of the Concept

The concept of "political question" is an old one. As early as Marbury
_v._ Madison,[201] Chief Justice Marshall stated: "The province of the
court is, solely, to decide on the rights of individuals, not to inquire
how the executive, or executive officers, perform duties in which they
have a discretion. 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 concept, as distinguished from that of interference
with executive functions, was first elaborated in Luther _v._
Borden,[202] which involved the meaning of "a republican form" of
government and the question of the lawful government of Rhode Island
among two competing groups purporting to act as the lawful authority.
"It is the province of a court to expound the law, not to make it,"
declared Chief Justice Taney. "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, * * *; nor has it the right to
determine what political privileges the citizens of a State are entitled
to, unless there is an established constitution or law to govern its
decision."[203] The Court went on to hold that such matters as the
guaranty to a State of a republican form of government and of protection
against invasion and domestic violence are political questions committed
to Congress and the President whose decisions are binding upon the
courts.[204]

Exemplifications of the Doctrine

From this case and later applications of it, a political question may be
defined as a question relating to the possession of political power, of
sovereignty, of government, the determination of which is vested in
Congress and the President whose decisions are conclusive upon the
courts. The more common classifications[205] of cases involving
political questions are: (1) those which raise the issue of what proof
is required that a statute has been enacted,[206] or a constitutional
amendment ratified;[207] (2) questions arising out of the conduct of
foreign relations;[208] (3) the termination of wars,[209] or
rebellions;[210] the questions of what constitutes a republican form of
government,[211] and the right of a state to protection against invasion
or domestic violence;[212] questions arising out of political actions of
States in determining the mode of choosing presidential electors,[213]
State officials,[214] and