Foreign Affairs Crises and the Constitution's Case or Controversy Limitation: Notes from the Founding Era

Abstract

In theory the federal courts might play a significant role in formulating foreign policy and in resolving disputes related to foreign policy, but from the earliest days of the Republic, they seldom have. Instead federal judges have always played a comparatively minor role in the arena of foreign policy. This essay examines two high-profile foreign policy cases that the Federal District Court in Philadelphia adjudicated some two hundred years ago. The resolution of these two cases teaches enduring lessons about the federal courts' structural ability to render timely and useful legal advice related to controversial foreign affairs issues.