Political Jurisdiction, Form #05.004
(OFFSITE LINK): Memorandum
of law on political jurisdiction
Section 2: Authorities on Political Jurisdiction
Courts may not involve themselves in any strictly
1. Baker v. Carr, 369 U.S. 186 (1962) .
Establishes criteria for determining jurisdiction to decide specific
aspects of political questions.
2. Luther v. Borden, 48 U.S. 1 (1849).
Denied all courts jurisdiction to hear strictly political matters.
3. Fletcher v. Tuttle, 151 Ill. 41, 37 N.E. 683
(1894). Defined “political rights”.
4. O’Brien v. Brown, 409 U.S. 1 (1972) .
Ruled that equity courts must refrain from interfering in the administration
of the internal affairs of a political party. The court will
note that any number of people, including a single person, can defined
a political party.
Courts may not involve themselves in the affairs
of a political party or its members:
1. Lynch v. Torquato, 343 F.2d 370 (3rd
Cir. 1965). Court dismissed petitioner’s challenge to
the method of selecting the Democratic County Committee and Chairman.
2. Farmer-Labor State Central Committee v. Holm,
227 Minn. 52, 33 N.W.2d 831 (1948). Court ruled that “In
factional controversies within a party, where there is not controlling
statute or clear right based on statute law, the courts will not
assume jurisdiction, but will leave the matter for determination
within the party organization.. . Such a convention is a deliberative
body, and unless it acts arbitrarily, oppressively, or fraudulently,
its final determination as to candidates, or any other question
of which it has jurisdiction, will be followed by the courts.”
3. White v. Berry, 171 U.S. 366 (1898).
Ruled that court of equity will refrain from exercising jurisdiction
over the appointment or removal of public officers.
Courts may not compel participation in political
parties or interfere with membership in them:
1. Democratic Party of U.S. v. Wisconsin, ex re. LaFollette,
450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981)
. Court ruled that freedom of political association
“necessarily presupposes the freedom to identify the people who
comprise the association, and to limit the association to those
2. Tashjian v. Republican Party of Connecticut,
479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986): Ruled
that a state could not constitutionally require that voters in party
primaries be registered members of that party.
The criteria for determining whether a question
is a “political question” is best described in Baker v. Carr,
which was explained in Nixon v. United States, 506 U.S. 224
(1993) as follows:
“A controversy is nonjusticiable -- i.e.,
involves a political question -- where there is a textually
demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it. . . .” [Nixon v.
United States, 506 U.S. 224 (1993)]
The second criteria above: “or a lack of judicially
discoverable and manageable standards for resolving it” is explained
in the same case:
The majority states that the question raised
in this case meets two of the criteria for political questions
set out in Baker v. Carr,
369 U.S. 186 (1962). It concludes first that there is "`a
textually demonstrable constitutional commitment of the issue
to a coordinate political department.'" It also finds that the
question cannot be resolved for "`a lack of judicially discoverable
and manageable standards.'" Ante, at 228.
Of course the issue in the political question
doctrine is not whether the constitutional text commits exclusive
responsibility for a particular governmental function to one
of the political branches. There are numerous instances of this
sort of textual commitment, e.g., Art. I, 8, and it is not thought
that disputes implicating these provisions are nonjusticiable.
Rather, the issue is whether the Constitution has given one
of the political branches final responsibility for interpreting
the scope and nature of such a power.
Although Baker directs the Court to search
for "a textually demonstrable constitutional commitment" of
such responsibility, there are few, if any, explicit and unequivocal
instances in the Constitution of this sort of textual commitment.
Conferral on Congress of the power to "Judge" qualifications
of its Members by Art. I, 5, may, for example, preclude judicial
review of whether a prospective member in fact meets those qualifications.
See Powell v. McCormack,
395 U.S. 486, 548 (1969). The courts therefore are usually
left to infer the presence of a political question from the
text and structure of the Constitution. In drawing the inference
that the Constitution has committed final interpretive authority
to one of the political branches, courts are sometimes aided
by textual evidence that the judiciary was not meant to exercise
judicial review - a coordinate inquiry expressed in Baker's
"lack of judicially discoverable and manageable standards" criterion.
See, e.g., Coleman v. Miller,
307 U.S. 433, 452 -454 (1939), where the Court refused to
241] the lifespan of a proposed constitutional
amendment, given Art. V's placement of the amendment process
with Congress and the lack of any judicial standard for resolving
the question. See also id., at 457-460 (Black, J., concurring).
[Nixon v. United States, 506 U.S. 224 (1993)]
Black's Law Dictionary, Sixth Edition, p. 1158-1159
“Political questions. Questions
of which courts will refuse to take cognizance, or to decide, on
account of their purely political character, or because their determination
would involve an encroachment upon the executive or legislative
“Political questions doctrine” holds that certain
issues should not be decided by courts because their resolution
is committed to another branch of government and/or because those
issues are not capable, for one reason or another, of judicial resolution.
Islamic Republic of Iran v. Pahlavi, 116 Misc.2d 590, 455 N.Y.S.2d
A matter of dispute which can be handled more appropriately
by another branch of the government is not a “justiciable” matter
for the courts. However, a state apportionment statute is
not such a political question as to render it nonjusticiable.
Baker v. Carr, 369 U.S. 186, 208-210, 82 S.Ct. 691, 705-706, 7 L.Ed.2d
[Black’s Law Dictionary, Sixth Edition, pp. 1158-1159]
Luther v. Borden, 48 U.S. 1 (1849):
This difference, however, between me and my brethren extends
only to the points in issue concerning martial law. But that being
a very important one in a free government, and this controversy
having arisen in the circuit to which I belong, and where the deepest
interest is felt in its decision, I hope to be excused for considering
that point fully and for assigning also some additional and different
reasons why I concur with the rest of the court in the opinion,
that the other leading question, the validity of the old charter
at that time, is not within our constitutional jurisdiction. These
two inquiries seem to cover the whole debatable ground, and I
refrain to give an opinion on the last question, which is merely
political, under a conviction that, as a judge, I possess no right
to do it, and not to avoid or conceal any views entertained by me
concerning them, as mine, before sitting on this bench and as a
citizen, were frequently and publicly avowed.
It must be very obvious on a little reflection that the last
is a mere political question. Indeed, large portions of the
points subordinate to it on this record, which have been so ably
discussed at the bar, are of a like character, rather than being
judicial in their nature and cognizance. For they extend to the
power of the people, independent of the legislature, to make constitutions,
to the right of suffrage among different classes of them in doing
this, to the authority of naked majorities, and other kindred questions
of such high political interest as during a few years to have agitated
much of the Union, no less than Rhode Island.
But, fortunately for our freedom from political excitements
in judicial duties, this court can never with propriety be called
on officially to be the umpire in questions merely political. The
adjustment of these questions belongs to the people and their political
representatives, either in the State or general government. These
questions relate to matters not to be settled on strict legal principles.
They are adjusted rather by inclination, or prejudice or compromise,
often. Some of them succeed or are defeated even by public policy
alone, or mere naked power, rather than intrinsic right. There being
so different tastes as well as opinions in politics, and especially
in forming constitutions, some people prefer foreign models, some
domestic, and some neither, while judges, on the contrary, for their
guides, have fixed constitutions and laws, given to them by others
and not provided by themselves. And those others are no more Locke
than an Abbe Sieyes, but the people. Judges, for constitutions,
must go to the people of their own country, and must [48 U.S. 52]
merely enforce such as the people themselves, whose judicial servants
they are, have been pleased to put into operation.
Another evil, alarming and little foreseen, involved in regarding
these as questions for the final arbitrament of judges would be
that, in such an event, all political privileges and rights would,
in a dispute among the people, depend on our decision finally. We
would possess the power to decide against, as well as for, them,
and, under a prejudiced or arbitrary judiciary, the public liberties
and popular privileges might thus be much perverted, if not entirely
prostrated. But, allowing the people to make constitutions and
unmake them, allowing their representatives to make laws and unmake
them, and without our interference as to their principles or policy
in doing it, yet, when constitutions and laws are made and put in
force by others, then the courts, as empowered by the State or the
Union, commence their functions and may decide on the rights which
conflicting parties can legally set up under them, rather than about
their formation itself. Our power begins after theirs ends.
Constitutions and laws precede the judiciary, and we act only under
and after them, and as to disputed rights beneath them, rather than
disputed points in making them. We speak what is the law, jus dicere,
we speak or construe what is the constitution, after both are made,
but we make, or revise, or control neither. The disputed
rights beneath constitutions already made are to be governed by
precedents, by sound legal principles, by positive legislation,
clear contracts, moral duties, and fixed rules; they are per se
questions of law, and are well suited to the education and habits
of the bench. But the other disputed points in making constitutions,
depending often, as before shown, on policy, inclination, popular
resolves and popular will and arising not in respect to private
rights, not what is meum and tuum, but in relation to politics,
they belong to politics, and they are settled by political tribunals,
and are too dear to a people bred in the school of Sydney and Russel
for them ever to intrust their final decision, when disputed, to
a class of men who are so far removed from them as the judiciary,
a class also who might decide them erroneously, as well as right,
and if in the former way, the consequences might not be able
to be averted except by a revolution, while a wrong decision by
a political forum can often be peacefully corrected by new elections
or instructions in a single month; and if the people, in the distribution
of powers under the constitution, should ever think of making judges
supreme arbiters in political controversies when not selected by
nor, frequently, amenable to them nor at liberty to follow such
various considerations in their judgments as [48 U.S. 53] belong
to mere political questions, they will dethrone themselves and lose
one of their own invaluable birthrights; building up in this way
-- slowly, but surely -- a new sovereign power in the republic,
in most respects irresponsible and unchangeable for life, and one
more dangerous, in theory at least, than the worst elective oligarchy
in the worst of times. Again, instead of controlling the
people in political affairs,
the judiciary in our system was designed rather to control individuals,
on the one hand, when encroaching, or to defend them, on the other,
under the Constitution and the laws, when they are encroached upon.
And if the judiciary at times seems to fill the important station
of a check in the government, it is rather a check on the legislature,
who may attempt to pass laws contrary to the Constitution, or on
the executive, who may violate both the laws and Constitution, than
on the people themselves in their primary capacity as makers and
amenders of constitutions.
Hence, the judiciary power is not regarded by elementary
writers on politics and jurisprudence as a power coordinate or commensurate
with that of the people themselves, but rather coordinate with that
of the legislature. Kendall v. United States, 12 Peters
526. Hence, too, the following view was urged when the adoption
of the Constitution was under consideration:
It is the more rational to suppose that the courts were
designed to be an intermediate body between the people and the
legislature in order, among other things, to keep the latter
within the limits assigned to their authority.
Federalist, No. 77, by Hamilton.
Nor does the conclusion by any means suppose a superiority
of the judicial to the legislative power. It only supposes that
the power of the people is superior to both,&c., &c.
But how would this superiority be as to this court if we could
decide finally on all the political claims and acts of the people
and overrule or sustain them according only to our own views? So
the judiciary, by its mode of appointment, long duration in office,
and slight accountability, is rather fitted to check legislative
power than political, and enforce what the political authorities
have manifestly ordained. These last authorities are, by their pursuits
and interests, better suited to make rules, we to expound and enforce
them after made.
The subordinate questions which also arise here in connection
with the others, such as whether all shall vote in forming or amending
those constitutions who are capable and accustomed to transact business
in social and civil life, and none others, and whether, in great
exigencies of oppression by the legislature itself and refusal by
it to give relief, the people may not take the subject into their
own hands, independent of the legislature, [48 U.S. 54] and whether
a simple plurality in number on such an occasion, or a majority
of all, or a larger proportion, like two-thirds or three-fourths,
shall be deemed necessary and proper for a change, and whether,
if peacefully completed, violence can afterwards be legally used
against them by the old government, if that is still in possession
of the public property and public records, whether what are published
and acted on as the laws and constitution of a State were made by
persons duly chosen or not, were enrolled and read according to
certain parliamentary rules or not, were in truth voted for by a
majority or two thirds -- these and several other questions
equally debatable and difficult in their solution are in some aspects
a shade less political. But they are still political. They are too
near all the great fundamental principles in government, and are
too momentous ever to have been intrusted by our jealous fathers
to a body of men like judges, holding office for life, independent
in salary, and not elected by the people themselves.
Non nostrum tantas componere lites. Where, then, does our power,
as a general rule, begin? In what place runs the true boundary line?
It is here. Let the political authorities admit as valid a constitution
made with or without previous provision by the legislature, as in
the last situation Tennessee and Michigan were introduced into the
Union. See Federalist, No. 40, and 2 Ell.Deb. 57; 13 Regis by Y.
95, 1164, and Cong. Globe, App., 78, 137, 147. Let the collected
will of the people as to changes be so strong, and so strongly evinced,
as to call down no bills of pains and penalties to resist it and
no arming of the militia or successful appeals to the general government
to suppress it by force, as none were in some cases abroad as well
as in America, and one recently in New York, which might be cited
beside those above. See A.D. 1846, and opinion of their judges.
In short, let a constitution or law, however originating, be clearly
acknowledged by the existing political tribunals, and be put and
kept in successful operation. The judiciary can then act in conformity
to and under them. Kemper v. Hawkins, 1 Virg.Cas., 74, App. Then,
when the claims of individuals come in conflict under them, it is
the true province of the judiciary to decide what they rightfully
are under such constitutions and laws, rather than to decide whether
those constitutions and laws themselves have been rightfully or
Again, the Constitution of the United States enumerates
specially the cases over which its judiciary is to have cognizance,
but nowhere includes controversies between the people of a State
as to the formation or change of their constitutions. [48 U.S. 55]
See Article 3, sec. 2. Though at first the federal judiciary was
empowered to entertain jurisdiction where a State was a party in
a suit, it has since been deprived even of that power by a jealous
country except in cases of disputed boundary. Article 3, sec. 2;
Amendment 11th; Massachusetts v. Rhode Island, 12 Peters 755.
If it be asked what redress have the people, if wronged in these
matters, unless by resorting to the judiciary, the answer is, they
have the same as in all other political matters. In those, they
go to the ballot boxes, to the legislature or executive, for the
redress of such grievances as are within the jurisdiction of each,
and, for such as are not, to conventions and amendments of constitutions.
And when the former fail, and these last are forbidden by statutes,
all that is left in extreme cases, where the suffering is intolerable
and the prospect is good of relief by action of the people without
the forms of law, is to do as did Hampden and Washington, and venture
action without those forms, and abide the consequences. Should strong
majorities favor the change, it generally is completed without much
violence. In most states, where representation is not unequal, or
the right of suffrage is not greatly restricted, the popular will
can be felt and triumph through the popular vote and the delegates
of the people in the legislature, and will thus lead soon, and peacefully,
to legislative measures ending in reform, pursuant to legislative
countenance and without the necessity of any stronger collateral
course. But when the representation is of a character which defeats
this, the action of the people, even then, if by large majorities,
will seldom be prosecuted with harsh pains and penalties, or resisted
Changes, thus demanded and thus supported, will usually be allowed
to go into peaceful consummation. But when not so allowed, or when
they are attempted by small or doubtful majorities, it must be conceded
that it will be at their peril, as they will usually be resisted
by those in power by means of prosecutions, and sometimes by violence,
and, unless crowned by success, and thus subsequently ratified,
they will often be punished as rebellious or treasonable.
If the majorities, however, in favor of changes happen to be
large, and still those in power refuse to yield to them, as in the
English revolution of 1688, or in our own of 1776, the popular movement
will generally succeed, though it be only by a union of physical
with moral strength; and when triumphant, it will, as on those occasions,
confirm by subsequent forms of law what may have begun without them.
There are several other questions, also, which may arise under
our form of government that are not properly of judicial [48 U.S.
56] cognizance. They originate in political matters, extend to political
objects, and do not involve any pecuniary claims or consequences
between individuals so as to become grounds for judicial inquiry.
These questions are decided sometimes by legislatures, or heads
of departments, or by public political bodies, and sometimes by
officers, executive or military, so as not to be revisable here.
See Decatur v. Paulding, 14 Peters 497.
Looking to all these considerations, it appears to me that we
cannot rightfully settle those grave political questions which,
in this case, have been discussed in connection with the new constitution;
and, as judges, our duty is to take for a guide the decision made
on them by the proper political powers, and, whether right or wrong
according to our private opinions, enforce it till duly altered.
But it is not necessary to rest this conclusion on reasoning alone.
Several precedents in this court, as well as in England, show the
propriety of it.
In Foster et al. v. Neilson, 2 Peters 309, where the title to
the property depended on the question whether the land was within
a cession by treaty to the United States, it was held that, after
our government, legislative and executive, had claimed jurisdiction
over it, the courts must consider that the question was a political
one the decision of which, having been made in this manner, they
must conform to. See also 6 Peters 711 and Garcia v. Lee, 12 Peters
520; 13 Peters 419. In The Cherokee Nation v. The State of Georgia,
5 Peters 20, the court expressed strong doubts whether it was not
a political question, not proper for their decision, to protect
the Cherokee Indians in their possessions, and to restrain the State
of Georgia and construe and enforce its treaty obligations. Justice
Johnson seemed decisive that it was.
In Massachusetts v. Rhode Island, 12 Peters 736, 738, it
was held that the boundaries between States was a political question
per se, and should be adjusted by political tribunals unless agreed
to be settled as a judicial question, and in the Constitution so
provided for. Garcia v. Lee, ib., 520.
In Barclay v. Russel, 3 Ves. 424, in respect to confiscations,
it was held to be a political question, and a subject of treaty,
and not of municipal jurisdiction. P. 434.
In Nabob of the Carnatic v. The East India Company, 2 Ves. jun.
56, the court decided that political treaties between a foreign
state and subjects of Great Britain, conducting as a state under
acts of Parliament, are not a matter of municipal jurisdiction,
and to be examined and enforced by the judiciary.
Another class of political questions, coming still nearer
this, is which must be regarded as the rightful government abroad
[48 U.S. 57] between two contending parties? That is never settled
by the judiciary, but is left to the decision of the general government.
The Cherokee Case, 5 Peters 50; and Williams v. Suffolk Ins. Co.,
13 Peters 419; 2 Cranch 241; Rose v. Himely, 4 Cranch 268; United
States v. Palmer, 3 Wheat. 634, and Gelston v. Hoyt, ib., 246; The
Divina Pastora, 4 Wheat. 64; 14 Ves. 353; 11 Ves. 583; 1 Edw. Ad.
The doctrines laid down in Palmer's case are as directly applicable
to this in the event of two contending parties in arms in a domestic
war as in a foreign. If one is recognized by the executive or legislature
of the Union as the de facto government, the judiciary can only
conform to that political decision. See also The Santissima Trinidad,
7 Wheat. 336, 337; and, further, that if our general government
recognizes either as exclusively in power, the judiciary must sustain
its belligerent rights, see 3 Sumner 270. In the case
of the City of Berne v. The Bank of England, 9 Ves. 348, it was
held that "a judicial court cannot take notice of a foreign government
not acknowledged by the government of the country in which the court
sits." The same rule has been applied by this court in case
of a contest as to which is the true constitution between two, or
which possesses the true legislative power in one, of our own States,
those citizens acting under the new constitution, which is objected
to as irregularly made, or those under the old territorial government
therein. Semb. Scott et al. v. Jones et al., 5 Howard 374. In that
case, we held that no writ of error lies to us to revise a decision
of a State court where the only question is the validity of the
statute on account of the political questions and objections just
named. It was held also in Williams v. Suffolk Ins. Co., 3 Sumner
270, that, where a claim exists by two governments over a
country, the courts of each are bound to consider the claims of
their own government as right, being settled for the time being
by the proper political tribunal. And hence no right exists in their
judicial authorities to revise that decision. Pp. 273, 275;
S.C., 13 Peters 419.
Omnia rite acta. It might otherwise happen that the extraordinary
spectacle might be presented of the courts of a country disavowing
and annulling the acts of its own government in matters of state
and political diplomacy.
This is no new distinction in judicial practice, any more than
in judicial adjudications. The pure mind of Sir Matthew Hale, after
much hesitation, at last consented to preside on the bench in administering
the laws between private parties under a government established
and recognized by other governments, and in full possession de facto
of the records and power of the kingdom, but without feeling satisfied
on inquiring, as a [48 U.S. 58] judicial question, into its legal
rights. Cromwell had "gotten possession of the government," and
expressed a willingness "to rule according to the laws of the land"
-- by "red gowns rather than red coats," as he is reported to have
quaintly remarked. And this Hale thought justified him in acting
as a judge. Hale's Hist. of the Com.Law, p. 14, Preface. For a like
reason, though the power of Cromwell was soon after overturned,
and Charles and Second restored, the judicial decisions under the
former remained unmolested on this account, and the judiciary went
on as before, still looking only to the de facto government for
the time being. Grotius virtually holds the like doctrine. B 1,
ch. 4, sec. 20, and B. 2, ch. 13, sec. 11. Such was the case likewise
over most of this country after the Declaration of Independence,
till the acknowledgment of it by England in 1783. 3 Story's Com.
on Const., §§ 214, 215. And such is believed to have been the course
in France under all her dynasties and regimes during the last half-century.
These conclusions are strengthened by the circumstance that the
Supreme Court of Rhode Island, organized since under the second
new constitution, has adopted this principle. In numerous instances,
this court has considered itself bound to follow the decision of
the State tribunals on their own constitutions and laws. See cases
in Smith v. Babcock, 2 Woodb. & Min.; 5 Howard 139; Elmendorf v.
Taylor, 10 Wheat. 159; Bank of United States v. Daniel et al., 12
Peters 32. This, of course, relates to their validity when not overruling
any defence set up under the authority of the United States. None
such was set up in the trial of Dorr, and yet, after full hearing,
the Supreme Court of Rhode Island decided that the old charter and
its legislature were the political powers which they were bound
to respect, and the only ones legally in force at the time of this
transaction, and accordingly convicted and punished the governor
chosen under the new constitution for treason, as being technically
committed, however pure may have been his political designs or private
character. Report of Dorr's Trial, 1844, pp. 130, 131. The reasons
for this uniform compliance by us with State decisions made before
ours on their own laws and constitutions, and not appealed from,
are given by Chief Justice Marshall with much clearness. It is only
necessary to refer to his language in Elmendorf v. Taylor, 10 Wheat.
Starting, then, as we are forced to here, with several political
questions arising on this record, and those settled by political
tribunals in the State and general government, and whose decisions
on them we possess no constitutional authority to revise, all which,
apparently, is left for us to decide is the [48 U.S. 59] other point,
whether the statute establishing martial law over the whole State,
and under which the acts done by the defendants are sought to be
justified, can be deemed constitutional.
To decide a point like this last is clearly within judicial cognizance,
it being a matter of private personal authority and right, set up
by the defendants under constitutions and laws, and not of political
power, to act in relation to the making of the former.
v. Borden, 48 U.S. 1 (1849)]
Baker v. Carr, 369 U.S. 186 (1962)
4. The Court has refused to exercise its jurisdiction to pass
on "abstract questions of political power, of sovereignty, of government."
Massachusetts v. Mellon,
262 U.S. 447, 485 . See Texas v. Interstate Commerce Commission,
258 U.S. 158, 162 ; New Jersey v. Sargent,
269 U.S. 328, 337 . The "political question" doctrine, in this
aspect, reflects the policies underlying the requirement of "standing":
that the litigant who would challenge official [369 U.S. 186, 287]
action must claim infringement of an interest particular and personal
to himself, as distinguished from a cause of dissatisfaction with
the general frame and functioning of government - a complaint that
the political institutions are awry. See Stearns v. Wood,
236 U.S. 75 ; Fairchild v. Hughes,
258 U.S. 126 ; United Public Workers v. Mitchell,
330 U.S. 75, 89 -91. What renders cases of this kind non-justiciable
is not necessarily the nature of the parties to them, for the Court
has resolved other issues between similar parties;
17 nor is it the nature of the legal
question involved, for the same type of question has been adjudicated
when presented in other forms of controversy.
18 The crux of the matter
is that courts are not fit instruments of decision where what is
essentially at stake is the composition of those large contests
of policy traditionally fought out in non-judicial forums, by which
governments and the actions of governments are made and unmade.
See Texas v. White, 7 Wall. 700; White v. Hart, 13 Wall. 646; Phillips
92 U.S. 130 ; Marsh v. Burroughs, 1 Woods 463, 471-472 (Bradley,
Circuit Justice); cf. Wilson v. Shaw,
204 U.S. 24 ; but see Coyle v. Smith,
221 U.S. 559 . Thus, where the Cherokee Nation sought by an
original motion to restrain the State of Georgia from the enforcement
of laws which assimilated Cherokee territory to the State's counties,
abrogated Cherokee law, and abolished Cherokee government, the Court
held that such a claim was not judicially cognizable. Cherokee Nation
v. Georgia, 5 Pet. 1. 19 And in
Georgia [369 U.S. 186, 288] v. Stanton, 6 Wall. 50,
the Court dismissed for want of jurisdiction a bill by the State
of Georgia seeking to enjoin enforcement of the Reconstruction Acts
on the ground that the command by military districts which they
established extinguished existing state government and replaced
it with a form of government unauthorized by the Constitution:
"That these matters, both as stated in the body of the
bill; and, in the prayers for relief, call for the judgment
of the court upon political questions, and, upon rights, not
of persons or property, but of a political character, will hardly
be denied. For the rights for the protection of which our authority
is invoked, are the rights of sovereignty, of political jurisdiction,
of government, of corporate existence as a State, with all its
constitutional powers and privileges. No case of private rights
or private property infringed, or in danger of actual or threatened
infringement, is presented by the bill, in a judicial form,
for the judgment of the court." Id., at 77.
21 [369 U.S. 186, 289]
5. The influence of these converging considerations - the
caution not to undertake decision where standards meet for judicial
judgment are lacking, the reluctance to interfere with matters of
state government in the absence of an unquestionable and effectively
enforceable mandate, the unwillingness to make courts arbiters of
the broad issues of political organization historically committed
to other institutions and for whose adjustment the judicial process
is ill-adapted - has been decisive of the settled line of cases,
reaching back more than a century, which holds that Art. IV, 4,
of the Constitution, guaranteeing to the States "a Republican Form
of Government," 22 is not enforceable
through the courts. E. g., O'Neill v. Leamer,
239 U.S. 244 ; Mountain Timber Co. v. Washington,
243 U.S. 219 ; Cochran v. Board of Education,
281 U.S. 370 ; Highland Farms Dairy, Inc., v. Agnew,
300 U.S. 608 . 23 Claims resting
on this specific [369 U.S. 186, 290] guarantee
of the Constitution have been held nonjusticiable which challenged
state distribution of powers between the legislative and judicial
branches, Ohio ex rel. Bryant v. Akron Metropolitan Park District,
281 U.S. 74 , state delegation of power to municipalities, Kiernan
v. Portland, Oregon,
223 U.S. 151 , state adoption of the referendum as a legislative
institution, Ohio ex rel. Davis v. Hildebrant,
241 U.S. 565, 569 , and state restriction upon the power of
state constitutional amendment, Marshall v. Dye,
231 U.S. 250, 256 -257. The subject was fully considered in
Pacific States Telephone & Telegraph Co. v. Oregon,
223 U.S. 118 , in which the Court dismissed for want of jurisdiction
a writ of error attacking a state license-tax statute enacted by
the initiative, on the claim that this mode of legislation was inconsistent
with a Republican Form of Government and violated the Equal Protection
Clause and other federal guarantees. After nothing ". . . the ruinous
destruction of legislative authority in matters purely political
which would necessarily be occasioned by giving sanction
[369 U.S. 186, 291] to the doctrine which
underlies and would be necessarily involved in sustaining the propositions
contended for," 24 the Court said:
". . . [The] essentially political nature [of this claim] is
at once made manifest by understanding that the assault which
the contention here advanced makes it [sic] not on the tax as
a tax, but on the State as a State. It is addressed to the framework
and political character of the government by which the statute
levying the tax was passed. It is the government, the political
entity, which (reducing the case to its essence) is called to
the bar of this court, not for the purpose of testing judicially
some exercise of power assailed, on the ground that its exertion
[369 U.S. 186, 292] has injuriously
affected the rights of an individual because of repugnancy to
some constitutional limitation, but to demand of the State that
it establish its right to exist as a State, republican in form."
Id., at 150-151.
The starting point of the doctrine applied in these cases is, of
course, Luther v. Borden, 7 How. 1. The case arose out of the Dorr
Rebellion in Rhode Island in 1841-1842. Rhode Island, at the time
of the separation from England, had not adopted a new constitution
but had continued, in its existence as an independent State, under
its original royal Charter, with certain statutory alterations.
This frame of government provided no means for amendment of the
fundamental law; the right of suffrage was to be prescribed by legislation,
which limited it to freeholders. In the 1830's, largely because
of the growth of towns in which there developed a propertied class
whose means were not represented by freehold estates, dissatisfaction
arose with the suffrage qualifications of the charter government.
In addition, population shifts had caused a dated apportionment
of seats in the lower house to yield substantial numerical inequality
of political influence, even among qualified voters. The towns felt
themselves underrepresented, and agitation began for electoral reform.
When the charter government failed to respond, popular meetings
of those who favored the broader suffrage were held and delegates
elected to a convention which met and drafted a state constitution.
This constitution provided for universal manhood suffrage (with
certain qualifications); and it was to be adopted by vote of the
people at elections at which a similarly expansive franchise obtained.
This new scheme of government was ratified at the polls and declared
effective by the convention, but the government elected and organized
under it, with Dorr at its head, never came to power. The
[369 U.S. 186, 293] charter government
denied the validity of the convention, the constitution and its
government and, after an insignificant skirmish, routed Dorr and
his followers. It meanwhile provided for the calling of its own
convention, which drafted a constitution that went peacefully into
effect in 1843. 25
Luther v. Borden was a trespass action brought by one of Dorr's
supporters in a United States Circuit Court to recover damages for
the breaking and entering of his house. The defendants justified
under military orders pursuant to martial law declared by the charter
government, and plaintiff, by his reply, joined issue on the legality
of the charter government subsequent to the adoption of the Dorr
constitution. Evidence offered by the plaintiff tending to establish
that the Dorr government was the rightful government of Rhode Island
was rejected by the Circuit Court; the court charged the jury that
the charter government was lawful; and on a verdict for defendants,
plaintiff brought a writ of error to this Court.
The Court, through Mr. Chief Justice Taney, affirmed. After noting
that the issue of the charter government's legality had been resolved
in that government's favor by the state courts of Rhode Island -
that the state courts, deeming the matter a political one unfit
for judicial determination, had declined to entertain attacks upon
the existence and authority of the charter government - the Chief
Justice held that the courts of the United States must follow those
of the State in this regard. Id., at 39-40. It was recognized that
the compulsion to follow [369 U.S. 186, 294]
state law would not apply in a federal court in the face of a superior
command found in the Federal Constitution, ibid., but no such command
was found. The Constitution, the Court said - referring to the Guarantee
Clause of the Fourth Article - ". . . as far as it has provided
for an emergency of this kind, and authorized the general government
to interfere in the domestic concerns of a State, has treated the
subject as political in its nature, and placed the power in the
hands of that department." Id., at 42.
"Under this article of the Constitution it rests with Congress
to decide what government is the established one in a State.
For as the United States guarantee to each State a republican
government, Congress must necessarily decide what government
is established in the State before it can determine whether
it is republican or not. And when the senators and representatives
of a State are admitted into the councils of the Union, the
authority of the government under which they are appointed,
as well as its republican character, is recognized by the proper
constitutional authority. And its decision is binding on every
other department of the government, and could not be questioned
in a judicial tribunal. It is true that the contest in this
case did not last long enough to bring the matter to this issue;
and as no senators or representatives were elected under the
authority of the government of which Mr. Dorr was the head,
Congress was not called upon to decide the controversy. Yet
the right to decide is placed there, and not in the courts."
Ibid. 26 [369 U.S. 186,
In determining this issue non-justiciable, the Court was sensitive
to the same considerations to which its later decisions have given
the varied applications already discussed. It adverted to the delicacy
of judicial intervention into the very structure of government.
27 It acknowledged that tradition
had long entrusted questions of this nature to non-judicial processes,
28 and that judicial processes were
unsuited to their decision. 29 The
absence of guiding standards for judgment was critical, for the
question whether the Dorr constitution had been rightfully adopted
depended, in part, upon the extent of the franchise to be recognized
- the very point of contention over which rebellion had been fought.
v. Carr, 369 U.S. 186 (1962)]
Morse v. Republican Party of Virginia, 517 U.S. 186 (1996)
By contrast, convening the members of a political association
in order to select the person who can best represent and advance
the group's goals is not, and historically never has been, the province
of the State - much less its exclusive province. The selection
of a party candidate is not the type of function, such as eminent
domain, that is "traditionally associated with sovereignty." Jackson
v. Metropolitan Edison Co.,
419 U.S., at 353 . Cf. San Francisco Arts & Athletics, Inc.
v. United States Olympic Comm.,
483 U.S. 522, 545 (1987) (holding that United States Olympic
Committee is not a state actor because "[n]either the conduct nor
the coordination of amateur sports has been a traditional governmental
function"); Blum v. Yaretsky,
457 U.S. 991, 1011 -1012 (1982) (holding that nursing home is
not a state actor in part because provision of nursing home services
is not a traditional and exclusive sovereign function); Edmonson
v. Leesville Concrete Co.,
500 U.S., at 638 -641 (O'CONNOR, J., dissenting) (arguing that
exercise of peremptory strikes by litigants in state court is not
a government function but a matter of private choice). Though States
often limit ballot access to persons who are official party nominees
or who meet the requirements for independent candidates, see, e.g.,
Storer v. Brown,
415 U.S. 724 (1974), no State to my knowledge has ever held
a convention in order to designate a political party's nominee for
public office. Indeed, it would subvert the very purpose of democracy
if the State possessed sole control over the identification of candidates
for elective office. I therefore fail to see how the selection of
a party's candidate for United States Senator is a public electoral
function. Cf. ante, at 6. 14
v. Republican Party of Virginia, 517 U.S. 186 (1996)]
Vieth v. Jubelirer 541 U.S. 267, *277-278, 124 S.Ct. 1769,**1776
- 1777 (U.S.Pa.,2004)
As Chief Justice Marshall proclaimed two centuries ago, "[i]t
is emphatically the province and duty of the judicial department
to say what the law is." Marbury v. Madison, 1 Cranch 137, 177,
2 L.Ed. 60 (1803). Sometimes, however, the law is that the judicial
department has no business entertaining the claim of unlawfulness-because
the question is entrusted to one of the political branches or involves
no judicially enforceable rights. See, e.g., Nixon v. United States,
506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (challenge to
procedures used in Senate impeachment proceedings); Pacific States
Telephone & Telegraph Co. v.
Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912) (claims
arising under the Guaranty Clause of Article IV, § 4). Such questions
are said to be "nonjusticiable," or "political questions."
In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962),
we set forth six independent tests for the existence of a political
" a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or  a lack of judicially
discoverable and manageable standards *278 for resolving it; or
 the impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion; or  the impossibility
of a court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or 
an unusual need for unquestioning adherence to a political decision
already made; or  the potentiality of embarrassment from multifarious
pronouncements by various departments on one question." Id., at
217, 82 S.Ct. 691.
These tests are probably listed in descending order of both importance
and certainty. The second is at issue here, and there is no doubt
of its validity. "The judicial Power" created by **1777 Article
III, § 1, of the Constitution is not whatever judges choose to do,
see Valley Forge Christian College v. Americans United for Separation
of Church and State, Inc., 454 U.S. 464, 487, 102 S.Ct. 752, 70
L.Ed.2d 700 (1982); cf. Grupo Mexicano de Desarrollo, S.A. v. Alliance
Bond Fund, Inc., 527 U.S. 308, 332-333, 119 S.Ct. 1961, 144 L.Ed.2d
319 (1999), or even whatever Congress chooses to assign them, see
Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-577, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992); Chicago & Southern Air Lines, Inc.
v. Waterman S.S. Corp., 333 U.S. 103, 110-114, 68 S.Ct. 431, 92
L.Ed. 568 (1948). It is the power to act in the manner traditional
for English and American courts. One of the most obvious limitations
imposed by that requirement is that judicial action must be governed
by standard, by rule. Laws promulgated by the Legislative Branch
can be inconsistent, illogical, and ad hoc; law pronounced by the
courts must be principled, rational, and based upon reasoned distinctions.
[Vieth v. Jubelirer 541 U.S. 267, *277-278, 124 S.Ct. 1769,**1776
- 1777 (U.S.Pa.,2004)]
Injunctions in a Nutshell, John F. Dobbyn, 1974, West Group,
ISBN 0-314-28423-0, pp. 121-125
b. Political Questions
The major area in which an equity court will defer to the primary
jurisdiction of another branch of the government is that of "political
questions". The basic characteristic of a political question
is that its resolution by the court would lead the court into conflict
with one or both of the coordinate branches of government--i.e.,
the executive or legislative. The doctrine of abstention here
is based primarily on observance of the doctrine of separation of
In 1894, the court of Fletcher v. Tuttle, 151 Ill. 41, 37 N.E.
683 (1894), stated the principle in clear-line, doctrinaire terms.
Political rights consisted in the power to participate, directly
or indirectly, in the establishment or management of the government.
Civil rights were those which had no relation to the establishment,
support, or management of the government. The rule was simply
laid on these premises that courts of equity (as opposed to courts
of law) would not interpose to protect rights which were merely
political, where no civil or property right was involved.
Much like the withdrawal from a hard-line rule to the principle
of deciding each case according to numerous relevant criteria that
took place in Flast v. Cohen, supra, in the area of standing, a
similar reformation took place here in the landmark case of Baker
v. Carr, 369 U.S. 186 (1962). An equity action was brought
by petitioners challenging the apportioning of Tennessee's legislators
among the state's 95 counties on grounds of denial of equal protection
under the Fourteenth Amendment. The Court refused to dismiss
the case, stating that, "the mere fact that the suit seeks protection
of a political right does not mean it presents a political question."
Instead of an automatic rule, the Court laid down criteria for the
determination in each case of whether or not deciding the case would
interfere with the separation of powers. The criteria are:
- Has the issue been committed expressly by the Constitution
to a coordinate political branch of the government?
- Are there judicially discoverable and manageable standards
for deciding the case?
- Can the case be decided without some initial policy determination
of a kind clearly for nonjudicial discretion.
- Can the court decide the case independently without expressing
lack of the respect due a coordinate branch of the government?
- Is there an unusual need for unquestioning adherence to
a political decision already made?
- Is there a potentiality for embarrassment from multifarious
decisions by different branches of the government on the same
Applying these criteria there are certain clear categories of
cases in which the equity court will abstain on the grounds of a
- The broadest area conceded entirely to the executive and
legislative (political) branches involves all questions dealing
with foreign relations. The fact that foreign policy has
been committed the constitutionally to these branches, together
with the absolute need for a single-voiced statement of this
government's positions, demands this absolute approach.
Specific issues in this category include the existence and interpretation
of treaties, recognition of foreign governments, and recognition
of states of war or peace.
- Equity courts will also refrain from interfering in the
administration of the internal affairs of a political party.
In O'Brien v. Brown, 409 U.S. 1 (1972), for example, the court
was asked to overrule the decision of the Credentials Committee
of the 1972 Democratic National Convention in regard to the
seating of certain delegates. The Circuit Court rejected
the claims of the petitioners on the merits. The Supreme
Court, however, stayed the judgment of the Circuit Court--in
effect opted for abstention--to allow the political process
to function free from judicial supervision.
v. Torquato, 393 F.2d 370 (3rd Cir. 1965), the court dismissed
the petitioner's challenge to the method of selecting the Democratic
County Committee and Chairman. Since the case involved
a fight for control of ordinary party affairs, it amounted to
a political question. Farmer-Labor State Central Committee
v. Holm, 227 Minn. 52, 33 N.W.2d 831 (1948), where the petition
asked the court to order the secretary of state to reject one
certificate of nominees for election as electors of the D-F-L
Party and to place on the ballot the names listed on another
certificate. The court ruled that, "IN factional controversies
within the party, where there is no controlling statute or clear
right based on statute law, the courts will not assume jurisdiction,
but will leave the matter for determination within the party
organization. . . Such a convention is a deliberative body,
and unless it acts arbitrarily, oppressively, or fraudulently,
its final determination as to candidates, or any other question
of which it has jurisdiction, will be followed by the courts."
- A court of equity will also refrain from exercising jurisdiction
over the appointment or removal of public officers. The
primary reason here is that this power has generally been vested
in the executive branch or an administrative board, with specific
forms or action established for bringing the matter before the
courts of common law, such as mandamus, prohibition, or quo
warranto. By interjecting injunctive relief, the equity
court would not only be interfering with matters entrusted to
another branch, but would also be impinging on the jurisdiction
of the common law courts. White v. Berry, 171 U.S. 366
[Injunctions in a Nutshell, John F. Dobbyn, 1974, West Group,
ISBN 0-314-28423-0, pp. 121-125]