Section 2: Authorities on Political Jurisdiction

Courts may not involve themselves in any strictly political question:

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 (3^rd 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 people only.”

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 determine [506 U.S. 224, 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)]

“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 powers.

“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 987, 990.

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 663.

[Black’s Law Dictionary, Sixth Edition, pp. 1158-1159]

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 wisely made.

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 with arms.

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. 1.

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. 159.

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.

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 v. Payne, 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: 20   "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, 295]   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.

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   [ MORSE v. REPUBLICAN PARTY OF VIRGINIA, ___ U.S. ___ (1996) , 23]

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 question:

"[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards *278 for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] 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 powers.

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:

1. Has the issue been committed expressly by the Constitution to a coordinate political branch of the government?
2. Are there judicially discoverable and manageable standards for deciding the case?
3. Can the case be decided without some initial policy determination of a kind clearly for nonjudicial discretion.
4. Can the court decide the case independently without expressing lack of the respect due a coordinate branch of the government?
5. Is there an unusual need for unquestioning adherence to a political decision already made?
6. Is there a potentiality for embarrassment from multifarious decisions by different branches of the government on the same question?

Applying these criteria there are certain clear categories of cases in which the equity court will abstain on the grounds of a political question.

1. 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.
2. 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.
   
   In Lynch 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."
3. 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 (1898).

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