BAKER v. CARR (1962)
269 U.S. 186 (1962)
Argued: October 9, 1961Decided: March 26, 1962
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This civil action was brought under 42 U.S.C. 1983 and 1988
to redress the alleged deprivation of federal constitutional rights. The
complaint, alleging that by means of a 1901 statute of Tennessee apportioning
the members of the General Assembly among the State's 95 counties, 1
"these plaintiffs and others similarly situated, [369 U.S. 186, 188] are denied the equal protection of the laws
accorded them by the Fourteenth Amendment to the Constitution of the United
States by virtue of the debasement of their votes," was dismissed by a
three-judge court convened under 28 U.S.C. 2281 in the Middle District of
Tennessee. 2 The court held that it lacked jurisdiction of the subject matter
and also that no claim was stated upon which relief could be granted. 179 F.
Supp. 824. We noted probable jurisdiction of the appeal. 364 U.S. 898 . 3 We hold that the dismissal was error, and remand the
cause to the District Court for trial and further proceedings consistent with
this opinion.
The General Assembly of Tennessee consists of the Senate
with 33 members and the House of Representatives with 99 members. The Tennessee
Constitution provides in Art. II as follows:
"Sec. 3. Legislative authority
- Term of office. - The Legislative authority of this State shall be vested in
a General Assembly, which shall consist of a Senate and House of
Representatives, both dependent on the people; who shall hold their offices for
two years from the day of the general election.
"Sec. 4. Census. - An
enumeration of the qualified voters, and an apportionment of the
Representatives in the General Assembly, shall be made in the year one thousand
eight hundred and seventy-one, and within every subsequent term of ten years.
"Sec. 5. Apportionment of
representatives. - The number of Representatives shall, at the several [369
U.S. 186, 189] periods of making the
enumeration, be apportioned among the several counties or districts, according
to the number of qualified voters in each; and shall not exceed seventy-five,
until the population of the State shall be one million and a half, and shall
never exceed ninety-nine; Provided, that any county having two-thirds of the
ratio shall be entitled to one member.
"Sec. 6. Apportionment of
senators. - The number of Senators shall, at the several periods of making the
enumeration, be apportioned among the several counties or districts according
to the number of qualified electors in each, and shall not exceed one-third the
number of representatives. In apportioning the Senators among the different
counties, the fraction that may be lost by any county or counties, in the
apportionment of members to the House of Representatives, shall be made up to
such county or counties in the Senate, as near as may be practicable. When a
district is composed of two or more counties, they shall be adjoining; and no
county shall be divided in forming a district."
Thus, Tennessee's standard for allocating legislative representation
among her counties is the total number of qualified voters resident in the
respective counties, subject only to minor qualifications. 4 Decennial
reapportionment [369 U.S. 186, 190] in
compliance with the constitutional scheme was effected by the General Assembly
each decade from 1871 to 1901. The 1871 apportionment 5 was preceded by an 1870
statute requiring an enumeration. 6 The 1881 apportionment involved three
statutes, the first authorizing an enumeration, the second enlarging the Senate
from 25 to [369 U.S. 186, 191] 33
members and the House from 75 to 99 members, and the third apportioning the
membership of both Houses. 7 In 1891 there were both an enumeration and an
apportionment. 8 In 1901 the General Assembly abandoned separate enumeration in
favor of reliance upon the Federal Census and passed the Apportionment Act here
in controversy. 9 In the more than 60 years since that action, all proposals in
both Houses of the General Assembly for reapportionment have failed to pass. 10 [369 U.S. 186,
192]
Between 1901 and 1961, Tennessee has experienced substantial
growth and redistribution of her population. In 1901 the population was
2,020,616, of whom 487,380 were eligible to vote. 11 The 1960 Federal Census
reports the State's population at 3,567,089, of whom 2,092,891 are eligible to
vote. 12 The relative standings of the counties in terms of qualified voters
have changed significantly. It is primarily the continued application of the
1901 Apportionment Act to this shifted and enlarged voting population which
gives rise to the present controversy.
Indeed, the complaint alleges that the 1901 statute, even as
of the time of its passage, "made no apportionment of Representatives and
Senators in accordance with the constitutional formula . . ., but instead
arbitrarily and capriciously apportioned representatives in the Senate and
House without reference . . . to any logical or reasonable formula
whatever." 13 It is further alleged [369 U.S. 186, 193] that "because of the population changes
since 1900, and the failure of the Legislature to reapportion itself since
1901," the 1901 statute became "unconstitutional and obsolete."
Appellants also argue that, because of the composition of the legislature
effected by the 1901 Apportionment Act, redress in the form of a state
constitutional amendment to change the entire mechanism for reapportioning, or
any other change short of that, is difficult or impossible. 14 The complaint
concludes that "these plaintiffs [369 U.S. 186, 194] and others similarly situated, are denied
the equal protection of the laws accorded them by the Fourteenth Amendment to
the Constitution of the United States by virtue of the debasement of their
votes." 15 They seek a [369 U.S. 186, 195] declaration that the 1901 statute is
unconstitutional and an injunction restraining the appellees from acting to
conduct any further elections under it. They also pray that unless and until
the General Assembly enacts a valid reapportionment, the District Court should
either decree a reapportionment by mathematical application of the Tennessee
constitutional formulae to the most recent Federal Census figures, or direct
the appellees to conduct legislative elections, primary and general, at large.
They also pray for such other and further relief as may be appropriate.
I.
THE DISTRICT COURT'S
OPINION AND ORDER OF DISMISSAL.
Because we deal with this case on appeal from an order of
dismissal granted on appellees' motions, precise identification [369 U.S. 186,
196] of the issues presently confronting
us demands clear exposition of the grounds upon which the District Court rested
in dismissing the case. The dismissal order recited that the court sustained
the appellees' grounds "(1) that the Court lacks jurisdiction of the
subject matter, and (2) that the complaint fails to state a claim upon which
relief can be granted . . . ."
In the setting of a case such as this, the recited grounds
embrace two possible reasons for dismissal:
First: That the facts and injury alleged, the legal bases
invoked as creating the rights and duties relied upon, and the relief sought,
fail to come within that language of Article III of the Constitution and of the
jurisdictional statutes which define those matters concerning which United
States District Courts are empowered to act;
Second: That, although the matter is cognizable and facts
are alleged which establish infringement of appellants' rights as a result of
state legislative action departing from a federal constitutional standard, the
court will not proceed because the matter is considered unsuited to judicial
inquiry or adjustment.
We treat the first ground of dismissal as "lack of
jurisdiction of the subject matter." The second we consider to result in a
failure to state a justiciable cause of action.
The District Court's dismissal order recited that it was
issued in conformity with the court's per curiam
opinion. The opinion reveals that the court rested its dismissal upon lack of
subject-matter jurisdiction and lack of a justiciable cause of action without
attempting to distinguish between these grounds. After noting that the
plaintiffs challenged the existing legislative apportionment in Tennessee under
the Due Process and Equal Protection Clauses, and summarizing the supporting
allegations and the relief requested, the court stated that
"The action is presently
before the Court upon the defendants' motion to dismiss predicated upon three
[369 U.S. 186, 197] grounds: first,
that the Court lacks jurisdiction of the subject matter; second, that the
complaints fail to state a claim upon which relief can be granted; and third,
that indispensable party defendants are not before the Court." 179 F.
Supp., at 826.
The court proceeded to explain its action as turning on the
case's presenting a "question of the distribution of political strength
for legislative purposes." For,
"From a review of [numerous Supreme Court] . . .
decisions there can be no doubt that the federal rule, as enunciated and applied
by the Supreme Court, is that the federal courts, whether from a lack of
jurisdiction or from the inappropriateness of the subject matter for judicial
consideration, will not intervene in cases of this type to compel legislative
reapportionment." 179 F. Supp., at 826.
The court went on to express doubts as to the feasibility of
the various possible remedies sought by the plaintiffs. 179 F. Supp., at
827-828. Then it made clear that its dismissal reflected a view not of doubt
that violation of constitutional rights was alleged, but of a court's impotence
to correct that violation:
"With the plaintiffs' argument that the legislature of
Tennessee is guilty of a clear violation of the state constitution and of the
rights of the plaintiffs the Court entirely agrees. It also agrees that the
evil is a serious one which should be corrected without further delay. But even
so the remedy in this situation clearly does not lie with the courts. It has
long been recognized and is accepted doctrine that there are indeed some rights
guaranteed by the Constitution for the violation of which the courts cannot
give redress." 179 F. Supp., at 828.
In light of the District Court's treatment of the case, we
hold today only (a) that the court possessed jurisdiction of the subject
matter; (b) that a justiciable cause of [369 U.S. 186, 198] action is stated upon which appellants would
be entitled to appropriate relief; and (c) because appellees raise the issue
before this Court, that the appellants have standing to challenge the Tennessee
apportionment statutes. 16 Beyond noting that we have no cause at this stage to
doubt the District Court will be able to fashion relief if violations of
constitutional rights are found, it is improper now to consider what remedy
would be most appropriate if appellants prevail at the trial.
II.
JURISDICTION OF THE
SUBJECT MATTER.
The District Court was uncertain whether our cases
withholding federal judicial relief rested upon a lack of federal jurisdiction
or upon the inappropriateness of the subject matter for judicial consideration
- what we have designated "nonjusticiability."
The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly
and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to
the point of deciding whether the duty asserted can be judicially identified
and its breach judicially determined, and whether protection for the right
asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not "arise
under" the Federal Constitution, laws or treaties (or fall within one of
the other enumerated categories of Art. III, 2), or is not a "case or
controversy" within the meaning of that section; or the cause is not one
described by any jurisdictional statute. Our conclusion, see pp. 208-237.
infra, that this cause presents no nonjusticiable
"political question" settles the only possible doubt that it is a
case or controversy. Under the present heading of "Jurisdiction [369 U.S.
186, 199] of the Subject Matter"
we hold only that the matter set forth in the complaint does arise under the
Constitution and is within 28 U.S.C. 1343.
Article III, 2, of the Federal Constitution provides that
"The judicial Power shall extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority . . . ."
It is clear that the cause of action is one which "arises under" the
Federal Constitution. The complaint alleges that the 1901 statute effects an
apportionment that deprives the appellants of the equal protection of the laws
in violation of the Fourteenth Amendment. Dismissal of the complaint upon the
ground of lack of jurisdiction of the subject matter would, therefore, be
justified only if that claim were "so attenuated and unsubstantial as to
be absolutely devoid of merit," Newburyport Water Co. v. Newburyport, 193
U.S. 561, 579 , or "frivolous," Bell v.
Hood, 327 U.S. 678, 683 . 17 That the claim is unsubstantial must be "very
plain." Hart v. Keith Vaudeville Exchange, 262 U.S. 271, 274 . Since the District Court obviously and correctly did
not deem the asserted federal constitutional claim unsubstantial and frivolous,
it should not have dismissed the complaint for want of jurisdiction of the
subject matter. And of course no further consideration of the merits of the
claim is relevant to a determination of the court's jurisdiction of the subject
matter. We said in an earlier voting case from Tennessee: "It is obvious .
. . that the court, in dismissing for want of jurisdiction, was controlled by
what it deemed to be the want of merit in the averments which were made in the
complaint as to the violation of the Federal right. But as the very nature of
the controversy was Federal, and, therefore, [369 U.S. 186, 200] jurisdiction existed, whilst the opinion of
the court as to the want of merit in the cause of action might have furnished
ground for dismissing for that reason, it afforded no sufficient ground for
deciding that the action was not one arising under the Constitution and laws of
the United States." Swafford v. Templeton, 185 U.S. 487, 493 . "For it is well settled that the failure to state
a proper cause of action calls for a judgment on the merits and not for a
dismissal for want of jurisdiction." Bell v. Hood, 327 U.S. 678, 682 . See also Binderup v. Pathe Exchange, 263 U.S. 291, 305 -308.
Since the complaint plainly sets forth a case arising under
the Constitution, the subject matter is within the federal judicial power
defined in Art. III, 2, and so within the power of Congress to assign to the
jurisdiction of the District Courts. Congress has exercised that power in 28
U.S.C. 1343 (3):
"The district courts shall
have original jurisdiction of any civil action authorized by law 18 to be
commenced by any person . . . [t]o redress the deprivation, under color of any
State law, statute, ordinance, regulation, custom or usage, of any right,
privilege or immunity secured by the Constitution of the United States . . . ." 19
[369 U.S. 186, 201]
An unbroken line of our precedents sustains the federal
courts' jurisdiction of the subject matter of federal constitutional claims of
this nature. The first cases involved the redistricting of States for the
purpose of electing Representatives to the Federal Congress. When the Ohio
Supreme Court sustained Ohio legislation against an attack for repugnancy to
Art. I, 4, of the Federal Constitution, we affirmed on the merits and expressly
refused to dismiss for want of jurisdiction "In view . . . of the
subject-matter of the controversy and the Federal characteristics which inhere
in it . . . ." Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 570 .
When the Minnesota Supreme Court affirmed the dismissal of a suit to enjoin the
Secretary of State of Minnesota from acting under Minnesota redistricting
legislation, we reviewed the constitutional merits of the legislation and
reversed the State Supreme Court. Smiley v. Holm, 285 U.S. 355
. And see companion cases from the New York Court of Appeals and the
Missouri Supreme Court, Koenig v. Flynn, 285 U.S. 375 ;
Carroll v. Becker, 285 U.S. 380 . When a three-judge District Court, exercising
jurisdiction under the predecessor of 28 U.S.C. 1343 (3), permanently enjoined
officers of the State of Mississippi from conducting an election of
Representatives under a Mississippi redistricting act, we reviewed the federal
questions on the merits and reversed the District Court. Wood v. Broom, 287
U.S. 1 , reversing 1 F. Supp. 134. A similar decree of
a District Court, exercising jurisdiction under the same statute, concerning a
Kentucky redistricting act, was [369 U.S. 186, 202] reviewed and the decree reversed. Mahan v. Hume,
287 U.S. 575 , reversing 1 F. Supp. 142. 20
The appellees refer to Colegrove
v. Green, 328 U.S. 549 , as authority that the
District Court lacked jurisdiction of the subject matter. Appellees misconceive
the holding of that case. The holding was precisely contrary to their reading
of it. Seven members of the Court participated in the decision. Unlike many
other cases in this field which have assumed without discussion that there was
jurisdiction, all three opinions filed in Colegrove
discussed the question. Two of the opinions expressing the views of four of the
Justices, a majority, flatly held that there was jurisdiction of the subject
matter. MR. JUSTICE BLACK joined by MR. JUSTICE DOUGLAS and Mr. Justice Murphy
stated: "It is my judgment that the District Court had jurisdiction . .
.," citing the predecessor of 28 U.S.C. 1343 (3), and Bell v. Hood, supra.
328 U.S., at 568 . Mr. Justice Rutledge, writing
separately, expressed agreement with this conclusion. 328 U.S., at 564 , 565, n. 2. Indeed, it is even questionable that the
opinion of MR. JUSTICE FRANKFURTER, joined by Justices Reed and Burton, doubted
jurisdiction of the subject matter. Such doubt would have been inconsistent
with the professed willingness to turn the decision on either the majority or
concurring views in Wood v. Broom, supra. 328 U.S., at
551.
Several subsequent cases similar to Colegrove
have been decided by the Court in summary per curiam
statements. None was dismissed for want of jurisdiction of the subject matter.
Cook v. Fortson, 329 U.S. 675 ; Turman
v. [369 U.S. 186, 203] Duckworth,
ibid.; Colegrove v. Barrett, 330 U.S. 804 ; 21
Tedesco v. Board of Supervisors, 339 U.S. 940 ; Remmey
v. Smith, 342 U.S. 916 ; Cox v. Peters, 342 U.S. 936 ; Anderson v. Jordan, 343
U.S. 912 ; Kidd v. McCanless, 352 U.S. 920 ; Radford
v. Gary, 352 U.S. 991 ; Hartsfield v. Sloan, 357 U.S. 916 ; Matthews v.
Handley, 361 U.S. 127 . 22
Two cases decided with opinions after Colegrove
likewise plainly imply that the subject matter of this suit is within District
Court jurisdiction. In MacDougall v. Green, 335 U.S. 281 ,
the District Court dismissed for want of jurisdiction, which had been invoked
under 28 U.S.C. 1343 (3), a suit to enjoin enforcement of the requirement that
nominees for state-wide elections be supported by a petition signed by a
minimum number of persons from at least 50 of the State's 102 counties. This
Court's disagreement with that action is clear since the Court affirmed the
judgment after a review of the merits and concluded that the particular claim
there was without merit. In South v. Peters, 339 U.S. 276 ,
we affirmed the dismissal of an attack on the Georgia "county unit"
system but founded our action on a ground that plainly would not have been
reached if the lower court lacked jurisdiction of the subject matter, which
allegedly existed under 28 U.S.C. 1343 (3). The express words of our holding
were that "Federal courts consistently refuse to exercise their equity
powers in cases posing [369 U.S. 186, 204]
political issues arising from a state's geographical distribution of
electoral strength among its political subdivisions." 339 U.S., at 277 .
We hold that the District Court has jurisdiction of the
subject matter of the federal constitutional claim asserted in the complaint.
III.
STANDING.
A federal court cannot "pronounce any statute, either
of a State or of the United States, void, because irreconcilable with the
Constitution, except as it is called upon to adjudge the legal rights of
litigants in actual controversies." Liverpool Steamship Co. v.
Commissioners of Emigration, 113 U.S. 33, 39 . Have
the appellants alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult
constitutional questions? This is the gist of the question of standing. It is,
of course, a question of federal law.
The complaint was filed by residents of Davidson, Hamilton,
Knox, Montgomery, and Shelby Counties. Each is a person allegedly qualified to
vote for members of the General Assembly representing his county. 23 These
appellants sued "on their own behalf and on behalf of all qualified voters
of their respective counties, and further, on behalf of all voters of the State
of Tennessee who [369 U.S. 186, 205]
are similarly situated . . . ." 24 The appellees are the Tennessee
Secretary of State, Attorney General, Coordinator of Elections, and members of
the State Board of Elections; the members of the State Board are sued in their
own right and also as representatives of the County Election Commissioners whom
they appoint. 25 [369
U.S. 186, 206]
We hold that the appellants do have standing to maintain
this suit. Our decisions plainly support this conclusion. Many of the cases
have assumed rather than articulated the premise in deciding the merits of
similar claims. 26 And Colegrove v. Green, supra,
squarely held that voters who allege facts showing disadvantage to themselves
as individuals have standing to sue. 27 A number [369 U.S. 186, 207] of cases decided after Colegrove
recognized the standing of the voters there involved to bring those actions. 28
These appellants seek relief in order to protect or
vindicate an interest of their own, and of those similarly situated. Their
constitutional claim is, in substance, that the 1901 statute constitutes
arbitrary and capricious state action, offensive to the Fourteenth Amendment in
its irrational disregard of the standard of apportionment prescribed by the
State's Constitution or of any standard, effecting a gross disproportion of
representation to voting population. The injury which appellants assert is that
this classification disfavors the voters in the counties in which they reside,
placing them in a position of constitutionally unjustifiable inequality
vis-a-vis voters [369 U.S. 186, 208] in
irrationally favored counties. A citizen's right to a vote free of arbitrary
impairment by state action has been judicially recognized as a right secured by
the Constitution, when such impairment resulted from dilution by a false tally,
cf. United States v. Classic, 313 U.S. 299 ; or by a
refusal to count votes from arbitrarily selected precincts, cf. United States
v. Mosley, 238 U.S. 383 , or by a stuffing of the ballot box, cf. Ex parte Siebold, 100 U.S. 371 ; United States v. Saylor, 322 U.S.
385 .
It would not be necessary to decide whether appellants'
allegations of impairment of their votes by the 1901 apportionment will,
ultimately, entitle them to any relief, in order to hold that they have
standing to seek it. If such impairment does produce a legally cognizable
injury, they are among those who have sustained it. They are asserting "a
plain, direct and adequate interest in maintaining the effectiveness of their
votes," Coleman v. Miller, 307 U.S., at 438 , not
merely a claim of "the right, possessed by every citizen, to require that
the Government be administered according to law . . . ." Fairchild v.
Hughes, 258 U.S. 126, 129 ; compare Leser v. Garnett, 258 U.S. 130 . They are entitled to a
hearing and to the District Court's decision on their claims. "The very
essence of civil liberty certainly consists in the right of every individual to
claim the protection of the laws, whenever he receives an injury." Marbury
v. Madison, 1 Cranch 137, 163.
IV.
JUSTICIABILITY.
In holding that the subject matter of this suit was not
justiciable, the District Court relied on Colegrove
v. Green, supra, and subsequent per curiam cases. 29
The [369 U.S. 186, 209] court stated:
"From a review of these decisions there can be no doubt that the federal
rule . . . is that the federal courts . . . will not intervene in cases of this
type to compel legislative reapportionment." 179 F. Supp., at 826. We
understand the District Court to have read the cited cases as compelling the
conclusion that since the appellants sought to have a legislative apportionment
held unconstitutional, their suit presented a "political question"
and was therefore nonjusticiable. We hold that this
challenge to an apportionment presents no nonjusticiable
"political question." The cited cases do not hold the contrary.
Of course the mere fact that the suit seeks protection of a
political right does not mean it presents a political question. Such an
objection "is little more than a play upon words." Nixon v. Herndon,
273 U.S. 536, 540 . Rather, it is argued that
apportionment cases, whatever the actual wording of the complaint, can involve
no federal constitutional right except one resting on the guaranty of a
republican form of government, 30 and that complaints based on that clause have
been held to present political questions which are nonjusticiable.
We hold that the claim pleaded here neither rests upon nor
implicates the Guaranty Clause and that its justiciability
is therefore not foreclosed by our decisions of cases involving that clause.
The District Court misinterpreted Colegrove v. Green
and other decisions of this Court on which it relied. Appellants' claim that
they are being denied equal protection is justiciable, and if [369 U.S. 186,
210] "discrimination is
sufficiently shown, the right to relief under the equal protection clause is
not diminished by the fact that the discrimination relates to political rights."
Snowden v. Hughes, 321 U.S. 1, 11 . To show why we
reject the argument based on the Guaranty Clause, we must examine the
authorities under it. But because there appears to be some uncertainty as to
why those cases did present political questions, and specifically as to whether
this apportionment case is like those cases, we deem it necessary first to
consider the contours of the "political question" doctrine.
Our discussion, even at the price of extending this opinion,
requires review of a number of political question cases, in order to expose the
attributes of the doctrine - attributes which, in various settings, diverge,
combine, appear, and disappear in seeming disorderliness. Since that review is
undertaken solely to demonstrate that neither singly nor collectively do these
cases support a conclusion that this apportionment case is nonjusticiable,
we of course do not explore their implications in other contexts. That review
reveals that in the Guaranty Clause cases and in the other "political
question" cases, it is the relationship between the judiciary and the
coordinate branches of the Federal Government, and not the federal judiciary's
relationship to the States, which gives rise to the "political
question."
We have said that "In determining whether a question
falls within [the political question] category, the approriateness
under our system of government of attributing finality to the action of the
political departments and also the lack of satisfactory criteria for a judicial
determination are dominant considerations." Coleman v. Miller, 307 U.S.
433, 454 -455. The nonjusticiability of a political
question is primarily a function of the separation of powers. Much confusion
results from the capacity of the "political question" label to
obscure the need for [369 U.S. 186, 211]
case-by-case inquiry. Deciding whether a matter has in any measure been
committed by the Constitution to another branch of government, or whether the
action of that branch exceeds whatever authority has been committed, is itself
a delicate exercise in constitutional interpretation, and is a responsibility
of this Court as ultimate interpreter of the Constitution. To demonstrate this
requires no less than to analyze representative cases and to infer from them
the analytical threads that make up the political question doctrine. We shall
then show that none of those threads catches this case.
Foreign relations:
There are sweeping statements to the effect that all questions touching foreign
relations are political questions. 31 Not only does resolution of such issues
frequently turn on standards that defy judicial application, or involve the
exercise of a discretion demonstrably committed to the executive or
legislature; 32 but many such questions uniquely demand single-voiced statement
of the Government's views. 33 Yet it is error to suppose that every case or
controversy which touches foreign relations lies beyond judicial cognizance.
Our cases in this field seem invariably to show a discriminating analysis of
the particular question posed, in terms of the history of its management by the
political branches, of its susceptibility to judicial handling in the light of
its nature and posture in the specific case, and of the possible consequences
[369 U.S. 186, 212] of judicial action.
For example, though a court will not ordinarily inquire whether a treaty has
been terminated, since on that question "governmental action . . . must be
regarded as of controlling importance," if there has been no conclusive
"governmental action" then a court can construe a treaty and may find
it provides the answer. Compare Terlinden v. Ames,
184 U.S. 270, 285 , with Society for the Propagation
of the Gospel in Foreign Parts v. New Haven, 8 Wheat. 464, 492-495. 34 Though a
court will not undertake to construe a treaty in a manner inconsistent with a subsequent
federal statute, no similar hesitancy obtains if the asserted clash is with
state law. Compare Whitney v. Robertson; 124 U.S. 190 ,
with Kolovrat v. Oregon, 366 U.S. 187 .
While recognition of foreign governments so strongly defies
judicial treatment that without executive recognition a foreign state has been
called "a republic of whose existence we know nothing," 35 and the
judiciary ordinarily follows the executive as to which nation has sovereignty
over disputed territory, 36 once sovereignty over an area is politically
determined and declared, courts may examine the resulting status and decide
independently whether a statute applies to that area. 37 Similarly,
recognition of belligerency abroad is an executive responsibility, but if the
executive proclamations fall short of an explicit answer, a court may construe
them seeking, for example, to determine whether the situation is such that
statutes designed to assure American neutrality have [369 U.S. 186, 213] become operative. The Three Friends, 166
U.S. 1, 63 , 66. Still again, though it is the
executive that determines a person's status as representative of a foreign
government, Ex parte Hitz, 111 U.S. 766 , the
executive's statements will be construed where necessary to determine the court's
jurisdiction, In re Baiz, 135 U.S. 403 . Similar
judicial action in the absence of a recognizedly
authoritative executive declaration occurs in cases involving the immunity from
seizure of vessels owned by friendly foreign governments. Compare Ex parte Peru,
318 U.S. 578 , with Mexico v. Hoffman, 324 U.S. 30, 34
-35.
Dates of duration of
hostilities: Though it has been stated broadly that "the power which
declared the necessity is the power to declare its cessation, and what the
cessation requires," Commercial Trust Co. v. Miller, 262 U.S. 51, 57 , here too analysis reveals isolable reasons for the
presence of political questions, underlying this Court's refusal to review the
political departments' determination of when or whether a war has ended.
Dominant is the need for finality in the political determination, for emergency's
nature demands "A prompt and unhesitating obedience," Martin v. Mott,
12 Wheat. 19, 30 (calling up of militia). Moreover, "the cessation of
hostilities does not necessarily end the war power. It was stated in Hamilton
v. Kentucky Distilleries & W. Co., 251 U.S. 146, 161 ,
that the war power includes the power `to remedy the evils which have arisen
from its rise and progress' and continues during that emergency. Stewart v.
Kahn, 11 Wall. 493, 507." Fleming v. Mohawk Wrecking Co., 331 U.S. 111, 116 . But deference rests on reason, not habit. 38 The
question in a particular case may not seriously implicate considerations of
finality - e. g., a public program of importance [369 U.S. 186, 214] (rent control) yet
not central to the emergency effort. 39 Further, clearly definable criteria for
decision may be available. In such case the political question barrier falls
away: "[A] Court is not at liberty to shut its eyes to an obvious mistake,
when the validity of the law depends upon the truth of what is declared. . . . [It can] inquire whether the exigency still existed
upon which the continued operation of the law depended." Chastleton Corp. v. Sinclair, 264 U.S. 543, 547 -548. 40
Compare Woods v. Miller Co., 333 U.S. 138 . On the
other hand, even in private litigation which directly implicates no feature of
separation of powers, lack of judicially discoverable standards and the drive
for even-handed application may impel reference to the political departments'
determination of dates of hostilities' beginning and ending. The Protector, 12
Wall. 700.
Validity of
enactments: In Coleman v. Miller, supra, this Court held that the questions
of how long a proposed amendment to the Federal Constitution remained open to
ratification, and what effect a prior rejection had on a subsequent
ratification, were committed to congressional resolution and involved criteria
of decision that necessarily escaped the judicial grasp. 41 Similar
considerations apply to the enacting process: "The respect due to coequal
and independent departments," and the need for finality and certainty
about the status of a statute contribute to judicial reluctance to inquire
whether, as passed, it complied with all requisite formalities. Field v. Clark,
143 U.S. 649, 672 , 676-677; see Leser
v. Garnett, 258 U.S. 130, 137 . But it is not true that courts will never delve
[369 U.S. 186, 215] into a
legislature's records upon such a quest: If the enrolled statute lacks an
effective date, a court will not hesitate to seek it in the legislative journals
in order to preserve the enactment. Gardner v. The Collector, 6 Wall. 499. The
political question doctrine, a tool for maintenance of governmental order, will
not be so applied as to promote only disorder.
The status of Indian
tribes: This Court's deference to the political departments in determining
whether Indians are recognized as a tribe, while it reflects familiar
attributes of political questions, 42 United States v. Holliday, 3 Wall. 407,
419, also has a unique element in that "the relation of the Indians to the
United States is marked by peculiar and cardinal distinctions which exist no where else. . . . [The Indians
are] domestic dependent nations . . . in a state of pupilage. Their relation to
the United States resembles that of a ward to his guardian." The Cherokee
Nation v. Georgia, 5 Pet. 1, 16, 17. 43 Yet, here too, there is no blanket
rule. While [369 U.S. 186, 216]
"`It is for [Congress] . . ., and not for the courts, to determine
when the true interests of the Indian require his release from [the] condition
of tutelage' . . ., it is not meant by this that Congress may bring a community
or body of people within the range of this power by arbitrarily calling them an
Indian tribe . . . ." United States v. Sandoval,
231 U.S. 28, 46 . Able to discern what is
"distinctly Indian," ibid., the courts will strike down [369 U.S.
186, 217] any heedless extension of
that label. They will not stand impotent before an obvious instance of a
manifestly unauthorized exercise of power.
It is apparent that several formulations which vary slightly
according to the settings in which the questions arise may describe a political
question, although each has one or more elements which identify it as
essentially a function of the separation of powers. Prominent
on the surface of any case held to involve a political question is found 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; 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.
Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. The doctrine of which we treat is one of "political questions," not one of "political cases." The courts cannot reject as "no law suit" a bona fide controversy as to whether some action denominated "political" exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing. . . .