decide on account of their purely political charac­ ter, or because their determina­ tion would involve an encroachment upon the executive or legislative powers. Edward S. Corwin in The Constitution of the United States of America (Washington, 1954), at 547 states that: . .a political question may be defined as a question relating to the possession of political power, of sovereignty, of government, the determination of which is vested in Congress and the President whose decisions are conclusive upon the courts. 3 Critics decry this judicial abstention in questions involving 3 international affairs. They argue that it is defaulting in the role which constitutionally it was intended to fill. Other observers, how­ ever, point to the dangers which await the Court should it venture into 4 the "political thicket." They note that it cannot lead unless someone will follow. The justices are nine men whose opinions depend upon concurrence of the executive if they are to be carried into effect. Despite all the respect shown the Court, it would be in^ossible for it long to flaunt the executive, legislative and popular will in any matter about which feelings run high. This is particularly true in foreign affairs for in this area the judiciary has no special talents which make it competent to strike out on some foreign policy adventure which may contradict or confuse the decisions made by the executive or ^For example, see Edward S. Corwin, "Judicial Review in Action," Univ. of Pennsylvania Law Review, LXX1V (1938), 639; John p. Frank, "Political Questions," in Edmond Cahn, ed., Supreme Court and Supreme Law (Bloomington, 1954) ; Woodford Howard, "Constitutional Limitation and American Foreign Policy," in Gottfried Dietze, ed., Essays on the American Constitution (Englewood Cliffs, 1964) ; Louis L. Jaffe, Judicial Aspects of Foreign Relations in Particular of Recognition of Foreign Powers (Cambridge, 1933); C. Herman Pritchett, "Equal Pro­ tection and the Urban Majority," American Political Science Review, LVIII (1964), 869. 4 See for example, David Maurice Levitan, "Recent Developments in the Control of Foreign Relations under the Constitution of the United States" (unpublished Ph.D. dissertation, University of Chicago, 1940); Charles Warren, "Political practice and the Constitution," Univ. of Pennsylvania Law Review, LXXXIX (1941), 1003; Melville Fuller Weston, "Political Questions," Harvard Law Review, XXXVIII (1925), 296. 4 legislature. This dispute over the proper role of the judiciary in political questions has no clear cut solution. The Court, reflecting an awareness of this, has expanded or contracted the category of poli­ tical questions in an accordion like manner depending upon the exigencies of the case before It. It is true, however, that in foreign affairs the Court has usually stretched the accordion to its widest. Included in a list of political questions, for example, are the matter of sovereignty of either the United States or a foreign state, the related question of boundaries and territorial authority, the determination of American neutrality, the existence of peace or war, the length of a military occupation, the recognition of the inde­ pendence or belligerency of a foreign state or government, the acknowledgment of diplomatic immunity, and the status of Indians and aliens--enemy or otherwise. Finally, the validity or breach of a 5 treaty is generally a political question. Although here the courts The following represents a limited list of cases defining various categories of questions as ‘•political**. For example in the case of sovereignty and boundaries, see De La Croix v. Chamberlain, 12 Wheat. 599 (1827); Foster v. Neilson, 2 Pet. 253 (1829); U.S. v. Arredondo, 6 Pet. 691 (1832); Garcia v. Lee, 12 Pet. 511 (1838) ; Williams v. Suffolk Ins. Co., 13 Pet. 415 (1839); Qetjen v. Central Leather Co.. 246 U.S. 297 (19 1 8). For neutrality or war or occupation see, The Nuestra Senora de la Caridad, 4 Wheat. 497 (1819) ; Prize Cases, 2 Black 635 (1863); Neely v. Henkel, 180 U.S. 109 (1901) ; Hirabayashi v. U.S.. 320 U.S. 81 (1943) ; In re Yamashita, 327 U.S. 1 (1946) ; Ludecke v. Watkins, 335 U.S. 160 (1948); Harisiades v. Shaughnessy, 342 U.S. 580 (1952). For recognition see, Rose v. Himely, 4 Cranch 241 (1808) ; Gelston v. Hoyt, 3 Wheat. 246 (1818) ; U.S. v. Palmer, 3 Wheat. 610 (1818); The Divina Pastora, 4 Wheat. 52 (1819); Williams v. Suffolk Insurance Co., 13 Pet. 415 (1839) ; Rennett v. Chambers, 14 How. 38 (1852); Ricaud v. American Metal Co., 246 U.S. 304 (1918) ; Guaranty Trust Co. v . U.S ., 304 U.S. 126 (1938) ; U.S. v. Pink, 315 U.S. 203 (1942) . 5 retain a particular authority to interpret the terms of a treaty so long as the policy makers regard it as still in effect. This doctrine of political questions cannot be inferred from the language of the Constitution. In fact Article III, Section 2 seems to confer jurisdiction on the Court to review all cases under the laws and treaties of the United States. Rather it is wholly a product of the judiciary— truly an example of judicial self-restraint which contrasts sharply with contemporary judicial intervention in the reapportionment cases and recent activism in the civil rights area. While judicial deference may have only a negative effect on the general conduct of foreign policy, the Court plays another, more posi­ tive, role in this field. It acts as an uaq>lre between the branches of government and, as such, it defines the boundaries of each branch's power. The Court has encouraged the President in its decisions. It has indicated that the usual checks upon the exercise of his power are For diplomatic immunity see, Ex parte Hitz.
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