Judicial Review and the Political Question Doctrine: Reviving the Federalist 'Rebuttable Presumption' Analysis
Robert J. Pushaw
Pepperdine University - School of Law
North Carolina Law Review, Vol. 80, 2002
Implementing Federalist theory, the Constitution established a presumption favoring judicial review, which could be rebutted only by a few constitutional provisions (such as those governing impeachment and appointments) that raised purely "political" questions. This "rebuttable presumption" approach held sway into the twentieth century.
Baker v. Carr replaced this Federalist political question doctrine with one that requires a prudential balancing of many vague factors. In practice, the Baker test has granted federal judges near absolute discretion, which has generally been exercised to decide constitutional issues that implicate sensitive political matters. Because the modem political question doctrine lacks legal coherence, both in theory and as applied, the Court should reintroduce the "rebuttable presumption" model in order to reach more legally principled and consistent results.
Number of Pages in PDF File: 38
Keywords: Constitutional law, judicial review, political question doctrine, Baker v. Carr
JEL Classification: K39Accepted Paper Series
Date posted: October 16, 2009
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