Political Question Doctrine

Author:Philippa Strum

Page 1949

As early as MARBURY V. MADISON (1803) the Supreme Court recognized that decisions on some governmental questions lie entirely within the discretion of the "political" branches of the national government?the President and Congress?and thus outside the proper scope of JUDICIAL REVIEW. Today such questions are called "political questions."

Among the clauses of the federal Constitution held to involve political questions, the one most frequently cited has been Article IV, section 4, under which the federal government "shall guarantee to every State in this Union a REPUBLICAN FORM OF GOVERNMENT." Federal courts, and particularly the Supreme Court, have argued that as the definition of "republican" is at the heart of the American political system, only the "political branches," which are accountable to the sovereign people, can make that definition. The electorate can ratify or reject the definition by reelecting or defeating their representatives at the next election. The choice of definition, Justice FELIX FRANKFURTER said, dissenting in BAKER V. CARR (1962), entails choosing "among competing theories of political philosophy," which is not a proper judicial function.

Thus the Supreme Court has refused to review political decisions in cases involving two governments, each claiming to be the legitimate one of a state (LUTHER V. BORDEN, 1849); the question whether the post-CIVIL WAR RECONSTRUCTION

Page 1950

governments in southern states were republican (Georgia v. Stanton and MISSISSIPPI V. JOHNSON, 1867); the "republican" nature of the INITIATIVE and REFERENDUM (Pacific Telephone & Telegraph Co. v. Oregon, 1912; Hawke v. Smith, 1920); lack of REAPPORTIONMENT by state legislatures (COLEGROVE V. GREEN, 1946); contested elections (Taylor & Marshall v. Beckham, 1900); certain presidential actions (Mississippi v. Johnson, 1867); certain cases arising in Indian territory (CHEROKEE INDIAN CASES, 1831?1832); and FOREIGN AFFAIRS (Foster v. Neilson, 1829; Charlton v. Kelly, 1913).

The Supreme Court has never successfully differentiated those questions proper for judicial interpretation from those that are reserved to the "political" branches. A plurality of the Justices having held in Colegrove v. Green (1946) that a state legislature's failure to reapportion itself after the decennial federal census was a political question, for example, the Court in Baker v. Carr decided that such inaction raised a question under the equal protection clause of the FOURTEENTH AMENDMENT rather than the guarantee clause, and therefore raised an issue proper for judicial decision. After having handed down a line of cases holding that contested elections were...

To continue reading