The Political Theory And Influence In The Constitutional Review Of The United States

Political question doctrine originates from Marbury v. Madison case. However, the very first case of political question doctrine in the real sense is Luther v. Bordencase, which applied relevant theories about political questions and has a profound influence on the development of political question doctrine and relevantpractice. Political question doctrine, the outcome of separation of powers and the game of power, requires the judiciary to fully respect other departments and notto interrupt when hearing fundamentally political cases, meanwhile, maintain absolute control over nonpolitical ones. Scholars have no unanimous agreement on the range of political question doctrine. The range mainly includes7types of issues:guarantee clause of a republican form of government, mode of amending federal Constitution, Congress proceeding self-discipline and legislative procedure, apportionment of Congressional districts, military or war affairs, foreign or international affairs, and impeachment. On the basis of the above classification and Justice Brennan’s judgment, Brennan Test, which meant a certain standard for political question judgement but was still with unclear framework, uncertain evidence, and undetermined range limited by the academic level and social background of the day. Therefore, the author inclines to judge a case from three aspects with functional standards, which meet the development of the era, on the basis of Brennan Test:whether it is difficult when searching for relevant information to disputed cases or not; whether the settlement of disputed cases may cause delay or hindrance or petrifaction or not; whether the settlement of disputed cases may influence the execution of authorities of other political departments. Through the discussions on Brennan Test and functional standards, it can be easily found that political question doctrine is developing and updating all the time, which isembodied by the development of judgment standards and the application by other countries and districts, mainly,"public power immunity from court investigation" in Germany,"act of state theory" in Britain,"act of governing" in Japan,"act of government" in France,"not accept cases with highly political nature" in Mainland China,"not explain on political questions" in Taiwan, China, and "settle political issues through political ways" in Hong Kong, China. By analyzing theories of othercountries and districts, we can find that there exists problems and defects in political question doctrine, namely, lacking consistent standards, difficult in logic, and unclear constitutional bases. The theory America political issues, has profound America capitalist class attribute.The purpose is to maintain the political power of the country and the interests of the state. It has a strong Western color. But for such a theory, has a great reference significance for China. The first is a highly political significance to clear the constitution, followed by the Constitution in the process of application of leeway, finally is through the development of the theory of political question to safeguard national security and sovereignty independence.