Document Type

Article

Publication Date

2004

Abstract

"Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."

The irony, of course, is that Marbury v. Madison, itself, "made" a political question, and the answer the Court gave was deeply political as well. As everyone reading this essay knows, the case arose out of a bitter political controversy, and the opinion for the Court was a carefully crafted political document - "a masterwork of indirection," according to Robert McCloskey's well-known characterization, "a brilliant example of Chief Justice Marshall's capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking in another."

The purpose of this essay is to explore the many layers of this irony. I will argue that despite all of the premature reports of its demise, the political question doctrine is as central to modern constitutional adjudication as it was to the outcome in Marbury at the beginning of our constitutional history. Moreover, the irony at Marbury's core continues to haunt the doctrine two hundred years later. Now, as then, application of the doctrine requires courts to resolve political questions - the very activity the doctrine purports to avoid. Now, as then, this contradiction mocks Chief Justice Marshall's confident assertion that "[i]f some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction." As we shall see, the effort to make the political question problem into a "doctrine" - to bound it by a rule of law - is a fool's errand. The difficulty posed by political question jurisprudence is not that the court has sometimes politicized law, but that it has never successfully legalized politics.

Publication Citation

37 J. Marshall L. Rev. 441-480 (2004)

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