CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #5
Political Questions
- Three core questions with
respect to any constitutional issue presented to a federal court (cf.
the famous paragraph in Baker v. Carr , middle p. 104):
- TDC
("textually demonstrable commitment"): does the text of the
constitution demonstrably give the power to decide this issue to a branch
of the federal government other than the judiciary?
- JMS
("judicially manageable standards"): does the constitution
provide standards for deciding the question which can be effectively
applied by a court?
- IP
("institutional politics") [my term for "prudential
concerns"]: would judicial resolution of the issue involve undue
interference with or embarrassment to the functioning of another branch
of the federal government?
- Compare:
- Luther v. Borden
(1842), discussed middle p. 104: legitimacy of a
state government as not in republican form, under the Guaranty Clause (Art.
IV §4): not justiciable, both TDC
("the United
States") and JMS (what is a
"Republican Form of Gov't"?)
- Baker v. Carr
(1964), pp. 102-4: apportionment of state legislature as denying the
equal right to vote, under Equal Protection clause (14 th A.), justiciable
- POWELL V. McCORMACK,
p. 105 (1969): House denies a seat to a Congressman-elect
- Art. I §5:
"Each House shall be the Judge of the ... Qualifications of its
Members..."
- On what ground was
Powell excluded? Is that ground given in the constitution?
- Art. I §2: age,
citizenship, residence -- is this an exclusive list?
- Art. I §5 par. 2:
misconduct -- if it warrants expulsion, why not exclusion?
- X is elected but
denied a seat, by a full House vote, on the sole ground that he is not a
resident of the district from which he was elected. X sues to gain his
seat, alleging that the evidence presented at the House hearing clearly
shows that he was a resident of the district. What ruling?
- NIXON V. U.S., p. 107 (1993):
is this a TDC case, or a JMS case?
- GOLDWATER V. CARTER, p. 112
(1979): validity of a treaty termination
- Does the claim present
a political question? (Rehnquist)
- Is it ripe for
decision? (Powell)
- Henkin,
n. 4 p. 118: does any of these cases involve
anything more than straight-forward interpretation of the constitution on
the issue of Who Decides This Question?
- Justiciability
issues in the Amendment Process, pp. 119-123
- Convention method of
proposing amendments
- Ratification
- Is there a time
limit? -- 27th Amendment!
- What happens when a
state withdraws its ratification?
- Effect of Congress's
decision on any of these questions