Not exactly a question of politics

The words seem to make perfect sense.

Political question. A question of politics. For it or against it? Federalist or Whig?

And because the words seem to make perfect sense, they stumped reader Dan from South Carolina.

“I have a very small but well documented piece of my ancestry that is Cherokee,” Dan wrote. “And I am interested in the court case that the Cherokee brought against Georgia to try to force Georgia to recognize their rights and their lands.”

He found a great resource about the case on Google Books, but couldn’t quite understand some of the references to legal arguments. “One that really stumps me is this,” he said. “Everybody seems to be arguing about rights being a political question so the court can’t act. I don’t get what politics has to do with what courts can do.”

Dan has come up against one of those terms that only the lawyer can love: simple words used to express a very complicated concept.

First: the case Dan is describing. In December 1830, John Ross, principal chief of the Cherokee Nation, notified the State of Georgia that the Cherokee Nation intended to ask the United States Supreme Court to order Georgia to stop enforcing any state law that impacted the Cherokee within its borders.¹

In the Court’s opinion, the issue was described this way:

This bill is brought by the Cherokee Nation, praying an injunction to restrain the State of Georgia from the execution of certain laws of that State which, as is alleged, go directly to annihilate the Cherokees as a political society and to seize, for the use of Georgia, the lands of the Nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force.

If Courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands by successive treaties, each of which contains a solemn guarantee of the residue, until they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence. To preserve this remnant, the present application is made.²

But the problem that Dan is struggling with is the one Chief Justice John Marshall, writing for the Court, turned to first: “Before we can look into the merits of the case, a preliminary inquiry presents itself. Has this Court jurisdiction of the cause?”³

Jurisdiction here means the power to act — to hear a case and decide the issues it raises.⁴

And the Court ultimately came to the conclusion that the tribe didn’t have the right to sue in the courts, because it was “not a foreign state in the sense of the Constitution.”⁵

But the arguments in the book Dan found — a complete report of the case with supporting documents, written by the Supreme Court Reporter Richard Peters — and even the language of the Court’s opinion suggest that one big obstacle to the Court’s deciding the real issues in the case was that the case presented a political question.

Both of the lawyers arguing to the Court wanted a decision on the merits of the dispute. The Cherokee, argued the lawyer for Georgia, “do not present a political question.”⁶ And the attorney for the Cherokee agreed: “the circumstance of a right in controversy, growing out of a treaty does not make that controversy a political … question…”⁷

The Court didn’t buy it. Although it didn’t rest its opinion on that basis, the opinion commented: “the Court is asked to do more than decide on the title (to Cherokee land). The bill requires us to control the Legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the Court may be well questioned. It savours too much of the exercise of political power to be within the proper province of the judicial department.”⁸

And therein lies the rub, and the meaning of the term political question. It doesn’t have anything directly to do with one party against another or votes at the ballot box. In this context — and you’ll come across it, as Dan did, in many court opinions — it means a limit on the power of the courts to act.

As explained by Black in his law dictionary, political questions are “questions of which the courts of justice will refuse to take cognizance, or to decide, on account of their purely political character, or because their determination would involve an encroachment upon the executive or legislative powers; e.g., what sort of government exists in a state, whether peace or war exists, whether a foreign country has become an independent state, etc.”⁹

The Cherokee Nation’s right to land wasn’t the only case where the Court refused to decide a case because of what’s known as the political question doctrine. It first came up in Marbury v. Madison, the seminal case establishing the right of the Supreme Court to review the constitutionality of acts of the other branches of government. There, even while asserting its authority, the Court said:

The province of the court is, solely, to decide on the rights of individuals, not to enquire 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.¹⁰

That opinion was written by the same Chief Justice Marshall who authored the Cherokee Nation v. Georgia opinion more than a quarter century later.

Other examples:

In 1847, the Court declined to get into a discussion of the validity of slavery, holding that was a political question, settled by each State for itself.¹¹

In 1849, the Court refused to get involved in a case arising out of the Dorr Rebellion in Rhode Island, concluding that which state government was the lawfully established government was up to the state, not federal courts.¹²

In 1918, the Court refused to let a state court decide a case involving seizure of property in Mexico. It held that the “conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative — ‘the political’ — departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.”¹³

And as recently as 1993, the Court decided not to get involved in issues surrounding the impeachment of former federal judge Walter Nixon on the grounds that the validity of the Congressional action was a political question.¹⁴

So what was the upshot of the case that has Dan baffled?

One of the ugliest episodes of American history.

Without the intervention of the Supreme Court, the Cherokee Nation had no more arrows in its quiver.

And the Cherokee — like the Choctaw, the Seminole, the Creek and the Chickasaw before them — were sent down the Trail of Tears.¹⁵

SOURCES