Peter Woll Constitutional Law Case Notes

One main goal of the Progressive movement, which lasted from the late 1890s until World War I, was to ameliorate the worst aspects of industrialization -- fouling of the environment, abuse of workers, exploitation of consumers and corruption of the political process. Starting in the state legislatures, reformers passed a variety of statutes, including factory safety laws, workmen's compensation, minimum wages and maximum hours.

But conservatives were able to block some of these programs in the courts, where they appealed to a judiciary imbued with the notions that private property was sacrosanct and that legislatures should not be able to tell people how to use their property. Courts also sustained the notion of "liberty to contract," claiming that employers and employees should be able to negotiate without state interference. The courts did acknowledge that the state had an inherent police power, by which it could interfere with property and labor contracts in order to protect the health and safety of citizens.

But in the 1905 case of Lochner v. New York, a bare majority of the Supreme Court had ruled that a law limiting bakery workers to a ten-hour day was unconstitutional, because such a measure bore no relation to the workers' health or safety. The Court conceded, however, that such measures might be permissible if it could be shown that the law did in fact serve to protect health or safety.

When the state of Oregon established a ten-hour workday for women in laundries and factories, business owners attacked it on the grounds that, like the New York law, it bore no relation to the women's health or safety. To defend the law, Oregon turned to the noted Boston attorney Louis D. Brandeis, who had already won a reputation for defending the public interest. Brandeis seized upon the opening in Lochner, namely, that if he could show how the Oregon law related to worker health and safety, then the Court would have to sustain it. He de-vised a highly unusual brief. He covered the traditional legal precedents in just two pages, and then filled over 100 pages with sociological, economic and physiological data on the effect of long working hours on the health of women.

Justice Brewer's opinion not only acknowledged the brief, a highly unusual step, but conceded that women were in fact different from men, and thus needed this type of factory protection. Brandeis's strategy had worked, but it was a strategy for the times; he himself did not consider women inferior or subservient to men.

The most important result of the Brandeis brief and of the decision in this case is that it set the model for all future reformers attempting to use the law to affect social and political conditions. Muller democratized the law, in that it made it more open to the everyday facts of life; it called upon justices to take into account the effect of their decisions on the real world and on the lives of real people.

For further reading: Philippa Strum, Louis D. Brandeis: Justice for the People (1984); Alpheus T. Mason, "The Case of the Overworked Laundress," in Quarrels That Have Shaped the Constitution (1975).

MULLER V. OREGON (1908)

We held in Lochner v. New York (1905) that a law providing that no laborer shall be required or permitted to work in a bakery more than sixty hours in a week or ten hours in a day was not as to men a legitimate exercise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to his labor, and as such was in conflict with, and void under, the Federal Constitution. That decision is invoked by plaintiff in error as decisive of the question before us. But this assumes that the difference between the sexes does not justify a different rule respecting a restriction of the hours of labor.

In patent cases counsel are apt to open the argument with a discussion of the state of the art. It may not be amiss, in the present case, before examining the constitutional question, to notice the course of legislation as well as expressions of opinion from other than judicial sources. In the brief filed by Mr. Louis D. Brandeis, for the defendant in error, is a very copious collection of all these matters...

The legislation and opinions referred to... may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a widespread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil. Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking. At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge.

It is undoubtedly true, as more than once declared by this court, that the general right to contract in relation to one's business is part of the liberty of the individual, protected by the Fourteenth Amendment to the Federal Constitution; yet it is equally well settled that this liberty is not absolute and extending to all contracts, and that a State may, without conflicting with the provisions of the Fourteenth Amendment, restrict in many respects the individual's power of contract...

That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race...

The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her...

For these reasons, and without questioning in any respect the decision in Lochner v. New York, we are of the opinion that it cannot be adjudged that the act in question is in conflict with the Federal Constitution, so far as it respects the work of a female in a laundry.

UNITED STATES v. CAROLENE PRODUCTS CO., 304 U.S. 144 (1938)

[Footnote 4] There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369 , 370 S., 51 S.Ct. 532, 535, 536, 73 A.L.R. 1484; Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666, decided March 28, 1938.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536 , 47 S.Ct. 446; Nixon v. Condon, 286 U.S. 73 , 52 S.Ct. 484, 88 A.L. R. 458; on restraints upon the dissemination of information, see Near v. Minnesota, 283 U.S. 697 , 713-714, 718-720, 722, 51 S.Ct. 625, 630, 632, 633; Grosjean v. American Press Co., 297 U.S. 233 , 56 S.Ct. 444; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U.S. 359, 369 , 51 S.Ct. 532, 535, 73 A.L.R. 1484; Fiske v. Kansas, 274 U.S. 380 , 47 S.Ct. 655;

Whitney v. California, 274 U.S. 357 , 373-378, 47 S.Ct. 641, 647, 649; Herndon v. Lowry, 301 U.S. 242 , 57 S.Ct. 732; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673 , 45 S.Ct. 625; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365 , 57 S.Ct. 255, 260.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571, 39 A.L.R. 468, or national, Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625, 29 A.L.R. 1446; Bartels v. Iowa, 262 U.S. 404 , 43 S.Ct. 628; Farrington v. Tokushige, 273 U.S. 284 , 47 S.Ct. 406, or racial minorities. Nixon v. Herndon, supra; Nixon v. Condon, supra; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177 , 58 S.Ct. 510, decided February 14, 1938, note 2, and cases cited.

In reviewing congressional legislation under the Commerce Clause, we defer to what is often a merely implicit congressional judgment that its regulation addresses a subject substantially affecting interstate commerce "if there is any rational basis for such a finding." ... If that congressional determination is within the realm of reason, "the only remaining question for judicial inquiry is whether `the means chosen by Congress [are] reasonably adapted to the end permitted by the Constitution.' ...

The practice of deferring to rationally based legislative judgments "is a paradigm of judicial restraint." ... In judicial review under the Commerce Clause, it reflects our respect for the institutional competence of the Congress on a subject expressly assigned to it by the Constitution and our appreciation of the legitimacy that comes from Congress's political accountability in dealing with matters open to a wide range of possible choices ...

It was not ever thus, however, as even a brief overview of Commerce Clause history during the past century reminds us. The modern respect for the competence and primacy of Congress in matters affecting commerce developed only after one of this Court's most chastening experiences, when it perforce repudiated an earlier and untenably expansive conception of judicial review in derogation of congressional commerce power. A look at history's sequence will serve to show how today's decision tugs the Court off course, leading it to suggest opportunities for further developments that would be at odds with the rule of restraint to which the Court still wisely states adherence.

Notwithstanding the Court's recognition of a broad commerce power in Gibbons v. Ogden, 9 Wheat. 1, 196-197 (1824) (Marshall, C. J.), Congress saw few occasions to exercise that power prior to Reconstruction, see generally 2 C. Warren, The Supreme Court in United States History 729-739 (rev. ed. 1935), and it was really the passage of the Interstate Commerce Act of 1887 that opened a new age of congressional reliance on the Commerce Clause for authority to exercise general police powers at the national level, see id., at 729-730. Although the Court upheld a fair amount of the ensuing legislation as being within the commerce power, see, e.g., Stafford v. Wallace, 258 U.S. 495 (1922) (upholding an Act regulating trade practices in the meat packing industry); The Shreveport Rate Cases, 234 U.S. 342 (1914) (upholding ICC order to equalize inter- and intrastate rail rates); see generally Warren, supra, at 729-739, the period from the turn of the century to 1937 is better noted for a series of cases applying highly formalistic notions of "commerce" to invalidate federal social and economic legislation, see, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 303-304 (1936) (striking Act prohibiting unfair labor practices in coal industry as regulation of "mining" and "production," not "commerce"); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 545-548 (1935) (striking congressional regulation of activities affecting interstate commerce only "indirectly"); Hammer v. Dagenhart, 247 U.S. 251 (1918) (striking Act prohibiting shipment in interstate commerce of goods manufactured at factories using child labor because the Act regulated "manufacturing," not "commerce"); Adair v. United States, 208 U.S. 161 (1908) (striking protection of labor union membership as outside "commerce").

These restrictive views of commerce subject to congressional power complemented the Court's activism in limiting the enforceable scope of state economic regulation. It is most familiar history that during this same period the Court routinely invalidated state social and economic legislation under an expansive conception of Fourteenth Amendment substantive due process. See, e.g., Louis K. Liggett Co. v. Baldridge, 278 U.S. 105 (1928) (striking state law requiring pharmacy owners to be licensed as pharmacists); Coppage v. Kansas, 236 U.S. 1 (1915) (striking state law prohibiting employers from requiring their employees to agree not to join labor organizations); Lochner v. New York, 198 U.S. 45 (1905) (striking state law establishing maximum working hours for bakers). See generally L. Tribe, American Constitutional Law 568-574 (2d ed. 1988). The fulcrums of judicial review in these cases were the notions of liberty and property characteristic of laissez-faire economics, whereas the Commerce Clause cases turned on what was ostensibly a structural limit of federal power, but under each conception of judicial review the Court's character for the first third of the century showed itself in exacting judicial scrutiny of a legislature's choice of economic ends and of the legislative means selected to reach them.

It was not merely coincidental, then, that sea changes in the Court's conceptions of its authority under the Due Process and Commerce Clauses occurred virtually together, in 1937, with West Coast Hotel Co. v. Parrish, 300 U.S. 379 and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 . See Stern, The Commerce Clause and the National Economy, 1933-1946, 59 Harv. L. Rev. 645, 674-682 (1946). In West Coast Hotel, the Court's rejection of a due process challenge to a state law fixing minimum wages for women and children marked the abandonment of its expansive protection of contractual freedom. Two weeks later, Jones & Laughlin affirmed congressional commerce power to authorize NLRB injunctions against unfair labor practices. The Court's finding that the regulated activity had a direct enough effect on commerce has since been seen as beginning the abandonment, for practical purposes, of the formalistic distinction between direct and indirect effects.

In the years following these decisions, deference to legislative policy judgments on commercial regulation became the powerful theme under both the Due Process and Commerce Clauses, see United States v. Carolene Products Co., 304 U.S., at 147 -148, 152; United States v. Darby, 312 U.S. 100, 119 -121 (1941); United States v. Wrightwood Dairy Co., 315 U.S. 110, 118 -119 (1942), and in due course that deference became articulate in the standard of rationality review. In due process litigation, the Court's statement of a rational basis test came quickly. See United States v. Carolene Products Co., supra, at 152; see also Williamson v. Lee Optical Co., 348 U.S., at 489 -490. The parallel formulation of the Commerce Clause test came later, only because complete elimination of the direct/indirect effects dichotomy and acceptance of the cumulative effects doctrine, Wickard v. Filburn, 317 U.S. 111, 125 , 127-129 (1942); United States v. Wrightwood Dairy Co., supra, at 124-126, so far settled the pressing issues of congressional power over commerce as to leave the Court for years without any need to phrase a test explicitly deferring to rational legislative judgments.

The moment came, however, with the challenge to congressional Commerce Clause authority to prohibit racial discrimination in places of public accommodation, when the Court simply made explicit what the earlier cases had implied: "where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end." Katzenbach v. McClung, 379 U.S. 294, 303 -304 (1964), discussing United States v. Darby, supra; see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 -259 (1964). Thus, under commerce, as under due process, adoption of rational basis review expressed the recognition that the Court had no sustainable basis for subjecting economic regulation as such to judicial policy judgments, and for the past half-century the Court has no more turned back in the direction of formalistic Commerce Clause review (as in deciding whether regulation of commerce was sufficiently direct) than it has inclined toward reasserting the substantive authority of Lochner due process (as in the inflated protection of contractual autonomy). See, e.g., Maryland v. Wirtz, 392 U.S., at 190 , 198; Perez v. United States, 402 U.S. 146, 151 -157 (1971); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 276 , 277.

There is today, however, a backward glance at both the old pitfalls, as the Court treats deference under the rationality rule as subject to gradation according to the commercial or noncommercial nature of the immediate subject of the challenged regulation. See ante, at 10-13. The distinction between what is patently commercial and what is not looks much like the old distinction between what directly affects commerce and what touches it only indirectly. And the act of calibrating the level of deference by drawing a line between what is patently commercial and what is less purely so will probably resemble the process of deciding how much interference with contractual freedom was fatal. Thus, it seems fair to ask whether the step taken by the Court today does anything but portend a return to the untenable jurisprudence from which the Court extricated itself almost 60 years ago. The answer is not reassuring. To be sure, the occasion for today's decision reflects the century's end, not its beginning. But if it seems anomalous that the Congress of the United States has taken to regulating school yards, the act in question is still probably no more remarkable than state regulation of bake shops 90 years ago. In any event, there is no reason to hope that the Court's qualification of rational basis review will be any more successful than the efforts at substantive economic review made by our predecessors as the century began. Taking the Court's opinion on its own terms, JUSTICE BREYER has explained both the hopeless porosity of "commercial" character as a ground of Commerce Clause distinction in America's highly connected economy, and the inconsistency of this categorization with our rational basis precedents from the last 50 years.

Further glosses on rationality review, moreover, may be in the offing. Although this case turns on commercial character, the Court gestures toward two other considerations that it might sometime entertain in applying rational basis scrutiny (apart from a statutory obligation to supply independent proof of a jurisdictional element): does the congressional statute deal with subjects of traditional state regulation, and does the statute contain explicit factual findings supporting the otherwise implicit determination that the regulated activity substantially affects interstate commerce? Once again, any appeal these considerations may have depends on ignoring the painful lesson learned in 1937, for neither of the Court's suggestions would square with rational basis scrutiny.

The Court observes that the Gun-Free School Zones Act operates in two areas traditionally subject to legislation by the States, education and enforcement of criminal law. The suggestion is either that a connection between commerce and these subjects is remote, or that the commerce power is simply weaker when it touches subjects on which the States have historically been the primary legislators. Neither suggestion is tenable. As for remoteness, it may or may not be wise for the National Government to deal with education, but JUSTICE BREYER has surely demonstrated that the commercial prospects of an illiterate State or Nation are not rosy, and no argument should be needed to show that hijacking interstate shipments of cigarettes can affect commerce substantially, even though the States have traditionally prosecuted robbery. And as for the notion that the commerce power diminishes the closer it gets to customary state concerns, that idea has been flatly rejected, and not long ago. The commerce power, we have often observed, is plenary. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 312 U.S., at 276 ; United States v. Darby, supra, at 114; see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549 -550 (1985); Gibbons v. Ogden, 9 Wheat., at 196-197. Justice Harlan put it this way in speaking for the Court in Maryland v. Wirtz:

See also United States v. Darby, supra, at 114; Gregory v. Ashcroft, 501 U.S. 452, 460 (1991); United States v. Carolene Products Co., 304 U.S., at 147 . ...

The question for the courts, as all agree, is not whether as a predicate to legislation Congress in fact found that a particular activity substantially affects interstate commerce. The legislation implies such a finding, and there is no reason to entertain claims that Congress acted ultra vires intentionally. Nor is the question whether Congress was correct in so finding. The only question is whether the legislative judgment is within the realm of reason. ...

Congressional findings do not, however, directly address the question of reasonableness; they tell us what Congress actually has found, not what it could rationally find. If, indeed, the Court were to make the existence of explicit congressional findings dispositive in some close or difficult cases something other than rationality review would be afoot. The resulting congressional obligation to justify its policy choices on the merits would imply either a judicial authority to review the justification (and, hence, the wisdom) of those choices, or authority to require Congress to act with some high degree of deliberateness, of which express findings would be evidence. But review for congressional wisdom would just be the old judicial pretension discredited and abandoned in 1937, and review for deliberateness would be as patently unconstitutional as an Act of Congress mandating long opinions from this Court. Such a legislative process requirement would function merely as an excuse for covert review of the merits of legislation under standards never expressed and more or less arbitrarily applied. Under such a regime, in any case, the rationality standard of review would be a thing of the past.

On the other hand, to say that courts applying the rationality standard may not defer to findings is not, of course, to say that findings are pointless. They may, in fact, have great value in telling courts what to look for, in establishing at least one frame of reference for review, and in citing to factual authority. ... Congressional findings on a more particular plane than this record illustrates would accordingly have earned judicial thanks. But thanks do not carry the day as long as rational possibility is the touchstone, and I would not allow for the possibility, as the Court's opinion may, that the addition of congressional findings could in principle have affected the fate of the statute here.

III

Because JUSTICE BREYER'S opinion demonstrates beyond any doubt that the Act in question passes the rationality review that the Court continues to espouse, today's decision may be seen as only a misstep, its reasoning and its suggestions not quite in gear with the prevailing standard, but hardly an epochal case. I would not argue otherwise, but I would raise a caveat. Not every epochal case has come in epochal trappings. Jones & Laughlin did not reject the direct-indirect standard in so many words; it just said the relation of the regulated subject matter to commerce was direct enough. 301 U.S., at 41 -43. But we know what happened.

SUPREME COURT OF THE UNITED STATES

UNITED STATES v. MORRISON et al.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 99—5. Argued January 11, 2000–Decided May 15, 2000¹

Click here for links to all the opinions in the Morrison case

Petitioner Brzonkala filed suit, alleging, inter alia, that she was raped by respondents while the three were students at the Virginia Polytechnic Institute, and that this attack violated 42 U.S.C. § 13981 which provides a federal civil remedy for the victims of gender-motivated violence. Respondents moved to dismiss on the grounds that the complaint failed to state a claim and that §13981’s civil remedy is unconstitutional. Petitioner United States intervened to defend the section’s constitutionality. In dismissing the complaint, the District Court held that it stated a claim against respondents, but that Congress lacked authority to enact §13981 under either §8 of the Commerce Clause or §5 of the Fourteenth Amendment, which Congress had explicitly identified as the sources of federal authority for §13981. The en banc Fourth Circuit affirmed.

Held: Section 13981 cannot be sustained under the Commerce Clause or §5 of the Fourteenth Amendment. Pp. 7—28.

(a) The Commerce Clause does not provide Congress with authority to enact §13981’s federal civil remedy. A congressional enactment will be invalidated only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U.S. 549, 568, 577—578. Petitioners assert that §13981 can be sustained under Congress’ commerce power as a regulation of activity that substantially affects interstate commerce. The proper framework for analyzing such a claim is provided by the principles the Court set out in Lopez. First, in Lopez, the noneconomic, criminal nature of possessing a firearm in a school zone was central to the Court’s conclusion that Congress lacks authority to regulate such possession. Similarly, gender-motivated crimes of violence are not, in any sense, economic activity. Second, like the statute at issue in Lopez, §13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ regulation of interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that §13981 is sufficiently tied to interstate commerce to come within Congress’ authority, Congress elected to cast §13981’s remedy over a wider, and more purely intrastate, body of violent crime. Third, although §13981, unlike the Lopez statute, is supported by numerous findings regarding the serious impact of gender-motivated violence on victims and their families, these findings are substantially weakened by the fact that they rely on reasoning that this Court has rejected, namely a but-for causal chain from the initial occurrence of violent crime to every attenuated effect upon interstate commerce. If accepted, this reasoning would allow Congress to regulate any crime whose nationwide, aggregated impact has substantial effects on employment, production, transit, or consumption. Moreover, such reasoning will not limit Congress to regulating violence, but may be applied equally as well to family law and other areas of state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce. Pp. 7—19.

(b) Section 5 of the Fourteenth Amendment, which permits Congress to enforce by appropriate legislation the constitutional guarantee that no State shall deprive any person of life, liberty, or property, without due process or deny any person equal protection of the laws, City of Boerne v. Flores, 521 U.S. 507, 517, also does not give Congress the authority to enact §13981. Petitioners’ assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence is supported by a voluminous congressional record. However, the Fourteenth Amendment places limitations on the manner in which Congress may attack discriminatory conduct. Foremost among them is the principle that the Amendment prohibits only state action, not private conduct. This was the conclusion reached in United States v. Harris, 106 U.S. 629, and the Civil Rights Cases, 109 U.S. 3, which were both decided shortly after the Amendment’s adoption. The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time, who all had intimate knowledge and familiarity with the events surrounding the Amendment’s adoption. Neither United States v. Guest, 383 U.S. 745, nor District of Columbia v. Carter, 409 U.S. 418, casts any doubt on the enduring vitality of the Civil Rights Cases and Harris. Assuming that there has been gender-based disparate treatment by state authorities in this case, it would not be enough to save §13981’s civil remedy, which is directed not at a State or state actor but at individuals who have committed criminal acts motivated by gender bias. Section 13981 visits no consequence on any Virginia public official involved in investigating or prosecuting Brzonkala’s assault, and it is thus unlike any of the §5 remedies this Court has previously upheld. See e.g., South Carolina v. Katzenbach, 383 U.S. 301. Section 13981 is also different from previously upheld remedies in that it applies uniformly throughout the Nation, even though Congress’ findings indicate that the problem addressed does not exist in all, or even most, States. In contrast, the §5 remedy in Katzenbach was directed only to those States in which Congress found that there had been discrimination. Pp. 19—27.

169 F.3d 820, affirmed.

Rehnquist, C. J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined, and in which Souter and Ginsburg, JJ., joined as to Part I—A.

Eight Amendment Jurisprudence

As the cases below reveal the common law incorporated protections against cruel and unusual punishment, therefore the 8th amendment is redundant (why it is in the Bill of Rights I do not know). Since due process historically incorporates the substance (but not the text) of the 8th amendment the 14th amendment of course does also through its due process clause.

Now there is a question of whether or not definitions of cruel and unusual under the 8th amendment in federal jurisdiction differ from due process definitions. Frankfurter in the Resweber case below was careful to note that while due process incorporates protections against cruel and unusual punishment the 14th amendment due process DOES NOT incorporate the 8th amendment. Frankfurter opposed incorporation of the Bill of Rights under the 14th Amendment.

STATE OF LA. EX REL. FRANCIS v. RESWEBER, 329 U.S. 459 (1947)

Mr. Justice REED announced the judgment of the Court in an opinion in which The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice JACKSON join.

... Prohibition against the wanton infliction of pain has come into our law from the Bill of Rights of 1688. The identical words appear in our Eighth Amendment. The Fourteenth would prohibit by its due process clause execution by a state in a cruel manner...

When four members of the Court find that a State has denied to a person the due process which the Fourteenth Amendment safeguards, it seems to me important to be explicit regarding the criteria by which the State's duty of obedience to the Constitution must be judged. Particularly is this so when life is at stake....

In an impressive body of decisions this Court has decided that the Due Process Clause of the Fourteenth Amendment expresses a demand for civilized standards which are not defined by the specifically enumerated guarantees of the Bill of Rights. They neither contain the particularities of the first eight amendments nor are they confined to them....

FORD v. WAINWRIGHT, 477 U.S. 399 (1986)

For centuries no jurisdiction has countenanced the execution of the insane, yet this Court has never decided whether the Constitution forbids the practice. Today we keep faith with our common-law heritage in holding that it does....

Since this Court last had occasion to consider the infliction of the death penalty upon the insane, our interpretations of the Due Process Clause and the Eighth Amendment have evolved substantially. In Solesbee v. Balkcom, 339 U.S. 9 (1950), a condemned prisoner claimed a due process right to a judicial determination of his sanity, yet the Court did not consider the possible existence of a right under the Eighth Amendment, which had not yet been applied to the States...

There is now little room for doubt that the Eighth Amendment's ban on cruel and unusual punishment [which applies to the states through the due process clause of the 14th amendment] embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted....

The Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane....

I join Parts I and II of the Court's opinion. As JUSTICE MARSHALL ably demonstrates, execution of the insane was barred at common law [due process] precisely because it was considered cruel and unusual.

Baker v. Carr (1962), Frankfurter dissent on Political Question doctrine

Baker v. Carr (1962)

Views on the Political Question Doctrine

MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins, dissenting.

The Court today reverses a uniform course of decision established by a dozen cases, including one by which the very claim now sustained was unanimously rejected [369 U.S. 186, 267] only five years ago. The impressive body of rulings thus cast aside reflected the equally uniform course of our political history regarding the relationship between population and legislative representation - a wholly different matter from denial of the franchise to individuals because of race, color, religion or sex. Such a massive repudiation of the experience of our whole past in asserting destructively novel judicial power demands a detailed analysis of the role of this Court in our constitutional scheme. Disregard of inherent limits in the effective exercise of the Court's "judicial Power" not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined. It may well impair the Court's position as the ultimate organ of "the supreme Law of the Land" in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court's authority - possessed of neither the purse nor the sword - ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.

A hypothetical claim resting on abstract assumptions is now for the first time made the basis for affording illusory relief for a particular evil even though it foreshadows deeper and more pervasive difficulties in consequence. The claim is hypothetical and the assumptions are abstract because the Court does not vouchsafe the lower courts - state and federal - guidelines for formulating specific, definite, wholly unprecedented remedies for the inevitable litigations that today's umbrageous disposition is bound to stimulate in connection with politically motivated reapportionments in so many States. In [369 U.S. 186, 268] such a setting, to promulgate jurisdiction in the abstract is meaningless. It is as devoid of reality as "a brooding omnipresence in the sky," for it conveys no intimation what relief, if any, a District Court is capable of affording that would not invite legislatures to play ducks and drakes with the judiciary. For this Court to direct the District Court to enforce a claim to which the Court has over the years consistently found itself required to deny legal enforcement and at the same time to find it necessary to withhold any guidance to the lower court how to enforce this turnabout, new legal claim, manifests an odd - indeed an esoteric - conception of judicial propriety. One of the Court's supporting opinions, as elucidated by commentary, unwittingly affords a disheartening preview of the mathematical quagmire (apart from divers judicially inappropriate and elusive determinants) into which this Court today catapults the lower courts of the country without so much as adumbrating the basis for a legal calculus as a means of extrication. Even assuming the indispensable intellectual disinterestedness on the part of judges in such matters, they do not have accepted legal standards or criteria or even reliable analogies to draw upon for making judicial judgments. To charge courts with the task of accommodating the incommensurable factors of policy that underlie these mathematical puzzles is to attribute, however flatteringly, omnicompetence to judges. The Framers of the Constitution persistently rejected a proposal that embodied this assumption and Thomas Jefferson never entertained it.

Recent legislation, creating a district appropriately described as "an atrocity of ingenuity," is not unique. Considering the gross inequality among legislative electoral units within almost every State, the Court naturally shrinks from asserting that in districting at least substantial equality is a constitutional requirement enforceable [369 U.S. 186, 269] by courts. * Room continues to be allowed for weighting. This of course implies that geography, economics, urban-rural conflict, and all the other non-legal factors which have throughout our history entered into political districting are to some extent not to be ruled out in the undefined vista now opened up by review in the federal courts of state reapportionments. To some extent - aye, there's the rub. In effect, today's decision empowers the courts of the country to devise what should constitute the proper composition of the legislatures of the fifty States. If state courts should for one reason or another find themselves unable to discharge this task, the duty of doing so is put on the federal courts or on this Court, if State views do not satisfy this Court's notion of what is proper districting.

We were soothingly told at the bar of this Court that we need not worry about the kind of remedy a court could effectively fashion once the abstract constitutional right to have courts pass on a state-wide system of electoral districting is recognized as a matter of judicial rhetoric, because legislatures would heed the Court's admonition. This is not only a euphoric hope. It implies a sorry [369 U.S. 186, 270] confession of judicial impotence in place of a frank acknowledgement that there is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The Framers carefully and with deliberate forethought refused so to enthrone the judiciary. In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives. In any event there is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope.

This is the latest in the series of cases in which the Equal Protection and Due Process Clauses of the Fourteenth Amendment have been invoked in federal courts as restrictions upon the power of the States to allocate electoral weight among the voting populations of their various geographical subdivisions. 1 The present action, which [369 U.S. 186, 271] comes here on appeal from an order of a statutory three-judge District Court dismissing amended complaints seeking declaratory and injunctive relief, challenges the provisions of Tenn. Code Ann., 1955 3-101 to 3-109, which apportion state representative and senatorial seats among Tennessee's ninety-five counties.

The original plaintiffs, citizens and qualified voters entitled to vote for members of the Tennessee Legislature in the several counties in which they respectively reside, bring this action in their own behalf and "on behalf of all other voters in the State of Tennessee," or, as they alternatively assert, "on behalf of all qualified voters of their respective counties, and further, on behalf of all voters of the State of Tennessee who are similarly situated." The cities of Knoxville and Chattanooga, and the Mayor of Nashville - on his own behalf as a qualified voter and, pursuant to an authorizing resolution by the Nashville City Council, as a representative of all the city's residents - were permitted to intervene as parties plaintiff. 2 The defendants are executive officials charged with statutory duties in connection with state elections. 3 [369 U.S. 186, 272]

The original plaintiffs' amended complaint avers, in substance, the following. 4 The Constitution of the State of Tennessee declares that "elections shall be free and equal," provides that no qualifications other than age, citizenship and specified residence requirements shall be attached to the right of suffrage, and prohibits denying to any person the suffrage to which he is entitled except upon conviction of an infamous crime. Art. I, 5; Art. IV, 1. It requires an enumeration of qualified voters within every term of ten years after 1871 and an apportionment of representatives and senators among the several counties or districts according to the number of qualified voters in each 5 at the time of each decennial [369 U.S. 186, 273] enumeration. Art. II, 4, 5, 6. Notwithstanding these provisions, the State Legislature has not reapportioned itself since 1901. The Reapportionment Act of that year, Tenn. Acts 1901, c. 122, now Tenn. Code Ann., 1955, 3-101 to 3-109, 6 was unconstitutional when enacted, because not preceded by the required enumeration of qualified voters and because it allocated legislative seats arbitrarily, unequally and discriminatorily, as measured by the 1900 federal census. Moreover, irrespective of the question of its validity in 1901, it is asserted that the Act became "unconstitutional and obsolete" in 1911 by virtue of the decennial reapportionment requirement of the Tennessee Constitution. Continuing a "purposeful and systematic plan to discriminate against a geographical class of persons," recent Tennessee Legislatures have failed, as did their predecessors, to enact reapportionment legislation, although a number of bills providing for reapportionment have been introduced. Because of population shifts since 1901, the apportionment fixed by the Act of that year and still in effect is not proportionate to population, denies to the counties in which the plaintiffs [369 U.S. 186, 274] live an additional number of representatives to which they are entitled, and renders plaintiffs' votes "not as effective as the votes of the voters residing in other senatorial and representative districts . . . ." Plaintiffs "suffer a debasement of their votes by virtue of the incorrect, arbitrary, obsolete and unconstitutional apportionment of the General Assembly . . .," and the totality of the malapportionment's effect - which permits a minority of about thirty-seven percent of the voting population of the State to control twenty of the thirty-three members of Tennessee's Senate, and a minority of forty percent of the voting population to control sixty-three of the ninety-nine members of the House - results in "a distortion of the constitutional system" established by the Federal and State Constitutions, prevents the General Assembly "from being a body representative of the people of the State of Tennessee, . . ." and is "contrary to the basic principle of representative government . . .," and "contrary to the philosophy of government in the United States and all Anglo-Saxon jurisprudence . . . ."

Exhibits appended to the complaint purport to demonstrate the extent of the inequalities of which plaintiffs complain. Based upon "approximate voting population," 7 these set forth figures showing that the State [369 U.S. 186, 275] Senator from Tennessee's most populous senatorial district represents five and two-tenths times the number of voters represented by the Senator from the least populous district, while the corresponding ratio for most and least populous House districts is more than eighteen to one. The General Assembly thus apportioned has discriminated against the underrepresented counties and in favor of the overrepresented counties in the collection and distribution of various taxes and tax revenues, notably in the distribution of school and highway-improvement funds, 8 this discrimination being "made possible and effective" by the Legislature's failure to reapportion itself. Plaintiffs conclude that election of the State Legislature pursuant to the apportionment fixed by the 1901 Act violates the Tennessee Constitution and deprives them of due process of law and of the equal protection of the laws guaranteed by the Fourteenth Amendment. Their prayer below was for a declaratory judgment striking down the Act, an injunction restraining defendants from any acts necessary to the holding of elections in the districts prescribed by Tenn. Code Ann., 1955, 3-101 to 3-109, until such time as the legislature is reapportioned "according to the [369 U.S. 186, 276] Constitution of the State of Tennessee," and an order directing defendants to declare the next primary and general elections for members of the Tennessee Legislature on an at-large basis - the thirty-three senatorial candidates and the ninety-nine representative candidates receiving the highest number of votes to be declared elected. 9

Motions to dismiss for want of jurisdiction of the subject matter and for failure to state a claim were made and granted, 179 F. Supp. 824, the District Court relying upon this Court's series of decisions beginning with Colegrove v. Green, 328 U.S. 549 , rehearing denied, 329 U.S. 825 , motion for reargument before the full bench denied, 329 U.S. 828 . The original and intervening plaintiffs bring the case here on appeal. 364 U.S. 898 . In this Court they have altered their request for relief, suggesting a "step-by-step approach." The first step is a remand to the District Court with directions to vacate the order dismissing the complaint and to enter an order retaining jurisdiction, providing "the necessary spur to legislative action . . . ." If this proves insufficient, appellants will ask the "additional spur" of an injunction prohibiting elections under the 1901 Act, or a declaration of the Act's unconstitutionality, or both. Finally, all other means failing, the District Court is invited by the plaintiffs, greatly daring, to order an election at large or redistrict the State itself or through a master. The Solicitor General of the United States, who has filed a brief amicus and argued in favor of reversal, asks the Court on this appeal to hold only that the District Court has "jurisdiction" and may properly exercise it to entertain the plaintiffs' claims on the merits. This would leave to that court after remand the questions of the challenged statute's [369 U.S. 186, 277] constitutionality and of some undefined, unadumbrated relief in the event a constitutional violation is found. After an argument at the last Term, the case was set down for reargument, 366 U.S. 907 , and heard this Term.

I.

In sustaining appellants' claim, based on the Fourteenth Amendment, that the District Court may entertain this suit, this Court's uniform course of decision over the years is overruled or disregarded. Explicitly it begins with Colegrove v. Green, supra, decided in 1946, but its roots run deep in the Court's historic adjudicatory process.

Colegrove held that a federal court should not entertain an action for declaratory and injunctive relief to adjudicate the constitutionality, under the Equal Protection Clause and other federal constitutional and statutory provisions, of a state statute establishing the respective districts for the State's election of Representatives to the Congress. Two opinions were written by the four Justices who composed the majority of the seven sitting members of the Court. Both opinions joining in the result in Colegrove v. Green agreed that considerations were controlling which dictated denial of jurisdiction though not in the strict sense of want of power. While the two opinions show a divergence of view regarding some of these considerations, there are important points of concurrence. Both opinions demonstrate a predominant concern, first, with avoiding federal judicial involvement in matters traditionally left to legislative policy making; second, with respect to the difficulty - in view of the nature of the problems of apportionment and its history in this country - of drawing on or devising judicial standards for judgment, as opposed to legislative determinations, of the part which mere numerical equality among voters should play as a criterion for the allocation of [369 U.S. 186, 278] political power; and, third, with problems of finding appropriate modes of relief - particularly, the problem of resolving the essentially political issue of the relative merits of at-large elections and elections held in districts of unequal population.

The broad applicability of these considerations - summarized in the loose shorthand phrase, "political question" - in cases involving a State's apportionment of voting power among its numerous localities has led the Court, since 1946, to recognize their controlling effect in a variety of situations. (In all these cases decision was by a full Court.) The "political question" principle as applied in Colegrove has found wide application commensurate with its function as "one of the rules basic to the federal system and this Court's appropriate place within that structure." Rescue Army v. Municipal Court, 331 U.S. 549, 570 . In Colegrove v. Barrett, 330 U.S. 804 , litigants brought suit in a Federal District Court challenging as offensive to the Equal Protection Clause Illinois' state legislative-apportionment laws. They pointed to state constitutional provisions requiring decennial reapportionment and allocation of seats in proportion to population, alleged a failure to reapportion for more than forty-five years - during which time extensive population shifts had rendered the legislative districts grossly unequal - and sought declaratory and injunctive relief with respect to all elections to be held thereafter. After the complaint was dismissed by the District Court, this Court dismissed an appeal for want of a substantial federal question. A similar District Court decision was affirmed here in Radford v. Gary, 352 U.S. 991 . And cf. Remmey v. Smith, 342 U.S. 916 . In Tedesco v. Board of Supervisors, 339 U.S. 940 , the Court declined to hear, for want of a substantial federal question, the claim that the division of a municipality into voting districts of unequal population for the selection for councilmen fell [369 U.S. 186, 279] afoul of the Fourteenth Amendment, and in Cox v. Peters, 342 U.S. 936 , rehearing denied, 343 U.S. 921 , it found no substantial federal question raised by a state court's dismissal of a claim for damages for "devaluation" of plaintiff's vote by application of Georgia's county-unit system in a primary election for the Democratic gubernatorial candidate. The same Georgia system was subsequently attacked in a complaint for declaratory judgment and an injunction; the federal district judge declined to take the requisite steps for the convening of a statutory three-judge court; and this Court, in Hartsfield v. Sloan, 357 U.S. 916 , denied a motion for leave to file a petition for a writ of mandamus to compel the district judge to act. In MacDougall v. Green, 335 U.S. 281, 283 , the Court noted that "To assume that political power is a function exclusively of numbers is to disregard the practicalities of government," and, citing the Colegrove cases, declined to find in "such broad constitutional concepts as due process and equal protection of the laws," id., at 284, a warrant for federal judicial invalidation of an Illinois statute requiring as a condition for the formation of a new political party the securing of at least two hundred signatures from each of fifty counties. And in South v. Peters, 339 U.S. 276 , another suit attacking Georgia's county-unit law, it affirmed a District Court dismissal, saying

"Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state's geographical distribution of electoral strength among its political subdivisions." Id., at 277.

Of course it is important to recognize particular, relevant diversities among comprehensively similar situations. Appellants seek to distinguish several of this Court's prior decisions on one or another ground - Colegrove v. [369 U.S. 186, 280] Green on the ground that federal, not state, legislative apportionment was involved; Remmey v. Smith on the ground that state judicial remedies had not been tried; Radford v. Gary on the ground that Oklahoma has the initiative, whereas Tennessee does not. It would only darken counsel to discuss the relevance and significance of each of these assertedly distinguishing factors here and in the context of this entire line of cases. Suffice it that they do not serve to distinguish Colegrove v. Barrett, supra, which is on all fours with the present case, or to distinguish Kidd v. McCanless, 352 U.S. 920 , in which the full Court without dissent, only five years ago, dismissed on authority of Colegrove v. Green and Anderson v. Jordan, 343 U.S. 912 , an appeal from the Supreme Court of Tennessee in which a precisely similar attack was made upon the very statute now challenged. If the weight and momentum of an unvarying course of carefully considered decisions are to be respected, appellants' claims are foreclosed not only by precedents governing the exact facts of the present case but are themselves supported by authority the more persuasive in that it gives effect to the Colegrove principle in distinctly varying circumstances in which state arrangements allocating relative degrees of political influence among geographic groups of voters were challenged under the Fourteenth Amendment.

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 [369 U.S. 186, 281] 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, 11 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, 192 -193. 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 [369 U.S. 186, 282] 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. 12 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., [369 U.S. 186, 283] 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. Questions 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 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 [369 U.S. 186, 284] 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 [369 U.S. 186, 285] 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 [369 U.S. 186, 286] 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 -307; 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, 14 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 . 16 Injunctions in these cases, it should be noted, would not have restrained state-wide general elections. Compare Giles v. Harris, 189 U.S. 475 .

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 [369 U.S. 186, 287] 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; 17 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. 18 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 Texas 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. 19 And in Georgia [369 U.S. 186, 288] 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 threatened infringement, is presented by the bill, in a judicial form, for the judgment of the court." Id., at 77. 21 [369 U.S. 186, 289]

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," 22 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 . 23 Claims resting on this specific [369 U.S. 186, 290] 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 nothing ". . . the ruinous destruction of legislative authority in matters purely political which would necessarily be occasioned by giving sanction [369 U.S. 186, 291] to the doctrine which underlies and would be necessarily involved in sustaining the propositions contended for," 24 the Court said:

". . . [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 [369 U.S. 186, 292] 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 developed 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 convention 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 [369 U.S. 186, 293] 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. Borden was a trespass action brought by one of 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 [369 U.S. 186, 294] 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 republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts." Ibid. 26 [369 U.S. 186, 295]

In determining this issue non-justiciable, the Court was sensitive to the same considerations to which its later decisions have given the varied applications already discussed. It adverted to the delicacy of judicial intervention into the very structure of government. 27 It acknowledged that tradition had long entrusted questions of this nature to non-judicial processes, 28 and that judicial processes were unsuited to their decision. 29 The absence of guiding standards for judgment was critical, for the question whether the Dorr constitution had been rightfully adopted depended, in part, upon the extent of the franchise to be recognized - the very point of contention over which rebellion had been fought.

". . . [I]f the Circuit Court had entered upon this inquiry, by what rule could it have determined the qualification of voters upon the adoption or rejection of the proposed constitution, unless there was some previous law of the State to guide it? It is the province of a court to expound the law, not to make it. 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, giving the right to those to whom it is denied by the written and established constitution and laws of the State, or taking it away from those to whom it is given; nor has it the right to determine what political privileges [369 U.S. 186, 296] the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision." Id., at 41.

Mr. Justice Woodbury (who dissented with respect to the effect of martial law) agreed with the Court regarding the inappropriateness of judicial inquiry into the issues:

"But, fortunately for our freedom from political excitements in judicial duties, this court can never with propriety be called on officially to be the umpire in questions merely political. The adjustment of these questions belongs to the people and their political representatives, either in the State or general government. These questions relate to matters not to be settled on strict legal principles. They are adjusted rather by inclination, - or prejudice or compromise, often. Some of them succeed or are defeated even by public policy alone, or mere naked power, rather than intrinsic right. . . .

"Another evil, alarming and little foreseen, involved in regarding these as questions for the final arbitrament of judges would be, that in such an event all political privileges and rights would, in a dispute among the people, depend on our decision finally. . . . [D]isputed points in making constitutions, depending often, as before shown, on policy, inclination, popular resolves, and popular will, . . . if the people, in the distribution of powers under the constitution, should ever think of making judges supreme arbiters in political controversies, when not selected by nor, frequently, amenable to them, nor at liberty to follow such various considerations in their judgments as belong to mere political questions, they will dethrone themselves and lose one of their own invaluable birthrights; building up in this way - slowly, but surely - a new sovereign power in the [369 U.S. 186, 297] republic, in most respects irresponsible and unchangeable for life, and one more dangerous, in theory at least, than the worst elective oligarchy in the worst of times. . . ." Id., at 51-53. 30

III.

The present case involves all of the elements that have made the Guarantee Clause cases non-justiciable. It is, in effect, a Guarantee Clause claim masquerading under a different label. But it cannot make the case more fit for judicial action that appellants invoke the Fourteenth Amendment rather than Art. IV, 4, where, in fact, the gist of their complaint is the same - unless it can be found that the Fourteenth Amendment speaks with greater particularity to their situation. We have been admonished to avoid "the tyranny of labels." Snyder v. Massachusetts, 291 U.S. 97, 114 . Art. IV, 4, is not committed by express constitutional terms to Congress. It is the nature of the controversies arising under it, nothing else, which has made it judicially unenforceable. Of course, if a controversy falls within judicial power, it depends "on how he [the plaintiff] casts his action," Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 662 , whether he brings himself within a jurisdictional statute. But where judicial competence is wanting, it cannot be created by invoking one clause of the Constitution rather than another. When what was essentially a Guarantee Clause claim was sought to be laid, as well, under the Equal Protection Clause in Pacific States

Constitutional Law Case Notes

Judicial Review

DICKERSON v. UNITED STATES
United States Supreme Court (2000)

BACKGROUNDER ON THE BRANDEIS BRIEF AND THE SUPREME COURT OPINION IN THE MULLER V. OREGON CASE

MULLER V. OREGON (1908)

I

II

A

III

UNITED STATES v. MORRISON et al.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Eight Amendment Jurisprudence

STATE OF LA. EX REL. FRANCIS v. RESWEBER, 329 U.S. 459 (1947)

FORD v. WAINWRIGHT, 477 U.S. 399 (1986)

Baker v. Carr (1962), Frankfurter dissent on Political Question doctrine

I.

II.

III.

Constitutional Law Case Notes

Judicial Review

DICKERSON v. UNITED STATES United States Supreme Court (2000)

BACKGROUNDER ON THE BRANDEIS BRIEF AND THE SUPREME COURT OPINION IN THE MULLER V. OREGON CASE

MULLER V. OREGON (1908)

I

II

A

III

UNITED STATES v. MORRISON et al.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Eight Amendment Jurisprudence

STATE OF LA. EX REL. FRANCIS v. RESWEBER, 329 U.S. 459 (1947)

FORD v. WAINWRIGHT, 477 U.S. 399 (1986)

Baker v. Carr (1962), Frankfurter dissent on Political Question doctrine

I.

II.

III.

DICKERSON v. UNITED STATES
United States Supreme Court (2000)