Judicial Review and the Political Question Doctrine: Reviving the Federalist 'Rebuttable Presumption' Analysis

38 Pages Posted: 16 Oct 2009

See all articles by Robert J. Pushaw

Robert J. Pushaw

Pepperdine University - Rick J. Caruso School of Law

Date Written: 2002

Abstract

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.

Keywords: Constitutional law, judicial review, political question doctrine, Baker v. Carr

JEL Classification: K39

Suggested Citation

Pushaw, Robert J., Judicial Review and the Political Question Doctrine: Reviving the Federalist 'Rebuttable Presumption' Analysis (2002). North Carolina Law Review, Vol. 80, 2002, Available at SSRN: https://ssrn.com/abstract=1489620

Robert J. Pushaw (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

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