Alexander Hamilton stated “a correct and well informed mind will discern at once that [the power to decide foreign policy] can belong neit[her] to the Legislative nor Judicial Department and of course must belong to the Executive.” The Executive Branch under the President has always been a major player in determining the route of America’s foreign policy; the key departments include the State Department, the Department of Energy, the Department of Homeland Security and the Intelligence Community. It initiates treaties with other nations, determines foreign goals and even establishes America’s stance towards a particular nation.
In response to Alexander Hamilton’s comment, Thomas Jefferson said, “To say then that the power of making treaties which are confessedly laws, belong naturally to the department which is to execute laws, is to say, that the executive department naturally includes a legislative power. In theory, this is absurdity—in practice a tyranny." This expresses the other point of view in which Congress is the key player. Congress today possesses the power of the purse and the ability to declare war and pass legislation.
Finally, the judicial branch, has the right to restrict both Congress and the Executive. For example, Youngstown Sheet and Tube Co. v. Sawyer [1952] established that the President did not have any power to make the nation’s laws. But is that enough? The Judiciary should start taking a more heavy hand in foreign policy - right now, our foreign policy is dominated by the executive and legislative branches. The Judicial branch should not only be able to check the sphere of foreign policy, but also be allowed to assume an active role in all foreign policy. As I've said, I'm not a technocrat-policy obsessed expert, so I'm not sure how this can be accomplished practically. But I'm sure that it can be done in a fair manner so that our system will be more equal.
Please look back to the post titled "A Radical Proposal" to find out what more we can do to strengthen the judicial branch and free it from the restrictive control of the executive. Free the Judiciary!
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And stay tuned for the next installment of a "Radical Proposal," to free the Judiciary.
Alexander Hamilton continues to roll over in his grave.
Why would the judiciary have any sway over foreign policy? The point of the judicial branch is to determine the legality of laws enacted by Congress and the Executive. Domestic laws are not imposed on foreign countries and our judicial branch has no sway over international or foreign laws. Therefore, it has no place in foreign policy.
Katie, you're right about the Judiciary's current role.
But, that's my point...right now the the branch has no place in foreign policy. I'm advocating an expansion of its powers. Instead of only determining the legality of laws enacted by Congress and the Executive, it should be part of the process from the beginning. As the highest legal entity, and as a body devoted to the complexities of law, the Judicial branch is more than qualified to this task.
The fact that domestic laws are not imposed on foreign countries, and that our judicial branch doesn't have any sway over international and foreign policy doesn't lend to the conclusion that the Judiciary doesn't have a place in foreign policy. Following your logic, the executive and legislative branches should not enact foreign policy either as laws, unless signed in agreement with the other country(ies), are not binding.
The Judiciary doesn't have any sway over foreign policy, but it is not the enforcer anyway. That is the executive's job - I am only asking that our foremost legal body be involved in writing the laws. That makes sense to me.
I have a radical proposal: how about we get rid of the Supreme Court? Seriously. 9 people get to decide if a law is kosher or not? That's not democratic. Plus, they make mistakes ALL the time, so it's not like the Court compensates for Congress' incompetence. The only good thing about the Court is that it spurs national debate about our system of government and about the cases it hears. However, these two things can be accomplished in another, more democratic manner.
I've re-examined your previous proposal, and it sounds to me like you want our Judicial branch to become another legislative arm of our government. If your proposal were enacted today, the judges who are currently on the bench would contribute immensely to our law making process. However, once the process of electing judges is implemented, I fear that judges would selectively apply what they know just to get reelected. Our framers understood this and created a system where judges are appointed and confirmed for life.
As to your second point about the branch's power in foreign policy, Article III section II of the constitution states, "The judicial Power shall extend to all...Treaties made." They have the ability to determine the constitutionallity of a treaty.
Let's just burn it all down brah
Stephen, when, what, who, why, how?! Get rid of the Supreme Court? Yes, you're right - it's undemocratic, but there's no reason to get rid of a very, very important voice in government and history. The Judiciary is an important check on the other two branches of federal government. My previous radical proposal would allow the court to exist in a very democratic way, through elections, and one term limits. What do you mean by "mistakes," and in whose opinion are their decisions mistakes? The court not only spurs national debate, but also provides legitimate restrictions and/or powers that are followed. Finally, the Supreme Court is not there to compensate for Congress' incompetence, but is there as a check on its power.
London, I don't agree with your interpretation of my proposals. The Judiciary would hardly propose bills and pass policy. It would only be thoroughly involved during the process. Further, my initial proposal was only to make the appointment process more democratic. I addressed the issue of elections and their influence on the justice's work in the comments section by proposing a one term restriction and a limit on term length. The problem that the founders faced could also be solved this way, and make it more democratic and representative of the ideological diversity of our country.
As for Article III Section II of the Constitution, which grants the Supreme Court the power to determine the constitutionality of a treaty, why can't the Court be involved in writing policy as well? The language of the Constitution already allows for this!
Charlie, power to you dude.
Dear Ms. Nafday:
Thank you for your great confidence in the judiciary.
Sincerely
The Honorable Roger Taney
If the court were involved in writing legislation, they'd be writing an opinion on a law before it were passed. In doing so, you prevent the judicial branch from hearing both sides of an arguement as to why a specific piece of legislation may or may not be constitutional. So there are possible sixth amendment issues. However, to actually achieve what you propose, the constitution would need to be amended anyways.
One more thing. By bringing in judges to write the laws, you are essentially amending original jurisdiction, which was ruled unconstitutional in 1803 Marbury v. Madison.
Also, as to your first proposal, making the court a democratically elected body would completely negate its purpose and credibility. I don't necessarily agree that the court should have lifetime appointments, but if judges were elected the judicial branch would become politically influenced and, like Congress and the President, would be driven by the election cycle.
Chief Justice Roberts clearly stated that he was against politics entering the court in any way, because asserting their political opinions about issues before hearing cases would undermine the judges legitimacy for upholding the Constitution.
Sanjana, your posts produce the most comment. Provocateur?
Honorable Roger Taney,
I hope you roll over in your grave.
Sincerely,
Me
London, I forgot to clarify that I meant that the Judiciary should be involved in the process of creating foreign policy. For other legislation, I understand that there will be a conflict of interest. Of course, you will say that there will still be a conflict of interest because the courts will still need to determine the Constitutionality of these laws – but these people will undergo a rigorous election, and give their word to the public to uphold the Constitution, and will probably incorporate their knowledge of what is Constitutional while drafting the bill.
I will have to think about how to avoid an issue with original jurisdiction. Good one.
Katie, as I’ve said before, short terms and term limits would eliminate the chance that the judicial branch would be driven by the election cycle. The court is already politicized, and we have no say over it right now. At least our voice would resonate more in the Court’s decisions were the Justices hand picked by us.
Chief Justice Roberts did say that he was against politics entering the court in any way, but the sad fact is that it happens. Why else do you think we already know how Justice Thomas or Justice Kennedy will vote? They were nominated by the President (Except, according to Mr. Elias, sometimes the nominations aren’t very deliberated), and generally represent the ideas of the President’s party. What Justice Roberts said is idealistic, but it is not the reality.
Professor Eismeier, not as much as Blago. Or Class & Charter Day G-Road festivities.
Personally, I see the Court as a shortcut for people looking for fundamental change. For instance, gay marriage. At some point, the issue will come before the Court, which might rule that gays are entitled to marry just like everyone else. But, shouldn't the people who want change have to convince the majority of their fellow Americans that the change is worthwhile? Isn't that democracy? Instead, they bring cases to the Court, which acts as a backdoor for change minority groups want. This may seem OK on the issue of gay marriage because you are in favor of it. But imagine if the issue were overturning Roe V. Wade. Wouldn't you want that issue to be brought to the American people and voted upon rather than given to 9 justices to decide?
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