2,

a motion to dismiss the bill was granted. In Massachusetts v. Mellon,1 ,131 the entry is, "Dismissed." 132 In the first of these cases the jurisdictional defect was that the party plaintiff was not a foreign state within the meaning of Article III, Section ,133 with a dictum that the subject-matter also was not within the Court's jurisdiction. In the second and third cases this dictum became the ground of decision. In seven of the cases the suits were originally brought in the lower federal courts, and some one of the general grounds of federal jurisdiction was present in each.134 In none of these cases was there any dismissal of the appellate process for want of jurisdiction, except in the instance of the procedurally improper certificate of division in Rachael Luther v. Borden.135 In all of them some issue upon which the rights of the parties depended was held settled by some action or non-action of the executive or legislative. Almost all were primarily issues of fact.136 Each such issue was intrinsically capable of settlement by independent judicial investigation.

This analysis shows the decisions falling into three classes: (1) those like Massachusetts v. Mellon where the primary object of the litigation was the enforcement of an alleged constitutional right which related not to person or property, even in a broad sense, but to political existence and integrity; (2) Pacific States Telephone Co. v. Oregon, where the litigation was to secure private rights but where the sole issue presented by the writ of error was similar or analogous in its nature to those involved in the preceding class of cases; (3) those where the litigation concerned private rights, but where a significant issue was of this other sort. In the first type of case the courts have no jurisdiction of the subject-matter at all. In the second type

131 262 U. S. 447 (1923).

132 At p. 489.

133 See note 124, supra.

134 Admiralty: Schooner Exchange v. M'Faddon, supra, p. 316; United States v. Palmer, supra, p. 317. Diversity of citizenship: Luther v. Borden, supra, p. 321; and probably Kennett v. Chambers, supra, p. 317. Issues involved, under treaty or federal statute: Foster & Elam v. Neilson, supra, p. 318; Field v. Clark, supra, p. 314; Commercial Trust Co. v. Miller, supra, pp. 319-320.

136 See the discussion of the cases in the text, supra, pp. 314-325.

of case there is a lack of the jurisdictional element required for the technically separate case, the writ of error. In the third type of case there is jurisdiction of the cause for decision and for review, but not for determination of the particular issue, upon which the Court accepts instead the decision of the other branches of government. There is a little difficulty, however, in reconciling with cases of this third sort the disposal made of Pacific States Telephone Co. v. Oregon. It is perhaps possible to align that case with those which hold that when there is very clearly no merit in the contention of the plaintiff-in-error the proper practice is to dismiss the writ.137 But it is also possible to say that whether a republican form of government exists in a state is a different sort of issue from that, for example, of whether a given government is sovereign over a particular territory; and that, while the courts in a case involving the latter sort of issue will ascertain as best they may the legislative or executive decision thereon, and adjust the rights of the parties accordingly, they will in a case wherein is set up an issue of the former sort decline to consider it at all. This would be upon the theory that not merely is the decision of fact, whether a republican form of government exists, entrusted to the nonjudicial branches, but that, assuming a settlement of this issue of fact, the enforcement of the guaranty by any means whatever is also wholly and exclusively for the executive and legislative.138

When these variations have been noted, the basic similarities will be seen to remain unimpeached thereby. They are, though present in varying degrees in the different cases, as follows. (a) The fundamental powers and duties in question have distinctly not been delegated to the courts by the Constitution, but rather to the other departments. (b) These fundamental powers and duties are of the sort ordinarily performed by what we understand as political rather than judicial action. The process

137 See Parker v. McLain, 237 U. S. 469 (1915); Gasquet v. Lapeyre, 242 U. S. 367 (1917).

138 In this event, the disposal of Luther v. Borden by affirmance of the judgment of the circuit court may be explained by the fact that the issue presented was as to which was the government of Rhode Island, in the answering of which question the guaranty of a republican form of government was but one of several considerations.

of legislation is assertion, not decision; foreign affairs are conducted by negotiations, not by pleading and proof; political integrity is maintained by diplomacy or arms, not by injunctions. (c) From another aspect, these powers and duties relate, not to the ordinary matters of law which form the main bulk of controversy between private persons, not to the incidence of the police power upon the workaday world, but to the maintenance, furtherance, and functioning of government, to the exigencies of the state's existence, external and internal. (d) In every instance where a question of fact is to be decided, it is one which the persons executing the power or performing the duty must decide as the very basis of their own not merely ministerial conduct. (e) In those matters which relate to foreign affairs and to military action abroad and at home, the circumstances will often be such as to leave no chance to await the result of test litigation, while the consequences of the action may be so farreaching that any uncertainty as to its validity becomes intolerable. (f) Other practical considerations come to the fore, which we cannot assume were not adverted to by the framers of the Constitution and which are indicated upon the face of that instrument itself. Unity; certainty; respect and orderliness; efficiency; all are desiderata.

In the interpretative process which through a noting of these characteristics reaches the actual results of the decisions, it is fairly apparent what part the views of the judges as to "expediency" play. They must assume that the Constitution was intended to be a serviceable instrument, and to some extent read in their own views of serviceability where the instrument does not with unmistakable plainness indicate what notions of expediency it intends to further. There is more or less room for this reading-in process according as the constitutional indications are less, or more, exact and logically inescapable. The contentions that in any of the cases discussed the courts have entertained detached considerations of expediency to any greater degree than this, or that they have not followed to the best of their ability the plain trend of the Constitution itself, are not tenable and find no support in the decisions.139

139 Mr. Finkelstein, however, says: "No matter in what terms the opinions of jurists have been couched, it is apparent that it is the fear of consequences or

Admitting some analogies, therefore, it is yet a far cry from these cases to those involving the constitutionality of "social legislation." We must assume that the Fifth Amendment was intended to be a real protection to the individual and not a solemn sham. The adoption of the Constitution was obtained only by the promise of it and of its fellows in the Bill of Rights. And the Fourteenth Amendment was drawn in conscious similitude to the Fifth. They are a protection for minorities and do not require the individual to stand or fall by his ability to influence the course of legislation. And in the way in which the need of this protection actually arises there seem to be no natural protectors but the courts. Takings of life, liberty, or property are usually committed by a few men upon a few of their fellow citizens, the former asserting the right to do so. These acts are cognizable in regular ways by the courts. The takers justify perhaps under a statute which categorically supports them, and which usually has nothing to do with the existence or integrity of government itself, but rather enforces some conception of the duties of the private man to his neighbor. It conflicts, we will assume unquestionably, with one of the amendments just referred to. It is a challenge to the constitutional protection. The court is instituted to give the remedies of prevention and compensation in appropriate cases. It enjoins the taking or calls upon the takers to make restitution. Contrast this protection with that afforded if the court blindly enforces the statute, saying to the victim, "The conformity or nonconformity of this item of legislation with the Constitution is a 'political question."" He turns to Congress or the president for relief and asks for the only things they have power to give him. Consider the possibilities: an executive order, enforced if need be by soldiery; a special enactment giving compensation out of the federal treasury; the unseating of senators and representatives, if the offending statute be that of a state; perhaps others. All these must promptly be denied him or else the business of government becomes complicated and cluttered almost beyond belief. And what authority is there for remitting him to this

the lack of adequate data that has impelled the courts to refrain from entering upon the discussion of the merits of prickly issues." 37 HARV. L. REV. at 363.

state of affairs? Massachusetts v. Mellon is the only case dealing with anything like a police power regulation, and there the plaintiff commonwealth sought relief against the invasion of its public character, and the plaintiff taxpayer was held too remotely affected to have a standing to complain. Commercial Trust Co. v. Miller has already been sufficiently distinguished. Nor does it make the cause the least bit different to speak of the particular statute as "social legislation." Presumably all legislation is concerned with some aspect of the common good, based upon some philosophy of what that good is. The conformity of the statute with the Constitution is a generically identical question in all cases. A policy has been formulated in the statute, and it may be conceded that this process is in essence the exercise of "political wisdom," and is " political action" as well. Similarly, a policy has been formulated in the Constitution. It may be of the essence of "political wisdom in that sense in which all law is political wisdom to perceive whether these policies are in conflict, and, when a conflict is found, to enforce in the given cause the superior law. It certainly is not "political action.”

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Of course this discussion assumes the existence of a state of order in which the mandates of courts are customarily obeyed, and of course if that state of order does not exist a wholly different type of action must be had to restore it. It ought also to be said that the writer is not attempting to discuss the intrinsic desirability of the Fifth and Fourteenth Amendments themselves, nor their proper interpretation or scope.14 140 They are there, and

140 Into the formation of the conclusion that the Fifth and Fourteenth Amendments are guaranties of "Freedom from arbitrary or wanton interference, and (2) protection against spoliation of property argument of Mr. Frankfurter in Adkins v. Children's Hospital, 261 U. S. 525, 531 (1923)—there may enter the thought that, as these amendments were intended to be enforced by the courts, and as it would be difficult for the judicial process to appraise the values involved in many items of legislation, therefore there was intended to be laid down by the amendments no restriction upon legislative activity broader than the quoted definition. But that is a matter to be considered in connection with the historical backgrounds of the amendments, etc., etc., in arriving at a proper construction of their terms. And when that construction is once arrived at, the courts cannot upon the basis of these "political question " cases decline to test the constitutionality of legislation by the measure which that construction, whatever it may be, lays down.