The prospect of implicit recognition of Jerusalem as an integral part of Israel as the result of a favorable United States Supreme Court decision in the Menachem Zivotofsky case, as envisioned in The Jewish Standard’s June 24 editorial, may turn out to be a snare and a delusion. The issue before the court will be essentially one of delineating the boundaries of the long-established principle of separation of powers inherent in our Constitution. It has been well-settled since time immemorial that the conduct of foreign policy is the exclusive domain of the executive branch, and American courts have traditionally shied away from putting a toe in those waters. For its part, Congress has no active role to play in this area, unless a treaty be involved.
While it may be hazardous to one’s health to predict what this most political Supreme Court might do, it is not beyond reason to anticipate that the four hard-core conservatives will find that a decision favorable to the plaintiffs would do violence to the principle of separation, and Justice Kennedy might be expected to view an attempt to conduct foreign policy in the courts in an unfavorable light.
Furthermore, the path to this purported recognition through the back door is still fraught with pitfalls and trapdoors. Students of history will remember President Andrew Jackson’s taunt of Chief Justice John Marshall, whose court had rendered an opinion with which Jackson disagreed: “John Marshall has made his decision. Now let him enforce it.” In light of the fact that no American administration in history has recognized Jerusalem as Israel’s capital, by what method can the Supreme Court require the president – any president – to do so?
In addition, caution should be exercised by those adverting to juridical processes in this realm. They need to take cognizance of the fact that, within the purview of international law, it is the United Nations that has the power and right here. That body, by law, is the successor to the League of Nations and inherited the sway of that body over the territories as to which it established mandates after World War I, most famously, of course, those lands wrested from the Ottoman Empire by the British. It was this jurisdiction that permitted the U.N. General Assembly to create the State of Israel in December 1947. In a common exercise of selective memory, it is often conveniently forgotten by both sides in the dispute that that U.N. resolution provided for the internationalization of Jerusalem.
The fact that both sides also rejected this provision and opted to attempt a resolution on the battlefield is essentially beside the point. Successive military triumphs have not permanently provided peace, and the conflicting claims, like those surrounding the futures of Alsace and Lorraine in another time and place, continue to fester and provide grist for the mills of warhawks on both sides.
Contrary to the thesis of your editorial, the place to watch is not the Supreme Court building in Washington but the United Nations headquarters in New York, where the more compelling aspects of the dispute will be fought out this September, when the Palestinians seek sanction for a state in the General Assembly and where the United States cannot exercise its veto.