Political Questions and Political Remedies

Jonathan R. Siegel
2004 Social Science Research Network  
Defenders of the political question doctrine sometimes observe that the lack of a judicial remedy for a constitutional violation does not deprive injured parties of all remedy, because injured parties can pursue a political or an electoral remedy-they can seek relief "at the ballot box" or in the political process. This essay criticizes that argument. Political and electoral remedies for constitutional violations are ineffective for important practical and theoretical reasons that grow out of
more » ... e different structures of the judicial, political, and electoral processes. The judicial process focuses each case on a particular issue; candidates in elections always represent a package of positions on many issues, so that voters do not actually have an opportunity to vote for or against a particular, allegedly unconstitutional action. The judicial process produces reasons for its decisions; the electoral process produces only an inscrutable result, so that even if voters managed to defeat a candidate because of unconstitutional action, no one could really know it. The judicial process operates within a system of precedent; political battles may have to be fought afresh each election cycle. The judicial process is mandatory; legislatures may choose to ignore political agitation. Finally, the judicial process operates according to law; the political and electoral processes are majoritarian and are not likely to be good vehicles for enforcing constraints on majoritarianism. These differences between the judicial, political, and electoral processes demonstrate the error of arguing that the political and electoral processes provide an adequate substitute for a judicial remedy. They also show that the political insulation of judges, although very important, is only one factor supporting the institution of judicial review. Judicial review also rests on the distinctive features of the judicial process: that it is focused, that it is mandatory, that it articulates norms explicitly, and that it operates within a system of precedent. Defenders of the political question doctrine must explain not only why we should entrust constitutional questions to officials not insulated from politics, but why we should entrust them to a process lacking these other, vital features of judicial review. The puzzling and troubling feature of the political question doctrine is the potential it seems to have to render constitutional provisions meaningless. After armed struggle and tremendous political effort, our ancestors gave us the magnificent achievement of a written Constitution that limits the powers of government. 1 Under the political question doctrine, however, the principal enforcement mechanism for those constitutional limits-judicial review-is not available for certain constitutional provisions. At least at first blush, therefore, it might appear that some parts of the Constitution, though ostensibly constraining the behavior of government, cannot in fact do so, because of the lack of an enforcement mechanism for the constraint. Defenders of the political question doctrine explain this apparently troubling fact in numerous ways. They point out that the lack of judicial enforcement does not automatically render a constitutional constraint meaningless. The political branches may successfully police themselves by obeying judicially unenforceable constitutional provisions. 2 Indeed, some scholars argue, the political branches may have institutional advantages that make them better suited to apply certain constitutional provisions than the judiciary. 3 The main purpose of this essay is to critique one further argument used by defenders of the 4 See infra Part II. -2 -political question doctrine: that, even where a constitutional provision is not judicially enforceable, it is still susceptible of electoral enforcement. When voters, this argument runs, have no judicial remedy for a perceived constitutional violation because of the political question doctrine, they can still take to the polls and turn offending politicians out of office. Thus, this argument suggests, we should not be overly concerned that the political question doctrine deprives the courts of enforcement power over certain constitutional provisions, because the electoral process provides an appropriate substitute. 4 This essay calls attention to the flaws in this argument. The argument ignores critical differences between the judicial and the electoral processes. Not only might attempts to use the electoral process to remedy constitutional violations be utterly impractical because of the cost and effort required, but the electoral process lacks crucial structural elements provided by the judicial process that make the latter a proper mechanism for the enforcement of constitutional constraints. The judicial process is mandatory in nature; it focuses on particular issues; it provides a statement of reasons for its decisions; it operates within a system of precedent; and it operates according to law, not according to majoritarian preference. These features of the judicial process, this essay argues, are not found in the electoral process and are crucial to the appropriateness of the judicial process for resolving constitutional issues. The primary, and modest, purpose of this essay is to demonstrate the flaws in this one, particular argument used in defense of the political question doctrine. But beyond that, the essay suggests that analyzing the flaws in the argument is of interest because it provides useful insight into the issue of the political question doctrine's ultimate validity. In cataloging the differences between
doi:10.2139/ssrn.527264 fatcat:3ouewcd2qrhjffbfvi4bjz7rjy