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Baker v. Carr, 369 U.S. 186

Supreme Court of the United States






The Role of the Supreme Court in the Constitutional Order




Case or Controversy Requirement and the Passive Virtues

Quick Notes

Tennessee voters seek a reapportionment of state assembly distrcts.  The districts have not been reapportioned since 1901. 

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0



o         Whether the equal protection clause complaining of a mal-apportionment of a state assembly constitutes a nonjusticiable political question, which the federal courts may not address?  No.  This challenge to apportionment presents no non-justiciable political question.








o         Reversed and Remanded




Key Phrases




Party Description

o          Voters in Tennessee brought suit challenging a provision in 1901 that apportioned the members of the state General Assembly among the states ninety five counties.

o         Unser the 1901 standard, representation had been allocated among counties in accordance with the number of qualified voters in each county.

o         By 1961 the legislative districts contains dramatically different numbers of people.

o         The Pl - claimed that their voting power was unconstitutionally diluted by the continued use of the 1901 apportionment.


o         No.  This challenge to apportionment presents no non-justiciable political question.

o         The case does not rest upon the Guarantee clause.


o         In guarantee clause and political questions cases there is a relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciarys relationship to the States, which gives rise to the political question.


Nonjusticiable Political Question

o         The complaints can involve no federal constitutional right except one resting on the guaranty of a republican form of government, and that complaints based on that clause have been held to present political questions which are nonjusticiable.

o         The nonjusticiability of a political question is primarily a function of the separation of powers.


Several formulation of nonjusticiability

o         It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question,

o         Each has one or more elements which identify it as essentially a function of the separation of powers.


Political Question Circumstances

1.     Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; (in other words, A constitutionally assigned duty or power to a branch of government) or

2.     A lack of judicially discoverable and manageable standards for resolving the question; or

3.     The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or

4.     The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or

5.     An unusual need for unquestioning adherence to a political decision already made; or

6.     The potentiality of embarrassment from multifarious [various] pronouncements by various departments on one question.


Guarantee Clause Claim

o         A clause in Article IV, Section 4, providing that the United States shall guarantee to every State in this Union A Republican Form of Government.


Court Guarantee Clause Claim

o         Guarantee Clause claims involve the elements which define a political questions, and for that reason and not other, they are nonjusticiable.


Luther v. Borden

o         An action for damages for trespass.

o         State agents admitting to breaking and entering.

o         The State was then under martial law to defend itself from active insurrection; that the plaintiff was engaged in that insurrection; and that they entered under orders to arrest the plaintiff.

o         The lower court's refus[ed] to receive evidence or hear argument on that issue.


Chief Justice Taney's

o         He argued that the defendants were justified on the laws of the State, and the federal courts had to follow the states courts decisions, UNLESS there was a federal constitutional ground for overturning them.


Justice Taneys Guarantee Clause Argument

o         The Guarantee Clause is not a depository of judicially manageable standards that a court could independently utilize to identify a states lawful government.


(1)   If a court were to hold the defendants' acts unjustified because the charter government had no legal existence during the period in question, it would follow that all of that government's actions -- laws enacted, taxes collected, salaries paid, accounts settled, sentences passed -- were of no effect; and that "the officers who carried their decisions into operation [were] answerable as trespassers, if not in some cases as criminals."  A decision for the plaintiff would inevitably have produced some significant measure of chaos.

(2)   No state court had recognized as a judicial responsibility settlement of the issue of the locus [place] of state governmental authority.

(3)   Since "the question relates, altogether, to the constitution and laws of [the] . . . State," the courts of the United States had to follow the state courts' decisions unless there was a federal constitutional ground for overturning them.

(4)   No provision of the Constitution could be or had been invoked for this purpose except Art. IV, 4, the Guaranty Clause.

a.     Having already noted the absence of standards whereby the choice between governments could be made by a court acting independently, Chief Justice Taney now found further textual and practical reasons for concluding that, if any department of the United States was empowered by the Guaranty Clause to resolve the issue, it was not the judiciary.


Court Guarantee Clause

o         Might conceivably added a claim.

o         But because any reliance on the Guaranty Clause could not have succeeded it does not follow that appellants may not be heard on the equal protection claim which in fact they tender.


Reversed and Remanded


DISSENT Justice Frankfurter

o         The present case involves all of the elements that have made the Guaranty Clause case nonjusticiable.

o         The Guarantee Clause is masquerading under a equal protection label.

o         Apportionment is exceedingly complex, and does not lend itself to judicial determination.

o         It would add a great deal of friction to federal-state relations to involve the federal judiciary in this process.



Equal Protection Clause

o         A Fourteenth Amendment clause providing that person under the same circumstances shall be afforded the same constitutional rights.


Guarantee Clause

o         A clause in Article IV, Section 4, providing that the United States shall guarantee to every State in this Union a Republican Form of Government.


Rule of Law

o         The Guarantee Clause may not be used as a source of constitutional standard for invalidating state action, but an equal protection claim may be so used where it does not implicate a political question.


Class Notes