With its multitude of heads, the Hydra of Greek mythology must have faced internal dissension. How did it resolve basic questions such as whom to attack? Or perennial puzzlers such as whether Jerusalem is in Israel? In his "second labor," Hercules used his golden sword to slay the Hydra, so we will never know.
In Alexander Hamilton's Federalist No. 80, however, the monster metaphorically reared its heads. Expounding on the need for a national judiciary, Hamilton emphasized the importance of vesting America's judicial power in a unitary branch rather than relying on the "hydra" of thirteen state courts. One benefit would be the uniform interpretation of constitutional provisions and national laws. Hamilton thought a national system would be particularly "expedient" in cases involving foreign relations, to help the United States "be answerable to foreign powers" and thus avoid war.
The fear of the Hydra was far-sighted; the United States is--not are--the better for having adopted Hamilton's position. Over time, however, in a misbegotten quest for consensus, the judiciary has increasingly allowed the executive branch to silence the voices of the coordinate branches. Having a national government that can supersede state laws has proven prudent, but if that government becomes monolithic, it risks developing the myopic vision of a Cyclops.
The aggrandizement of the executive was on display last month in a Supreme Court decision about a single word. The question was whether a Jerusalem-born U.S. citizen could choose to include "Israel" on the birthplace line in his passport. In light of the controversy surrounding the status of the Holy City, presidential policy has never allowed such editorializing. In 2002, Congress had the temerity to oppose that restriction, enacting a law directing the Secretary of State to allow passport applicants born in Jerusalem to choose whether to add "Israel." President George W. Bush reluctantly signed the law for other reasons but declined to enforce that provision. Striking down the law as unconstitutional, the Supreme Court told Congress to shut up so that our nation could speak with one voice--the president's.
According to the majority, "the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not" because other countries "need to know" where they stand. Thus, the Court held, the power to recognize foreign states must be exclusively executive, and though notations in passports would not constitute official recognition, Congress was out of bounds in permitting them to contradict the executive's position.
The problem was not that the law overstepped congressional authority per se; the Court acknowledged "the power of Congress to enact passport legislation of wide scope." Rather, it was the law's substantive stance that caused the Court to muzzle the legislature. As noted scholar Erwin Chemerinsky observed, the decision marked the first time the Court had ever "declared unconstitutional a federal law limiting presidential power in foreign affairs." Not to worry, the majority insisted. Congress could still use other ways to communicate its disagreement with the president, such as "declar[ing] war." So much for subtlety, not to mention peace.
Amid debates about the free-speech rights of corporations, we should not overlook the value of the nuanced perspectives of our branches of government. Their institutional differences often yield divergent viewpoints. Where presidents tend to be pragmatic, Congress may be dogmatic, and the judiciary phlegmatic.
To be sure, interbranch conflicts may trigger diplomatic complications (as arose earlier this year when forty-seven senators crudely exercised their right to speak for themselves, as opposed to for their chamber, in a letter to Iran). One can imagine the question: "How do you explain, Mr. President, why although you have not recognized Israel's sovereignty in Jerusalem, some of the passports you issue imply that you have?" But the answer is straightforward: "Because our citizens aren't the only ones who are free to share their views. Within its sphere of power, Congress can too." If that reality distresses our allies, the diplomatic cost is a price we should pay to keep any branch's voice from drowning out the others'.
One might argue that foreign policy is one of those areas that inherently demand conformity. We could deliberate forever about, for instance, whether cars should drive on the left or the right, but more important than the process is a decisive outcome, and on such matters we rightly do not tolerate opposition. Agreements to abide by a coin flip, however, are not suitable for foreign policy. Its intricacies demand robust discussion, including room for discord.
Presidents often pretend otherwise, as when President Bush blustered that "either you are with us, or you are with the terrorists." If by "us" he meant the U.S., with its kaleidoscopic diversity, fine. More likely, though, he was using the royal "us" to reduce a continuum to a dichotomy: his way or the highway. In the wake of calamity, such clarity can be comforting. But over time it encourages the vile tactic of questioning the patriotism of those who dare to dissent. Foreign policy requires a continuous national conversation, and that means not stifling expression--by individuals or by branches of government.
That includes the judiciary itself. Chief Justice John Roberts has, in the name of protecting the Supreme Court's legitimacy, adopted the mindset that the Court should avoid stepping on the toes of the other two branches. In that vein, federal courts have granted the executive unwarranted deference in a variety of contexts, particularly concerning foreign affairs, such as in the interpretation of treaties.
In Federalist No. 78, Hamilton acknowledged the natural weakness of the judiciary, an institution with "no influence over either the sword or the purse." Lacking the resources of Hercules, all judges have is "judgment." Let us hope that in future decisions, the Supreme Court does not substitute the executive's judgment for its own--or for the legislature's. We may not get a single answer to questions such as whether Jerusalem is in Israel, but better than artificial consensus is continued dialogue, or trialogue.
Hamilton did write off thirteen heads of the American government. But he, along with his cohorts, created in the Constitution a mini-Hydra of three separated powers. Neither legislative nor judicial chambers should--like the nymph who tempted Zeus and suffered the wrath of Hera--have their voices reduced to an echo.