Political Law, Legalistic Politics: A Recent History of the Political Question Doctrine

Abstract

The phrase question seems innocuous. This is partly because of familiarity. It is also because the three words are lined up in a reassuring sequence. Although has unruly and unsavory connotations, it is followed by the tame question. The phrase is concerned, not with political power or political dilemmas or political passions, but with those political issues that come rounded to an intellectual point, that are shaped into questions. And the last word, removes whatever sting remains. Suggestive of rules, predictability, and stodgy formalism, assimilates the political into the legal. In the brief space of three words, the phrase question funnels the noisy sounds of conflict into a staid category of law; it collapses the wide world-where aspirations, hatreds, and interests are in collision-into a small, identifiable arena. The boundaries to this arena mark the limits of the judicial function, but even as courts acknowledge the political, they subordinate it. To have a doctrine that defines where political decision making is appropriate, after all, is only to make an exception to a norm of judicial sovereignty over the fundamental issues called constitutional. My theme is that the political question doctrine is not innocuous. Like many dangerous things, it has been given a safe appearance and name. But what looks like a slight crack is a fault line. This doctrine, so frequently criticized and discounted, nevertheless has a tenacious hold on our jurisprudence. After two hundred years of growth and consolidation, the nation's judicial system is an imposing edifice built over a break that looks small but does not go away. Indeed, it is worth tracing some of the ways that jurists and scholars have minimized the of political questions because that idea turns out to be more subversive even as it is dismissed with greater certainty.