declared Chief Justice Taney. "And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, * * *; nor has it the right to determine what political privileges the citizens of a State are ent.i.tled to, unless there is an established const.i.tution or law to govern its decision."[203] The Court went on to hold that such matters as the guaranty to a State of a republican form of government and of protection against invasion and domestic violence are political questions committed to Congress and the President whose decisions are binding upon the courts.[204]
Exemplifications of the Doctrine
From this case and later applications of it, a political question may be defined as a question relating to the possession of political power, of sovereignty, of government, the determination of which is vested in Congress and the President whose decisions are conclusive upon the courts. The more common cla.s.sifications[205] of cases involving political questions are: (1) those which raise the issue of what proof is required that a statute has been enacted,[206] or a const.i.tutional amendment ratified;[207] (2) questions arising out of the conduct of foreign relations;[208] (3) the termination of wars,[209] or rebellions;[210] the questions of what const.i.tutes a republican form of government,[211] and the right of a state to protection against invasion or domestic violence;[212] questions arising out of political actions of States in determining the mode of choosing presidential electors,[213]
State officials,[214] and reapportionment of districts for Congressional representation;[215] and suits brought by States to test their political and so-called sovereign rights.[216] The leading case on the evidence required to prove the enactment of a statute is Field _v._ Clark,[217]
where it was held that the enactment of a statute is conclusively proved by the enrolled act signed by the speaker of the House of Representatives and the President of the Senate, and the Court will not look beyond these formalities of record by examining the journals of the two houses of Congress or other records. Similarly, the Court has held that the efficacy of the ratification of a proposed const.i.tutional amendment in the light of previous rejection or subsequent attempted withdrawal is political in nature, pertaining to the political departments, with the ultimate authority in Congress by virtue of its control over the promulgation of the adoption of amendments.[218]
Simultaneously, the Court ruled that the question of the lapse of a reasonable length of time between proposal and ratification is for Congress to determine and not the Court.[219]
Recent Cases
A few cases will suffice to ill.u.s.trate the application of the concept of political questions since 1938. In Colegrove _v._ Green,[220] a declaratory judgment was sought to have the division of Illinois into Congressional districts declared invalid as a violation of the equal protection of the laws. Justice Frankfurter in announcing the judgment of the Court, in an opinion in which Justices Reed and Burton joined, was of the opinion that dismissal of the suit was required both by the decision in Wood _v._ Broom,[221] that there is no federal requirement that Congressional districts shall contain as nearly as practicable an equal number of inhabitants, and because the question was not justiciable. Justice Rutledge thought that Smiley _v._ Holm[222]
indicated that the question was justiciable but concurred in the result on the ground that the case was one in which the courts should decline to exercise jurisdiction.[223] Justice Black in a dissent supported by Justices Douglas and Murphy thought that the case was justiciable and would have invalidated the reapportionment, leaving the State free to elect all of its representatives from the State at large.[224] In MacDougall _v._ Green,[225] however, the Court seemed to regard as justiciable the question of the validity of the provision of the Illinois Election Code requiring that a pet.i.tion for the nomination of candidates of a new political party be signed by 25,000 voters including at least 200 from each of at least 50 of the States" 102 counties, for it went on to sustain the provision in a brief _per curiam_ opinion. In Ludecke _v._ Watkins,[226] the Court held, as it had earlier, that the determination of the cessation of a state of war is a question for the political branch of the Government and not for the courts. Nevertheless, the Court actually found a state of war to exist between the United States and Germany after the end of hostilities, and ruled that an enemy alien is not ent.i.tled to judicial review in a deportation proceeding.
Very recently in South _v._ Peters,[227] the Court refused to pa.s.s upon the validity of the county unit scheme used in Georgia for the nomination of candidates in primary elections.
ADVISORY OPINIONS
Perhaps no portion of Const.i.tutional Law pertaining to the judiciary has evoked such unanimity as the rule that the federal courts will not render advisory opinions. In 1793 the Supreme Court refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution. After convening the Court which considered the request, Chief Justice Jay replied to President Washington concerning the functions of the three departments of government: "These being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Const.i.tution to the President, of calling on the heads of departments for opinions, seems to have been _purposely_ as well as expressly united to the _Executive_ departments."[228] Since 1793 the Court has frequently reiterated the early view that the federal courts organized under article III cannot render advisory opinions or that the rendition of advisory opinions is not a part of the judicial power of the United States.[229]
Even in the absence of this early precedent, the rule that const.i.tutional courts will render no advisory opinions would have logically emerged from the rule subsequently developed, that const.i.tutional courts can only decide cases and controversies in which an essential element is a final and binding judgment on the parties. As stated by Justice Jackson, when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere recommendation to the President for his final action, "To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form--advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President"s exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Const.i.tutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action."[230] The early refusal of the Court to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties,[231] or where the judgment of the Court was subject to later review or action by the executive or legislative branches of government,[232] or where the issues involved were abstract or contingent.[233]
DECLARATORY JUDGMENTS
The rigid emphasis placed upon such elements of the judicial power as finality of judgment and an award of execution in United States _v._ Ferreira,[234] Gordon _v._ United States[235], and Liberty Warehouse _v._ Grannis,[236] coupled with the equally rigid emphasis upon adverse parties and real interests as essential elements of a case or controversy in Muskrat _v._ United States,[237] created serious doubts concerning the validity of a proposed federal declaratory judgment act.
These were dispelled to some extent by Fidelity National Bank _v._ Swope,[238] which held that an award of execution is not an essential part of every judgment and contained general statements in opposition to the principles of the Grannis and Willing cases. Then in 1933 the Supreme Court entertained an appeal from a declaratory judgment rendered by the Tennessee Courts in Nashville, C. & St. L.R. Co. _v._ Wallace,[239] and in doing so declared that the Const.i.tution does not require that a case or controversy be presented by traditional forms of procedure, involving only traditional remedies, and that article III defined and limited judicial power not the particular method by which that power may be invoked or exercised. The Federal Declaratory Judgments Act of 1934 was in due course upheld in Aetna Life Insurance Co. _v._ Haworth,[240] as a valid exercise of Congressional power over the practice and procedure of federal courts which includes the power to create and improve as well as to abolish or restrict.
The Declaratory Judgment Act of 1934
The act of 1934 was carefully drawn, and provided that: "In cases of actual controversy the courts of the United States shall have power * * * to declare rights and other legal relations of any interested party pet.i.tioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such." The other two sections provided for further relief whenever necessary and proper and for jury trials of matters of fact.[241] In the first case involving private parties exclusively to arise under the act, Aetna Life Insurance Co. _v._ Haworth,[242] the Court held that a declaration should have been issued by the district court, although it reiterated with the usual emphasis the necessity of adverse parties, a justiciable controversy and specific relief. In the Ashwander case it approved the refusal of the lower Court to issue a declaration generally on the const.i.tutionality of the Tennessee Valley Authority, because the act of 1934 applied only to "cases of actual controversy." In the same case the Court itself refused to pa.s.s upon the navigability of the New and Kanawha rivers and the authority of the Federal Power Commission even at the request of the United States, on the ground that the bill did no more than state a difference of opinion between the United States and West Virginia to which the judicial power did not extend.[243]
Similarly, in Electric Bond & Share Co. _v._ Securities and Exchange Commission,[244] the Court refused to decide any const.i.tutional issues arising out of the Public Utility Holding Company Act of 1935 except the registration provisions because the cross bill in which the company had asked for a declaration that the whole act was unconst.i.tutional was regarded as presenting a variety of hypothetical questions that might never become real.
The "Case" or "Controversy" Test in Declaratory Judgment Proceedings
The insistence of the Court upon the rule that "the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit,"[245] and the fact that many actions for a declaration of rights have involved the validity of legislation, where the Court is even more insistent upon the essentials of a case, have done much to limit the use of the declaratory judgment. There are, nevertheless, a number of cases, some of which involved const.i.tutional issues, in which a declaratory judgment has been rendered. Among these are Currin _v._ Wallace,[246] where tobacco warehous.e.m.e.n and auctioneers contested the validity of the Tobacco Inspection Act under which the Secretary of Agriculture had already designated a tobacco market for inspection and grading; Perkins _v._ Elg,[247] where a natural-born citizen of naturalized parents who left the country during her minority sought to establish her status as a citizen; Maryland Casualty Co. _v._ Pacific Coal and Oil Co.,[248] where a liability insurer sought to establish his lack of liability in an automobile collision case; and Aetna Life Insurance Co. _v._ Haworth,[249] where a declaration was sought under the disability benefit clauses of an insurance policy. As stated by Justice Douglas for the Court in the Maryland Casualty case: "The difference between an abstract question and a "controversy" contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circ.u.mstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."[250] It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even, then, however, the Court is under no compulsion to exercise its jurisdiction.[251]
Cases Arising Under the Const.i.tution, Laws and Treaties of the United States
DEFINITION
Cases arising under the Const.i.tution are cases which require an interpretation of the Const.i.tution for their correct decision.[252] They arise when a litigant claims an actual or threatened invasion of his const.i.tutional rights by the enforcement of some act of public authority, usually an act of Congress or of a State legislature, and asks for judicial relief. The clause furnishes the textual basis for the fountain-head of American Const.i.tutional Law, in the strict sense of the term, which fountain-head is Judicial Review, or the power and duty of the courts to pa.s.s upon the const.i.tutional validity of legislative acts which they are called upon to recognize and enforce in cases coming before them, and to declare void and refuse enforcement to such as do not accord with their own interpretation of the Const.i.tution.
JUDICIAL REVIEW
The supremacy clause clearly recognizes judicial review of State legislative acts in relation not only to the Const.i.tution, but also in relation to acts of Congress which are "in pursuance of the Const.i.tution," and in relation to "treaties made or which shall be made under the authority of the United States." These const.i.tute "the supreme law of the land," and "the judges in every State shall be bound thereby, anything in the Const.i.tution or laws of any State to the contrary notwithstanding." This provision was originally implemented by the famous twenty-fifth section of the Judiciary Act of 1789 which provided that final judgments or decrees of the highest courts of law or equity in the States in which a decision could be had, "where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Const.i.tution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the Const.i.tution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the t.i.tle, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Const.i.tution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, * * *"[253]
JUDICIAL REVIEW AND NATIONAL SUPREMACY
A quarter of a century after its enactment the validity of this section was challenged on States" Rights premises in Martin _v._ Hunter"s Lessee,[254] and seven years after that in Cohens _v._ Virginia.[255]
The States" Rights argument was substantially the same in both cases. It amounted to the contention that while the courts of Virginia were const.i.tutionally obliged to prefer "the supreme law of the land" as defined in the supremacy clause over conflicting State laws it was only by their own interpretation of the said supreme law that they, as the courts of a sovereign State, were bound. Furthermore, it was contended that cases did not "arise" under the Const.i.tution unless they were brought in the first instance by some one claiming such a right, from which it followed that "the judicial power of the United States" did not "extend" to such cases unless they were brought in the first instance in the courts of the United States. In answer to these arguments Chief Justice Marshall declared that: "A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Const.i.tution or a law of the United States, whenever its correct decision depends upon the construction of either."[256] Pa.s.sing then to broader considerations, he continued: "Let the nature and objects of our Union be considered; let the great fundamental principles, on which the fabric stands, be examined; and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the Court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction."[257]
JUDICIAL REVIEW OF ACTS OF CONGRESS
Judicial review of acts of Congress is not provided for in the Const.i.tution in such explicit terms as is judicial review of State legislation, but it is nevertheless fairly evident that its existence is a.s.sumed. In the first place, the term "cases arising under the Const.i.tution" is just as valid a textual basis for the one type of const.i.tutional case as for the other; and, in the second place, it is clearly indicated that acts of Congress are not "supreme law of the land" unless they are "in pursuance of the Const.i.tution," thus evoking a question which must be resolved in the first instance by State judges, when State legislation coming before them for enforcement is challenged in relation to "the supreme law of the land." Furthermore, most of the leading members of the Federal Convention are on record contemporaneously, though not always in the Convention itself, as accepting the idea.[258]
HAMILTON"S ARGUMENT
The argument for judicial review of acts of Congress was first elaborated in full by Alexander Hamilton in the Seventy-eighth Number of _The Federalist_ while the adoption of the Const.i.tution was pending.
Said Hamilton: "The interpretation of the laws is the proper and peculiar province of the courts. A const.i.tution is, in fact, and must be regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or in other words, the Const.i.tution ought to be preferred to the statute, the intention of the people to the intention of their [legislative]
agents."[259] It was also set forth as something commonly accepted by Justice Iredell in 1798 in Calder _v._ Bull[260] in the following words: "If any act of Congress, or of the Legislature of a state, violates those const.i.tutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case." And between these two formulations of the doctrine, the membership of the Supreme Court had given it their sanction first individually, then as a body. In Hayburn"s Case,[261] the Justices while on circuit court duty refused to administer the Invalid Pensions Act,[262] which authorized the circuit courts to dispose of pension applications subject to review by the Secretary of War and Congress on the ground that the federal courts could be a.s.signed only those functions such as are properly judicial and to be performed in a judicial manner. In Hylton _v._ United States,[263] a made case in which Congress appropriated money to pay counsel on both sides of the argument, the Court pa.s.sed on the const.i.tutionality of the carriage tax and sustained it as valid, and in so doing tacitly a.s.sumed that it had the power to review Congressional acts.
MARBURY _v._ MADISON
All the above developments were, however, only preparatory. Judicial review of acts of Congress was made Const.i.tutional Law, and thereby the cornerstone of American const.i.tutionalism, by the decision of the Supreme Court, speaking through Chief Justice Marshall in the famous case of Marbury _v._ Madison[264] decided in February, 1803. The facts of the case briefly stated are that Marbury had been appointed a justice of the peace in the District of Columbia by John Adams almost at the close of his administration, and John Marshall who was serving simultaneously as Secretary of State failed to deliver to Marbury his commission which had been signed before the new administration had begun. One of the first acts of Jefferson was his instruction to Secretary of State Madison to withhold commissions to office which remained undelivered. Thereupon Marbury sought to compel Madison to deliver the commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction and in pursuance of section 13 of the Judiciary Act of 1789[265] which prescribed the original jurisdiction of the Court and authorized it to issue writs of mandamus "in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."
Marshall"s Argument
In the portion of his opinion dealing with judicial review Marshall began his argument with the a.s.sumption that "the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness * * *" and, once established, these principles are fundamental. Second, the Government of the United States is limited in its powers by a written Const.i.tution. The Const.i.tution either "controls any legislative act repugnant to it; or, * * * the legislature may alter the Const.i.tution by an ordinary act." But the Const.i.tution is paramount law and written as such. "It is emphatically the province and duty of the judicial department to say what the law is. * * * If two laws conflict with each other, the courts must decide on the operation of each. * * * If, then, the courts are to regard the Const.i.tution, and the Const.i.tution is superior to any ordinary act of the legislature, the Const.i.tution, and not such ordinary act, must govern the case to which they both apply."
To declare otherwise, the Chief Justice concluded, would be subversive of the very foundation of all written const.i.tutions, would force the judges to close their eyes to the Const.i.tution, and would make the judicial oath "a solemn mockery."[266] The Court must therefore look into some portions of the Const.i.tution, and if they can open it at all, what part of it are they forbidden to read or obey? In conclusion the Chief Justice declared that the Const.i.tution is mentioned first in the supremacy clause and that "the particular phraseology of the Const.i.tution * * * confirms and strengthens the principle, supposed to be essential to all written const.i.tutions, that a law repugnant to the Const.i.tution is void; and that courts, as well as other departments, [of government] are bound by that instrument."[267]
Importance of Marbury _v._ Madison
The decision in Marbury _v._ Madison has never been disturbed, although it has often been criticized. Nor was its contemporary effect confined to the national field. From that time on judicial review by State courts of local legislation in relation to the local const.i.tutions made rapid progress and was securely established in all States by 1850 under the influence not only of Marbury _v._ Madison, but also of early principles of judicial review established in the circuit courts of the United States.[268]
LIMITS TO THE EXERCISE OF JUDICIAL REVIEW
Because judicial review is an outgrowth of the fiction that courts only declare what the law is in specific cases,[269] and are without will or discretion,[270] its exercise is surrounded by the inherent limitations of the judicial process and notably the necessity of a case or controversy between adverse litigants with a standing in court to present the issue of unconst.i.tutionality in which they are directly interested. The requisites to a case or controversy have been treated more extensively above, but it may be noted that the Supreme Court has repeatedly emphasized the necessity of "an honest and actual antagonistic a.s.sertion of rights by one individual against another,"[271] and its lack of power to supervise legislative functions in friendly proceedings, moot cases, or cases which present abstract issues.[272]
The Doctrine of "Strict Necessity"
But even when a case involving a const.i.tutional issue is presented, the Court has repeatedly stated that it will decide const.i.tutional questions only if strict necessity requires it to do so. Hence const.i.tutional issues will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied; nor if the record presents some other ground upon which to decide the case; nor at the instance of one who has availed himself of the benefit of a statute or who fails to show he is injured by its operation; nor if a construction of the statute is fairly possible by which the question may be fairly avoided.[273] Speaking of the policy of avoiding the decision of const.i.tutional issues except when necessary Justice Rutledge, speaking for the Court, declared in 1947: "The policy"s ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for const.i.tutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from const.i.tutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of const.i.tutional power concerning the scope of their authority; the necessity, if government is to function const.i.tutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of const.i.tutional adjudication in our system."[274]
The Doctrine of Political Questions