II.

The Colegrove doctrine, in the form in which repeated decisions have settled it, was not an innovation. It represents long judicial thought and experience. From its earliest opinions this Court has consistently recognized a class of controversies which do not lend themselves to judicial standards and judicial remedies. To classify the various instances as "political questions" is rather a form of stating this conclusion than revealing of analysis.10 Some of the cases so labelled have no relevance here. But from others emerge unifying considerations that are compelling.

1. The cases concerning war or foreign affairs, for example, are usually explained by the necessity of the country's speaking with one voice in such matters. While this concern alone undoubtedly accounts for many of the decisions," others do not fit the pattern. It would hardly embarrass the conduct of war were this Court to determine, in connection with private transactions between litigants, the date upon which war is to be deemed terminated. But the Court has refused to do so. See, e.g., The Protector, 12 Wall. 700; Brown v. Hiatts, 15 Wall. 177; Adger v. Alston, 15 Wall. 555; Williams v. Bruffy, 96 U.S. 176, 192193. It does not suffice to explain such cases as Ludecke v. Watkins, 335 U.S. 160-deferring to political determination the question of the duration of war for purposes of the Presidential power to deport alien enemies-that judicial intrusion would seriously impede the President's power effectively to protect the country's interests in time of war. Of course, this is true; but the precise issue presented is the duration of the time of war which demands the power. Cf. Martin v. Mott, 12 Wheat. 19; Lamar v. Browne, 92 U.S. 187, 193; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146; Kahn v. Anderson, 255 U.S. 1. And even for the purpose of determining the extent of congressional regulatory power over the tribes and dependent communities of Indians, it is ordinarily for Congress, not the Court, to determine whether or not a particular Indian group retains the characteristics constitutionally requisite to confer the power." E.g., United States v. Holliday, 3 Wall. 407; Tiger v. Western Investment Co., 221 U.S. 286; United States v. Sandoval, 231 U.S. 28. A controlling factor in such cases is that, decision respecting these kinds of complex matters of policy being traditionally committed not to courts but to the political agencies of government for determination by criteria of political expediency, there exists no standard ascertainable by settled judicial experience or process by reference to which a political decision affecting the question at issue between the parties can be judged. Where the question arises in the course of a litigation involving primarily the adjudication of other issues between the litigants, the Court accepts as a basis for adjudication the political departments' decision of it. But where its determination is the sole function to be served by the exercise of the judicial power, the Court will not entertain the action. See Chicago & Southern Air Lines, Inc., v. Waterman S.S. Corp., 333 U.S. 103. The dominant consideration is "the lack of satisfactory criteria for a judicial determination . . ." Mr. Chief Justice Hughes, for the Court, in Coleman v. Miller, 307 U.S. 433, 454–455. Compare United States v. Rogers, 4 How. 567, 572, with Worcester v. Georgia, 6 Pet. 515.13 This may be, like so many questions of law, a matter of degree. Question have arisen under the Constitution to which adjudication gives answer although the criteria for decision are less than unwavering bright lines. Often in these cases illumination was found in the federal structures established by, or the underlying presuppositions of, the Constitution. With respect to such questions, the

10 See Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 04. 45 et seq. (1961). 11 See, e.g., United States v. Palmer, 3 Wheat. 610, 634, 635: The Divina Pastora, 4 Wheat. 52: Villiams v. Suffolk Ins. Co., 13 Pet. 415; Kennett v. Chambers, 14 How. 38; Doe v. Braden, 16 How. 635; Jones v. United States, 137 U.S. 202; Terlinden v. Ames, 184 U.S. 270; Charlton v. Kelly, 229 U.S. 447; Oetjen v. Central Leather Co., 246 U.S. 297; Er parte Peru, 318 U.S. 578: Clark v. Allen, 331 U.S. 503. Compare Foster and Elam v. Neilson, 2 Pet. 253, with United States v. Arredondo, 6 Pet. 691. Of course, judgment concerning the "political" nature of even a controversy affecting the Nation's foreign affairs is not a simple mechanical matter, and certain of the Court's decisions have accorded scant weight to the consideration of unity of action in the conduet of external relations. Compare Vermilya-Brown Co. v. Connell, 335 U.S. 337. with United States v. Pink, 315 U.S. 203. 12 Obviously, this is the equivalent of saying that the characteristics are not "constitutionally requisite" in a judicially enforceable sense. The recognition of their necessity as a condition of legislation is left, as is observance of certain other constitutional commands, to the conscience of the non-judicial organs. Cf. Kentucky v. Dennison, 24 How. 66. 13 Also compare the Coleman case and United States v. Sprague, 282 U.S. 716, with Hawke v. Smith (No. 1), 253 U.S. 221. See the National Prohibition Cases, 253 U.S. 350; and Consider the Court's treatment of the several contentions in Leser v. Garnett, 258 U.S. 130.

Court has recognized that, concerning a particular power of Congress put in issue, "... effective restraints on its exercise must proceed from political rather than from judicial processes." Wickard v. Filburn, 317 U.S. 111, 120. It is also true that even regarding the duration of war and the status of Indian tribes, referred to above as subjects ordinarily committed exclusively to the non-judicial branches, the Court has suggested that some limitations exist upon the range within which the decisions of those branches will be permitted to go unreviewed. See United States v. Sandoval, supra, at 46; cf. Chastleton Corp. v. Sinclair, 264 U.S. 543. But this is merely to acknowledge that particular circumstances may differ so greatly in degree as to differ thereby in kind, and that, although within a certain range of cases on a continuum, no standard of distinction can be found to tell between them, other cases will fall above or below the range. The doctrine of political questions, like any other, is not to be applied beyond the limits of its own logic, with all the quiddities and abstract disharmonies it may manifest. See the disposition of contentions based on logically distorting views of Colegrove V. Green and Hunter v. Pittsburgh, 207 U.S. 161, in Gomillion v. Lightfoot, 364 U.S. 339.

2. The Court has been particularly unwilling to intervene in matters concerning the structure and organization of the political institutions of the States. The abstention from judicial entry into such areas has been greater even than that which marks the Court's ordinary approach to issues of state power challenged under broad federal guarantees. "We should be very reluctant to decide that we had jurisdiction in such a case, and thus in an action of this nature to supervise and review the political administration of a state government by its own officials and through its own courts. The jurisdiction of this court would only exist in case there had been . . . such a plain and substantial departure from the fundamental principles upon which our government is based that it could with truth and propriety be said that if the judgment were suffered to remain, the party-aggrieved would be deprived of his life, liberty or property in violation of the provisions of the Federal Constitution." Wilson v. North Carolina, 169 U.S. 586, 596. See Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548; Walton v. House of Representatives, 265 U.S. 487; Snowden v. Hughes, 321 U.S. 1. Cf. In re Sawyer, 124 U.S. 200, 220–221.

Where, however, state law has made particular federal questions determinative of relations within the structure of state government, not in challenge of it, the Court has resolved such narrow, legally defined questions in proper proceedings. See Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135. In such instances there is no conflict between state policy and the exercise of federal judicial power. This distinction explains the decisions in Smiley v. Holm, 285 U.S. 355; Koenig v. Flynn, 285 U.S. 375; and Carroll v. Becker, 285 U.S. 380, in which the Court released state constitutional provisions prescribing local lawmaking procedures from misconceived restriction of superior federal requirements. Adjudication of the federal claim involved in those cases was not one demanding the accommodation of conflicting interests for which no readily accessible judicial standards could be found. See McPherson v. Blacker, 146 U.S. 1, in which, in a case coming here on writ of error from the judgment of a state court which had entertained it on the merits, the Court treated as justiciable the claim that a State could not constitutionally select its presidential electors by districts, but held that Art. II, § 1, cl. 2, of the Constitution left the mode of choosing electors in the absolute discretion of the States. Cf. Pope v. Williams, 193 U.S. 621; Breedlove v. Suttles, 302 U.S. 277. To read with literalness the abstracted jurisdictional discussion in the McPherson opinion reveals the danger of conceptions of "justiciability" derived from talk and not from the effective decision in a case. In probing beneath the surface of cases in which the Court has declined to interfere with the actions of political organs of government, of decisive significance is whether in each situation the ultimate decision has been to intervene or not to intervene. Compare the reliance in South v. Peters, 339 U.S. 276, on MacDougall v. Green, 335 U.S. 281, and the "jurisdictional" form of the opinion in Wilson v. North Carolina, 169 U.S. 586, 596, supra.

3. The cases involving Negro disfranchisement are no exception to the principle of avoiding federal judicial intervention into matters of state government in the absence of an explicit and clear constitutional imperative. For here the controlling command of Supreme Law is plain and unequivocal. An end of discrimination against the Negro was the compelling motive of the Civil War Amendments. The Fifteenth expresses this in terms, and it is no less true of the Equal Protection Clause of the Fourteenth. Slaughter-House Cases, 16 Wall. 36,

67–72; Strauder v. West Virginia, 100 U.S. 303, 306–07; Nixon v. Herndon, 273 U.S. 536, 541. Thus the Court, in cases involving discrimination against the Negro's right to vote, has recognized not only the action at law for damages," but, in appropriate circumstances, the extraordinary remedy of declaratory or injunctive relief.15 Schnell v. Davis, 336, U.S. 933; Terry v. Adams, 345, U.S. 461. Injunctions in these cases, it should be noted, would not have restrained state-wide general elections. Compare Giles v. Harris, 189 U.S. 475.

16

18

17

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 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; 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. 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 Teras 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. 1.1 And in Georgia 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 threat

14 E.g., Myers v. Anderson, 238 U.S. 368: Nixon v. Condon, 286 U.S. 73; Lane v. Wilson, 307 U.S. 268; Smith v. Allwright, 321 U.S. 649. The action for damages for improperly rejecting an elector's vote had been given by the English law since the time of Ashby v. White, 1 Brown's Cases in Parliament 62; 2 Ld. Raym. 938; 3 Ld. Raym. 320, a case which in its own day precipitated an intraparliamentary war of major dimensions. See 6 Hansard, Parliamentary History of England (1810). 225-324, 376-436. Prior to the racial-discrimi nation cases, this Court had recognized the action, by implication, in dictum in Swafford v. Templeton, 185 U.S. 487, and Wiley v. Sinkler, 179 U.S. 58, both respecting federal elections.

15 Cf. Gomillion v. Lightfoot, 364 U.S. 339.

10 By statute an action for preventive relief is now given the United States in certain voting cases. 71 Stat. 637. 42 U.S.C. § 1971 (c). amending R.S. 2004. See United States v. Raines, 362 U.S. 17; United States v. Thomas, 362 U.S. 58.

17 Compare Rhode Island v. Massachusetts, 12 Pet. 657, and cases following, with Georgia v. Stanton, 6 Wall. 50.

18 Compare Worcester v. Georgia, 6 Pet. 515, with Cherokee Nation v. Georgia, 5 Pet. 1, 20. 28 (Mr. Justice Johnson, concurring), 51 and 75 (Mr. Justice Thompson, dissenting). 19 This was an alternative ground of Chief Justice Marshall's opinion for the Court. Id., at 20. The question which Marshall reserved as "unnecessary to decide," ibid., was not the justiciability of the bill in this aspect, but the "more doubtful" question whether that "part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession," might be entertained. Ibid. Mr. Justice Johnson, concurring, found the controversy nonjusticiable and would have put the ruling solely on this ground, id., at 28, and Mr. Justice Thompson, in dissent, agreed that much of the matter in the bill was not fit for judicial determination. Id., at 51, 75.

20 Cf. Mississippi v. Johnson, 4 Wall. 475.

ened infringement, is presented by the bill, in a judicial form, for the judgment of the court." Id., at 77."

28

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," " 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. Claims resting on this specific 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 noting ". . . the ruinous destruction of legislative authority in matters purely political which would necessarily be occasioned by giving sanction to the doctrine which underlies and would be necessarily in volved in sustaining the propositions contended for," " the Court said:

21 Considerations similar to those which determined the Cherokee Nation case and Georgia V. Stanton no doubt explain the celebrated decision in Nabob of the Carnatic v. East India Co., 1 Ves. jun. *371; 2 Ves. jun. *56, rather than any attribution of a portion of British sovereignty, in respect of Indian affairs, to the company. The reluctance of the English Judges to involve themselves in contests of factional political power is of ancient standing. In The Duke of York's Claim to the Crown, 5 Rotuli Parl. 375, printed in Wambaugh, Cases on Contitutional Law (1915), 1, the role which the Judges were asked to play appears to have been rather that of advocates than of judges, but the answer which they returned to the bill was not fit for judicial determination. Id., at 51, 75.

22 The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

Cf. the cases holding that the Fourteenth Amendment imposes no such restriction upon the form of a State's governmental organization as will permit persons affected by government action to complain that in its organization principles of separation of powers have been violated. E.g., Dreyer v. Illinois, 187 U.S. 71; Soliah v. Heskin, 222 U.S. 522; Houck v. Little River Drainage District, 239 U.S. 254. The same consistent refusal of this Court to find that the Federal Constitution restricts state power to design the structure of state political instiutions is reflected in the cases rejecting claims arising out of the States' creation, alteration, or destruction of local subdvisions or their powers, insofar as these claims are made by the subdivisions themselves. see Laramie County v. Albany County, 92 U.S. 307; Pawhuska v. Pawhuska Oil & Gas Co., 250 U.S. 394; Trenton v. New Jersey, 262 U.S. 182; Risty v. Chicago, R. I. & P. R. Co., 270 U.S. 378, 389-390; Williams v. Mayor and City Council of Baltimore, 289 U.S. 36. or by the whole body of their residents who share only a general, undifferentiated interest in their preservation. See Hunter v. Pittsburgh, 207 U.S. 161. The policy is also given effect by the denial of "standing" to persons seeking to challenge state action as infringing the interest of some separate unit within the State's administrative structure-a denial which precludes the arbitrament by federal courts of what are only disputes over the local allocation of government functions and powers. See. e.g., Smith v. Indiana, 191 U.S. 138: Braxton County Court v. West Vir ginia, 208 U.S. 192; Marshall v. Dye, 231 U.S. 250; Stewart v. Kansas City, 239 U.S. 14. 24 223 U.S.. at 141. ". . . [T]he contention, if held to be sound, would necessarily affect the validity, not only of the particular statute which is before us, but of every other statute passed in Oregon since the adoption of the initiative and referendum. And indeed the propositions go further than this, since in their essence they assert that there is no governhental function, legislative or judicial. in Oregon, because it cannot be assumed, if the proposition be well founded, that there is at one and the same time one and the same government which is republican in form and not of that character." Compare Luther v. Borden, 7 How. 1 38-39:

For. if this court is authorized to enter upon this inquiry as proposed by the plaintiff. and it should be decided that the charter government had no legal existence during the period of time above mentioned.-if, it had been annulled by the adoption of the opposing government.-then the laws passed by its legislature during that time were nullities: its taxes wrongfully collected; its salaries and compensation to its officers illegally paid: it spublic accounts improperly settled; and the judgments and sentences of its courts in civi land criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals.

"When the decision of this court might lead to such results. it becomes its duty to examine very carefully its own powers before it undertakes to exercise jurisdiction."

[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 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 develop 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 conventon 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 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. Border was a trespass action brought by one 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 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 repub

25 See Bowen, The Recent Contest in Rhode Island (1844); Frieze. A Concise History of the Efforts to Obtain an Extension of Suffrage in Rhode Island; From the Year 1811 to 1842 (2d ed. 1842); Mowry, The Dorr War (1901); Wayland, The Affairs of Rhode Island (2d ed. 1842).