considerations that judges should not take into account.
, Martin H. Redish,
Judicial Reviewand the Political Question
, 79 N
. U. L. R
. 1031 (1985). Scholarly discussion continuesapace.
, Rachel E. Barkow,
More Supreme than Court? The Fall of the Political Question Doctrine
, 102 C
. L. R
. 237 (2002);
The Political Question Doctrine:Suggested Criteria
, 54 D
L.J. 1457 (2005); Richard F. Fallon, Jr.,
Judicially ManageableStandards and Constitutional Meaning
, 119 H
. L. R
. 1275 (2006). As you read the cases inthe remainder of this Chapter, consider whether the doctrine is more (or less) persuasivelyapplied when the case involves the structure of governance, as election-law issues do, as opposedto some other aspect of the substantive authority of the other branches (
, the foreign-affairs powers of the President).The political question doctrine has also been applied by state courts considering legalchallenges to the actions of other branches of the state government. To the extent they apply thedoctrine, some states borrow the criteria developed in federal courts. But on the whole, thedoctrine has been applied less robustly by many state courts, in part because state constitutionsare typically much longer and more detailed than the Federal Constitution, and seem to call for more judicial interpretation and application of those provisions. Since most state judges aresubject to periodic elections to attain or retain office, some have argued that this greater democratic accountability makes the doctrine less appropriate at the state level.
State Courts and the “Passive Virtues”: Rethinking the Judicial Function
, 114 H
. 1833 (2001) (advancing such an argument),
Christine M. Durham,
The Judicial Branch in State Government: Parables of Law, Politics, and Power
, 76 N.Y.U. L. R
. 1601(2001) (expressing skepticism of an activist role by state judiciaries).
James A. Gardner,
Strategy for Litigating Partisan Gerrymandering Claims
, 3 E
L.J. 643(2004) (arguing that claims barred by the political-question doctrine in federal court can be pursued in state court).
Article IV, § 4 of the U.S. Constitution states that “[t]he United States shall guarantee toevery State in this Union a Republican Form of Government.” Beginning with the canonicaldecision in
Luther v. Borden
, 48 U.S. (7 How.) 1 (1849), the Supreme Court has held that federalcourts cannot hear legal challenges to state governmental structures or processes on the groundthat they violate the Guarantee Clause.
involved a series of changes to the stateconstitution of Rhode Island, which resulted in controversy and confusion about the proper governmental authority in that state. The case came before the Court due to a challenge to asearch undertaken by a sheriff of the Rhode Island government. The challenger argued that thesearch was unlawful, since it was undertaken on behalf of a government that was not in arepublican form. The Court held that the challenge was non-justiciable, since it was up toCongress to enforce the Guarantee Clause. Among other things, the Court observed that it wasunclear how to determine whether or not a state had a republican form of government.While
has long stood for the proposition that Guarantee Clause challenges in federalcourt are barred by the political-question doctrine, that understanding has not prevented litigants,and the Court, from revisiting the issue, as the following cases indicate.2