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Sidhu on Judicial Review as Soft Power

By Lawrence Solum

Dawinder S. Sidhu (Center for Justice, Law & Society) has posted Judicial Review as Soft Power: How the Courts Can Help Us Win the Post-9/11 Conflict (American University - National Security Law Brief) on SSRN. Here is the abstract:

The American military efforts in Afghanistan and Iraq are not yielding desired results and, even assuming they were, such military success would not be sufficient to prevail in the war against transnational terrorism. The United States must engage in the battle of hearts and minds in order to achieve meaningful safety and a lasting respite from the specter of terrorist activity. To participate in this more intangible, intellectual battle, the United States will need to utilize its "soft power," or its ability to draw nations or peoples towards its policy preferences through attraction, as distinct from "hard power," in which foreign conduct is shaped by military or economic coercion. The question becomes what soft power resources are available to -- and may be credibly invoked by -- the United States?

This Article argues that the American constitutional design, particularly its commitment to the rule of law, is an aspect of soft power that, if communicated externally, will attract moderate Muslims and others to American interests and help quell the reach and appeal of terrorists bent on destroying the United States. Such "legal soft power" will resonate with the international audience only if we adhere to fundamental American principles in actuality -- they must be more than mere platitudes. Accordingly, I suggest that the Supreme Court's robust evaluation of individual rights claims in the post-9/11 context demonstrates that the judiciary has been faithful to the rule of law even in times of national crisis and stress. It is not the outcomes that necessarily shows this, but the genuine process within which federal actions may be challenged.

If it is the case that the rule of law may be an element of soft power conceptually and that the judicial decisionmaking has honored it in practice, then it would benefit American national security interests if others in the world were made aware of the American constitutional scheme, one of separation of powers and judicial review, and the Supreme Court's fidelity to the Constitution in times of war. Such information may make it more likely that other nations and peoples will be attracted to American interests. In an odd sense, the judicial branch may be a positive instrument of foreign policy and a beneficial tool in America's current war -- even if it strikes down executive or legislative actions in the government's prosecution of the war itself.

Full post as published by Legal Theory Blog on December 30, 2009 (boomark / email).