The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What Did Rucho Do to the Political Question Doctrine?
If you're interested in the political question doctrine, you should read my colleague Derek Muller's latest post at the Election Law Blog. Derek identifies several shifts in how lower courts are using the political question doctrine after Rucho–manageability is becoming more important, and it is manageability of rules rather than manageability of remedies that is coming to the fore.
To get the Volokh Conspiracy Daily e-mail, please sign up here.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
The article throws into stark relief a troubling Constitutional omission. At the founding, the notion of a continuously active sovereign as the ultimate political power was presumed. To understand properly some of the structure of American constitutionalism as it was created, it is necessary to allow scope for sovereign decision making based not on law, not on equity, not on fairness, whatever that is, but instead based on unconstrained sovereign will. Elections epitomize that circumstance.
Every election result is a sovereign decree, on a par with anything in the Constitution itself. Moreover, those decrees are examples of the constitutive power, the defining power of sovereignty itself. Here is founder James Wilson on the subject:
There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable . . . Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions . . . This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as well as right. The consequence is, the people may change constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.
Wilson was the founder in whose hand the penultimate and most-influential draft of the Constitution appeared.
To fully realize in governmental practice the importance of Wilson’s insight, and also of Franklin’s famous remark, “A republic, if you can keep it,” it will prove necessary for government branches, including the courts, to forebear more than they have done to tread on ground properly allocated by American constitutionalism for sovereign decision making.
Unfortunately, since the founding, the full extent of the founders’ intended reliance on sovereign governance has been forgotten, or denigrated as impractical, too risky, or simply inconvenient for politicians and judges who prefer to decide key questions themselves, without constraints from the meddlesome People.
The result has been a kind of decapitated constitutionalism, with the political branches and the courts from time-to-time competing to treat actual sovereign decision-making occasions instead as opportunities to aggrandize their own power, or to battle each other in contests to see which can prevail.
That has created misunderstandings about constitutional principles, and resulted in apparently-paradoxical assumptions about government. Examples include the notions of pre-existing rights, and dubious assertions that government serves at once as the principal threat to individual rights, and as a reliable means to vindicate them. Under Wilson’s more-accurate interpretation, government is rightly seen as a threat to rights, but a threat continuously under constraint by the sovereign, which wields power greater than government’s.
That notion of a continuously active power greater than government’s is thus especially salient in precisely the areas—including all election-related cases—which have drawn focus in the Supreme Court as occasions to cite the political questions doctrine. The Court should neither decline to consider such questions, nor rummage among legalisms in futile attempts to substitute judicially made-up principles for questions already properly decided by the arbitrary and ungovernable power of the sovereign.
Does one-person-one vote apply? Of course it does. The notion of joint popular sovereignty demands it.
Is an insurrectionist empowered to seize from the People themselves their arbitrary and exclusive power to bestow the gift of office? No. And the People put that question beyond the reach of the Court when they decreed Section 3 of the 14th Amendment.
Does a partisan gerrymander deserve a presumption of legitimacy, or fall within the prerogatives of political branches to decide? Not if the will of the joint popular sovereign is to be respected. A partisan gerrymander is a means to traduce the power of some targeted members among the joint sovereignty.
There is clarifying power in the notion of supreme ungovernable power over government, as announced by Wilson. More deference from all three branches for that power would make for more coherent government.
It would also deliver a solution to the vexing current problem of whether a politician who swore an oath to defend the People’s sovereignty, but who treacherously initiated a contest for sovereignty against them, deserves anything from the People except severe and jealous constraint. Perhaps later to be followed by mercy, if that becomes the People’s pleasure.
Not sure what the point of this is. An incoherent mish-mash.
ReaderY, I failed, yet again, to make my point, or should I say James Wilson’s point. Taking someone off the ballot is not a remedy. It neither cures nor punishes insurrection. It is instead obedience to a sovereign decree that insurrectionists who swore oaths of loyalty cannot serve in office.
What did you think of James Wilson? Was he incoherent too?
Claiming that determining whether an insurrection has occurred or not is a nonjusticiable political question has huge implications. It would suggest:
1. Courts couldn’t try people for insurrection crimes. 2. Courts couldn’t say that police or military suppression of a protest or gathering the Executive branch claimed was an insurection was unlawful and would have to accept the government’s word.
Taking someone off the ballot is merely a remedy. But if federal courts can’t decide the underlying question, no remedy is permissable. Not only is the judiciary powerless to punish actual insureectionists no matter what they do, it is equally powerless to stop government officials from simply declaring their political enemies insurrectionists and shooting them on the streets.
In other words, although Professor Bray is arguing in polite terms, using formal legal terminology and precedents, he is talking crazy talk. If his argument is valid, the constitution is a suicide pact, nothing more.
I remain confused about the context of deciding insurrectionist guilt in the context of this post. People have argued a variety of reasons why Trump can’t be disqualified under 14ASec3, but the one I think is best is that it requires a criminal conviction for insurrection, since the courts are operating and we don’t currently have armies mobilized for civil war. Ad hoc civil judicial proceedings not defined by law fail due process.
Why would a federal court (jury) be unable to find someone guilty of insurrection, any more than find someone guilty of conspiracy? As long as both are defined by law and decided in a criminal trial? I must be missing something.
Ad hoc civil judicial proceedings not defined by law fail due process.
What process do you suppose is due to, ” . . . a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable?”