Appeal from the District Court of the United States for the Southern District of Illinois.

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          Messrs. Homer S. Cummings, Atty. Gen., and Brien McMahon, Asst. Atty. Gen., for appellant.

          Mr. George N. Murdock, of Chicago, Ill., for appellee.

           Mr. Justice STONE delivered the opinion of the Court.

          The question for decision is whether the 'Filled Milk Act' of Congress of March 4, 1923, c. 262, 42 Stat. 1486, 21 U.S.C. §§ 61 63, 21 U.S.C.A. § 61—63,¹ which prohibits the shipment in

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interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream, transcends the power of Congress to regulate interstate commerce or infringes the Fifth Amendment.

          Appellee was indicted in the District Court for Southern Illinois for violation of the act by the shipment in interstate commerce of certain packages of 'Milnut,' a compound of condensed skimmed milk and coconut oil made in imitation or semblance of condensed milk or cream. The indictment states, in the words of the statute, section 2, 21 U.S.C.A. § 62, that Milnut 'is an adulterated article of food, injurious to the public health,' and that it is not a prepared food product of the type excepted from the prohibition of the act. The trial court sustained a demurrer to the indictment on the authority of an earlier case in the same court, United States v. Carolene Products Co., D.C., 7 F.Supp. 500. The case was brought here on appeal under the Criminal Appeals Act of March 2, 1907, 34 Stat. 1246, 18 U.S.C. § 682, 18 U.S.C.A. § 682. The Court of Appeals for the Seventh Circuit has meanwhile, in another case, upheld the Filled Milk Act as an appropriate exercise of the commerce power in Carolene Products Co. v. Evaporated Milk Ass'n, 7 Cir., 93 F.2d 202.

          Appellee assails the statute as beyond the power of Congress over interstate commerce, and hence an invasion of a field of action said to be reserved to the states by the Tenth Amendment. Appellee also complains that the

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statute denies to it equal protection of the laws, and in violation of the Fifth Amendment, deprives it of its property without due process of law, particularly in that the statute purports to make binding and conclusive upon appellee the legislative declaration that appellee's product 'is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud on the public.'

          First. The power to regulate commerce is the power 'to prescribe the rule by which commerce is to be governed,' Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L.Ed. 23, and extends to the prohibition of shipments in such commerce. Reid v. Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108; Lottery Case, Champion v. Ames, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492; United States v. Delaware & Hudson Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836; Hoke v. United States, 277 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, 43 L.R.A.,N.S., 906, Ann.Cas.1913E, 905; Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845; United States v. Hill, 248 U.S. 420, 39 S.Ct. 143, 63 L.Ed. 337; McCormick & Co., Inc. v. Brown, 286 U.S. 131, 52 S.Ct. 522, 76 L.Ed. 1017, 87 A.L.R. 448. The power 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.' Gibbons v. Ogden, supra, 9 Wheat, 1, 196, 6 L.Ed. 23. Hence Congress is free to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injurious to the public health, morals, or welfare, Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364; Hoke v. United States, supra, or which contravene the policy of the state of their destination, Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 57 S.Ct. 277, 81 L.Ed. 270. Such regulation is not a forbidden invasion of state power either because its motive or its consequence is to restrict the use of articles of commerce within the states of destination, and is not prohibited unless by the due process clause of the Fifth Amendment. And it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. Seven Cases v. United States, 239 U.S. 510, 514, 36 S.Ct. 190, 60 L.Ed. 411, L.R.A.1916D, 164; Hamilton v. Kentucky

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Distilleries & Warehouse Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194. The prohibition of the shipment of filled milk in interstate commerce is a permissible regulation of commerce, subject only to the restrictions of the Fifth Amendment.

          Second. The prohibition of shipment of appellee's product in interstate commerce does not infringe the Fifth Amendment. Twenty years ago this Court, in Hebe Co. v. Shaw, 248 U.S. 297, 39 S.Ct. 125, 63 L.Ed. 255, held that a state law which forbids the manufacture and sale of a product assumed to be wholesome and nutritive, made of condensed skimmed milk, compounded with coconut oil, is not forbidden by the Fourteenth Amendment. The power of the Legislature to secure a minimum of particular nutritive elements in a widely used article of food and to protect the public from fraudulent substitutions, was not doubted; and the Court thought that there was ample scope for the legislative judgment that prohibition of the offending article was an appropriate means of preventing injury to the public.

          We see no persuasive reason for departing from that ruling here, where the Fifth Amendment is concerned; and since none is suggested, we might rest decision wholly on the presumption of constitutionality. But affirmative evidence also sustains the statute. In twenty years evidence has steadily accumulated of the danger to the public health from the general consumption of foods which have been stripped of elements essential to the maintenance of health. The Filled Milk Act was adopted by Congress after committee hearings, in the course of which eminent scientists and health experts testified. An extensive investigation was made of the commerce in milk compounds in which vegetable oils have been substituted for natural milk fat, and of the effect upon the public health of the use of such compounds as a food substitute for milk. The conclusions drawn from evidence presented at the hearings were embodied in reports of the

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House Committee on Agriculture, H.R. No. 365, 67th Cong., 1st Sess., and the Senate Committee on Agriculture and Forestry, Sen.Rep. No. 987, 67th Cong., 4th Sess. Both committees concluded, as the statute itself declares, that the use of filled milk as a substitute for pure milk is generally injurious to health and facilitates fraud on the public.²

          There is nothing in the Constitution which compels a Legislature, either national or state, to ignore such evidence, nor need it disregard the other evidence which amply supports the conclusions of the Congressional committees that the danger is greatly enhanced where an inferior product, like appellee's, is indistinguishable from

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a valuable food of almost universal use, thus making fraudulent distribution easy and protection of the consumer difficult.³

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            Here the prohibition of the statute is inoperative unless the product is 'in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed.' Section 1(c), 21 U.S.C.A. § 61(c). Whether in such circumstance the public would be adequately protected by the prohibition of false labels and false branding imposed by the Pure Food and Drugs Act, 21 U.S.C.A. § 1 et seq., or whether it was necessary to go farther and prohibit a substitute food product thought to be injurious to health if used as a substitute when the two are not distinguishable, was a matter for the legislative judgment and not that of courts. Hebe Co. v. Shaw, supra; South Carolina State Highway Department v. Barnwell Bros. Inc., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734, decided February 14, 1938. It was upon this ground that the prohibition of the sale of oleomargarine made in imitation of butter was held not to infringe the Fourteenth Amendment in Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253; Capital City Dairy Co. v. Ohio, 183 U.S. 238, 22 S.Ct. 120, 46 L.Ed. 171. Compare McCray v. United States, 195 U.S. 27, 63, 24 S.Ct. 769, 49 L.Ed. 78, 1 Ann.Cas. 561; Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 33 S.Ct. 44, 57 L.Ed. 184.

          Appellee raises no valid objection to the present statute by arguing that its prohibition has not been extended to oleomargarine or other butter substitutes in which vegetable fats or oils are substituted for butter fat. The Fifth Amendment has no equal protection clause, and even that of the Fourteenth, applicable only to the states, does not compel their Legislatures to prohibit all like evils, or none. A Legislature may hit at an abuse which it has found, even though it has failed to strike at another. Central Lumber Co. v. South Dakota, 226 U.S. 157, 160, 33 S.Ct. 66, 57 L.Ed. 164; Miller v. Wilson, 236 U.S. 373, 384, 35 S.Ct. 342, 59 L.Ed. 628, L.R.A.1915F, 829; Hall v. Geiger-Jones Co., 242 U.S. 539, 556, 37 S.Ct. 217, 61 L.Ed. 480, L.R.A.1917F, 514, Ann.Cas.1917C, 643; Farmers' & Merchants' Bank v. Federal Reserve Bank, 262 U.S. 649, 661, 43 S.Ct. 651, 656, 67 L.Ed. 1157, 30 A.L.R. 635.

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          Third. We may assume for present purposes that no pronouncement of a Legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act, and that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty, or property had a rational basis.

          But such we think is not the purpose or construction of the statutory characterization of filled milk as injurious to health and as a fraud upon the public. There is no need to consider it here as more than a declaration of the legislative findings deemed to support and justify the action taken as a constitutional exertion of the legislative power, aiding informed judicial review, as do the reports of legislative committees, by revealing the rationale of the legislation. Even in the absence of such aids, the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.⁴ See Metropolitan Casualty Ins. Co. v.

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Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070, and cases cited, The present statutory findings affect appellee no more than the reports of the Congressional committees and since in the absence of the statutory findings they would be presumed, their incorporation in the statute is no more prejudicial than surplusage.

          Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry, Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281, and the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist. Chastleton Corporation v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841. Similarly we recognize that the constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a partic-

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ular article is without support in reason because the article, although within the prohibited class, is so different from others of the class as to be without the reason for the prohibition, Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 349, 351, 352, 55 S.Ct. 758, 762, 763, 79 L.Ed. 1468, see Whitney v. California, 274 U.S. 357, 379, 47 S.Ct. 641, 71 L.Ed. 1095; cf. Morf v. Bingaman, 298 U.S. 407, 413, 56 S.Ct. 756, 759, 80 L.Ed. 1245, though the effect of such proof depends on the relevant circumstances of each case, as for example the administrative difficulty of excluding the article from the regulated class. Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 511, 512, 57 S.Ct. 868, 873, 81 L.Ed. 1245, 109 A.L.R. 1327; South Carolina State Highway Department v. Barnwell Bros., Inc., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734, decided February 14, 1938. But by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. Here the demurrer challenges the validity of the statute on its face and it is evident from all the considerations presented to Congress, and those of which we may take judicial notice, that the question is at least debatable whether commerce in filled milk should be left unregulated, or in some measure restricted, or wholly prohibited. As that decision was for Congress, neither the finding of a court arrived at by weighing the evidence, nor the verdict of a jury can be substituted for it. Price v. Illinois, 238 U.S. 446, 452, 35 S.Ct. 892, 59 L.Ed. 1400; Hebe Co. v. Shaw, supra, 248 U.S. 297, 303, 39 S.Ct. 125, 63 L.Ed. 255; Standard Oil Co. v. Marysville, 279 U.S. 582, 584, 49 S.Ct. 430, 431, 73 L.Ed. 856; South Carolina v. Barnwell Bros., Inc., supra, citing Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268.

          The prohibition of shipment in interstate commerce of appellee's product, as described in the indictment, is a constitutional exercise of the power to regulate interstate commerce. As the statute is not unconstitutional on its face, the demurrer should have been overruled and the judgment will be reversed.

          Reversed.

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          Mr. Justice BLACK concurs in the result and in all of the opinion except the part marked 'Third.'

          Mr. Justice McREYNOLDS thinks that the judgment should be affirmed.

          Mr. Justice CARDOZO and Mr. Justice REED took no part in the consideration or decision of this case.

           Mr. Justice BUTLER.

          I concur in the result. Prima facie the facts alleged in the indictment are sufficient to constitute a violation of the statute. But they are not sufficient conclusively to establish guilt of the accused. At the trial it may introduce evidence to show that the declaration of the act that the described product is injurious to public health and that the sale of it is a fraud upon the public are without any substantial foundation. Mobile, J. & K.C.R.R. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas.1912A, 463; Manley v. Georgia, 279 U.S. 1, 6, 49 S.Ct. 215, 217, 73 L.Ed. 575. The provisions on which the indictment rests should if possible be construed to avoid the serious question of constitutionality. Federal Trade Comm. v. Amer. Tobacco Co., 264 U.S. 298, 307, 44 S.Ct. 336, 337, 68 L.Ed. 696, 32 A.L.R. 786; Panama R.R. Co. v. Johnson, 264 U.S. 375, 390, 44 S.Ct. 391, 395, 68 L.Ed. 748; Missouri Pac. R.R. v. Boone, 270 U.S. 466, 472, 46 S.Ct. 341, 343, 70 L.Ed. 688; Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 346, 48 S.Ct. 194, 198, 72 L.Ed. 303. If construed to exclude from interstate commerce wholesome food products that demonstrably are neither injurious to health nor calculated to deceive, they are repugnant to the Fifth Amendment. Weaver v. Palmer Bros. Co., 270 U.S. 402, 412, 413, 46 S.Ct. 320, 322, 70 L.Ed. 654. See People v. Carolene Products Co., 345 Ill. 166, 177 N.E. 698. Carolene Products Co. v. McLaughlin, 365 Ill. 62, 5 N.E.2d 447; Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N.W. 608. Carolene Products Co. v. Banning, 131 Neb. 429, 268 N.W. 313. The allegation of the indictment that Milnut 'is an adulterated article of food, injurious to the public health,' tenders an issue of fact to be determined upon evidence.

^{1 The relevant portions of the statute are as follows:}

'Section 61. * * * (c) The term 'filled milk' means any milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, Powdered, dried, or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated.'

'§ 62. * * * It is declared that filled milk, as herein defined, is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public. It shall be unlawful for any person to * * * ship or deliver for shipment in interstate or foreign commerce, any filled milk.'

Section 63 imposes as penalties for violations 'a fine of not more than $1,000 or imprisonment of not more than one year, or both.'

² The reports may be summarized as follows: There is an extensive commerce in milk compounds made of condensed milk from which the butter fat has been extracted and an equivalent amount of vegetable oil, usually coconut oil, substituted. These compounds resemble milk in taste and appearance and are distributed in packages resembling those in which pure condensed milk is distributed. By reason of the extraction of the natural milk fat the compounded product can be manufactured and sold at a lower cost then pure milk. Butter fat, which constitutes an important part of the food value of pure milk, is rich in vitamins, food elements which are essential to proper nutrition, and are wanting in vegetable oils. The use of filled milk as a dietary substitute for pure milk results, especially in the case of children, in undernourishment, and induces diseases which attend malnutrition. Despite compliance with the branding and labeling requirements of the Pure Food and Drugs Act, 21 U.S.C.A. § 1 et seq., there is widespread use of filled milk as a food substitute for pure milk. This is aided by their identical taste and appearance, by the similarity of the containers in which they are sold, by the practice of dealers in offering the inferior product to customers as being as good as or better than pure condensed milk sold at a higher price, by customers' ignorance of the respective food values of the two products, and in many sections of the country by their inability to read the labels placed on the containers. Large amounts of filled milk, much of it shipped and sold in bulk, are purchased by hotels and boarding houses, and by manufactures of food products, such as ice cream, to whose customers labeling restrictions afford no protection.

³ There is now an extensive literature indicating wide recognition by scientists and dietitians of the great importance to the public health of butter fat and whole milk as the prime source of vitamins, which are essential growth producing and disease preventing elements in the diet. See Dr. Henry C. Sherman, The Meaning of Vitamin A, in Science, Dec. 21, 1928, p. 619; Dr. E. V. McCollum et al., The Newer Knowledge of Nutrition, 1929 Ed., pp. 134, 170, 176, 177; Dr. A. S. Root, Food Vitamins (N. Car. State Board of Health, May, 1931), p. 2; Dr. Henry C. Sherman, Chemistry of Food and Nutrition (1932), p. 367; Dr. Mary S. Rose, The Foundations of Nutrition. 1933, p. 237.

When the Filled Milk Act was passed, eleven states had rigidly controlled the exploitation of filled milk, or forbidden it altogether. H.R. 365, 67th Cong., 1st Sess. Some thirty-five states have now adopted laws which in terms, or by their operation, prohibit the sale of filled milk, Ala.Agri.Code 1927, § 51, art. 8; Ariz.Rev.Code Supp.1936, § 943Y; Pope's Ark.Dig.1937, § 3103; Deering's Cal.Code, 1933 Supp., tit. 149, Act 1943, p. 1302; Conn.Gen.Stat.1930, § 2487, c. 135; Del.Rev.Code 1935, § 647; Fla.Comp.Gen.Laws 1927, §§ 3216, 7676; Ga.Code 1933, § 42-511; Idaho Code 1932, §§ 36-502 to 36-504; Smith-Hurd Stats.Ill. c. 56 1/2, 19c—19e; Jones Ill.Stat.Ann., 1937 Supp. § 53.020(1), (2), (3); Burns' Ind.Stat.1933, § 35-1203; Iowa Code 1935, § 3062; Kan.Gen.Stat.1935, 65-707; Md.Ann.Code, art. 27, § 281; Mass.Ann.Laws, 1933, c. 94, § 17A; Mich.Comp.Laws 1929, § 5358; Mason's Minn.Stat.1927, § 3926; Mo.Rev.Stat.1929, §§ 12408 12413, Mo.St.Ann. §§ 12408—12413, pp. 404—406; Mont.Rev.Code, Anderson and McFarland, 1935, c. 240, § 2620.39; Neb.Comp.Stat.1929, § 81-1022; N.H.Pub.Laws 1926, v. 1, c. 163, § 37, p. 619; R.S.1937, 24:10—92, N.J.Comp.Stat.1911—1924, § 81—8j, p. 1400; N.Y.Cons.Laws 1930, Agriculture and Markets Law, § 60, c. 1, Consol.Laws, c. 69; N.D.Comp.Laws, 1913—1925, c. 38, § 2855(a) 1; Page's Ohio Gen.Code, § 12725; Purdon's Penna.Stat. tit. 31, §§ 553, 582; S.D.Comp.Laws, 1929, c. 192, § 7926-0, p. 2493; Williams Tenn.Code, 1934, c. 15, §§ 6549, 6551; Vernon's Tex.Pen.Code, tit. 12, c. 2, art. 713a, pp. 20, 21; Utah Rev.Stat.1933, 3-10-59, 3-10-60; Vt.Pub.L.1933, tit. 34, c. 303, § 7724, p. 1288; Va.1936 Code, § 1197c; W.Va. 1932 Code, § 2036; Wis.Stat., 11th Ed. 1931, c. 98, § 98.07, p. 1156; cf. N.Mex.Ann.Stat., 1929, §§ 125-104, 125-108. Three others have subjected its sale to rigid regulations. Colo.L.1921, c. 30, § 1007, p. 440; Or.1930, Code, v. 2, c. 12, § 41-1208 to 41-1210, p. 3281; Remington's Wash.Rev.Stat., v. 7, tit. 40, c. 13, §§ 6206, 6207, 6213, 6214, pp. 360—363.

⁴ There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369, 370, 51 S.Ct. 532, 535, 536, 75 L.Ed. 1117, 73 A.L.R. 1484; Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, decided March 28, 1938.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458; on restraints upon the dissemination of information, see Near v. Minnesota, 283 U.S. 697, 713—714, 718—720, 722, 51 S.Ct. 625, 630, 632, 633, 75 L.Ed. 1357; Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117, 73 A.L.R. 1484; Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108; Whitney v. California, 274 U.S. 357, 373—378, 47 S.Ct. 641, 647, 649, 71 L.Ed. 1095; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 69 L.Ed. 1138; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468, or national, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446; Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047; Farrington v. Tokushige, 273 U.S. 284, 47 S.Ct. 406, 71 L.Ed. 646, or racial minorities. Nixon v. Herndon, supra; Nixon v. Condon, supra; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428, 4 L.Ed. 579; South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734, decided February 14, 1938, note 2, and cases cited.

LUJAN, SECRETARY OF THE INTERIOR v. DEFENDERS OF WILDLIFE et al.

No. 90-1424.

Argued December 3, 1991

Decided June 12, 1992

*556Scalia, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, in which Rehnquist, C. J., and White, Kennedy, Soutek, and Thomas, 33., joined, and an opinion with respect to Part III-B, in which Rehnquist, C. J., and White and Thomas, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Souter, J., joined, post, p. 579. Stevens, J., filed an opinion concurring in the judgment, post, *557p. 581. Blackmun, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 689.

Edwin S. Kneedler argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Robert L. Klarquist, David C. Shilton, Thomas L. Sansonetti, and Michael Young.

Brian B. O’Neill argued the cause for respondents. With him on the brief were Steven C. Schroer and Richard A. Duncan*

*

Terence P. Ross, Daniel J. Popeo, and Richard A Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the City of Austin et al. by William A Butler, Angus E. Crane, Michael J. Bean, Kenneth Oden, James M. McCormack, and Wm. Robert Irvin; for the American Association of Zoological Parks & Aquariums et al. by Ronald J. Greene and W. Hardy Callcott; for the American Institute of Biological Sciences by Richard J. Wertheimer and Charles M. Chambers; and for the Ecotrop-ica Foundation of Brazil et al. by Durwood J. Zaelke.

A brief of amici curiae was filed for the State of Texas et al. by Patrick J. Mahoney, Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Nancy N. Lynch, Mary Ruth Holder, and Shannon J. Kilgore, Assistant Attorneys General, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Daniel E. Lungren, Attorney General of California, Robert A Butterworth, Attorney General of Florida, Michael E. Carpenter, Attorney General of Maine, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Robert J. Del Tufo, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, Lee Fisher, Attorney General of Ohio, and Jeffrey L. Amestoy, Attorney General of Vermont, Victor A Kovner, Leonard J. Koerner, Neal M. Janey, and Louise H. Renne.

Justice Scalia

delivered the opinion of the Court with respect to Parts I, II, III-A, and IY, and an opinion with respect to Part III-B, in which The Chief Justice, Justice White, and Justice Thomas join.

This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting § 7 of the Endangered *558Species Act of 1973 (ESA), 87 Stat. 892, as amended, 16 U. S. C. § 1586, in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether respondents here, plaintiffs below, have standing to seek judicial review of the rule.

I

The ESA, 87 Stat. 884, as amended, 16 U. S. C. § 1531 et seq., seeks to protect species of animals against threats to their continuing existence caused by man. See generally TVA v. Hill, 437 U. S. 153 (1978). The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species. 16 U. S. C. §§ 1533, 1536. Section 7(a)(2) of the Act then provides, in pertinent part:

“Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modifica- . tion of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.” 16 U. S. C. § 1536(a)(2).

In 1978, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior, and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by § 7(a)(2) extend to actions taken in foreign nations. 43 Fed. Reg. 874 (1978). The next year, however, the Interior Department began to reexamine its position. Letter from Leo Kuliz, Solicitor, Department of the Interior, to Assistant Secretary, Fish and Wildlife and Parks, Aug. 8, 1979. A revised joint regulation, reinterpret*559ing § 7(a)(2) to require consultation only for actions taken in the United States or on the high seas, was proposed in 1983, 48 Fed. Reg. 29990, and promulgated in 1986, 61 Fed. Reg. 19926; 50 CFR 402.01 (1991).

Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of § 7(a)(2) and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation. The District Court granted the Secretary’s motion to dismiss for lack of standing. Defenders of Wildlife v. Hodel, 658 F. Supp. 43, 47-48 (Minn. 1987). The Court of Appeals for the Eighth Circuit reversed by a divided vote. Defenders of Wildlife v. Hodel, 851 F. 2d 1035 (1988). On remand, the Secretary moved for summary judgment on the standing issue, and respondents moved for summary judgment on the merits. The District Court denied the Secretary’s motion, on the ground that the Eighth Circuit had already determined the standing question in this case; it granted respondents’ merits motion, and ordered the Secretary to publish a revised regulation. Defenders of Wildlife v. Hodel, 707 F. Supp. 1082 (Minn. 1989). The Eighth Circuit affirmed. 911 F. 2d 117 (1990). We granted certiorari, 500 U. S. 915 (1991).

II

While the Constitution of the United States divides all power conferred upon the Federal Government into “legislative Powers,” Art. I, § 1, “[t]he executive Power,” Art. II, § 1, and “[t]he judicial Power,” Art. Ill, § 1, it does not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to “Cases” and “Controversies,” but an executive inquiry can bear the name “case” (the Hoffa case) and a legislative dispute can bear the name “controversy” (the Smoot-Hawley controversy). Obviously, then, the Constitution’s central mechanism of separation of powers de*560pends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts. In The Federalist No. 48, Madison expressed the view that “[i]t is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere,” whereas “the executive power [is] restrained within a narrower compass and . . . more simple in its nature,” and “the judiciary [is] described by landmarks still less uncertain.” The Federalist No. 48, p. 256 (Carey and McClellan eds. 1990). One of those landmarks, setting apart the “Cases” and “Controversies” that are of the justiciable sort referred to in Article III — “serving] to identify those disputes which are appropriately resolved through the judicial process,” Whitmore v. Arkansas, 495 U. S. 149, 155 (1990) — is the doctrine of standing. Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U. S. 737, 751 (1984).

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972);1 and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not. .. th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare *561Rights Organization, 426 U. S. 26, 41-42 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43.

The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U. S. 215, 231 (1990); Warth, supra, at 508. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U. S. 871, 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” National Wildlife Federation, supra, at 889. In response to a summary judgment motion, however, the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts,” Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be “supported adequately by the evidence adduced at trial.” Gladstone, supra, at 115, n. 31.

When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has *562caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction — and perhaps on the response of others as well. The existence of one or more of the essential elements of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” ASARCO Inc. v. Kadish, 490 U. S. 605, 615 (1989) (opinion of Kennedy, J.); see also Simon, supra, at 41-42; and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. E. g., Warth, supra, at 505. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily “substantially more difficult” to establish. Allen, supra, at 758; Simon, supra, at 44-45; Warth, supra, at 505.

Ill

We think the Court of Appeals failed to apply the foregoing principles in denying the Secretary’s motion for summary judgment. Respondents had not made the requisite demonstration of (at least) injury and redressability.

A

Respondents’ claim to injury is that the lack of consultation with respect to certain funded activities abroad “increases] the rate of extinction of endangered and threatened species.” Complaint ¶ 5, App. 13. Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of *563standing. See, e. g., Sierra Club v. Morton, 405 U. S., at 734. “But the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Id., at 734-735. To survive the Secretary’s summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents’ members would thereby be “directly” affected apart from their “ ‘special interest’ in th[e] subject.” Id., at 735, 739. See generally Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 343 (1977).

With respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders’ members— Joyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 1986 and “observed the traditional habitat of the endangered nile crocodile there and intend[s] to do so again, and hope[s] to observe the crocodile directly,” and that she “will suffer harm in fact as the result of [the] American ... role ... in overseeing the rehabilitation of the Aswan High Dam on the Nile . . . and [in] developing] . . . Egypt’s . . . Master Water Plan.” App. 101. Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and “observed th[e] habitat” of “endangered species such as the Asian elephant and the leopard” at what is now the site of the Mahaweli project funded by the Agency for International Development (AID), although she “was unable to see any of the endangered species”; “this development project,” she continued, “will seriously reduce endangered, threatened, and endemic species habitat including areas that I visited . . . [, which] may severely shorten the future of these species”; that threat, she concluded, harmed her because she “intend[s] to return to Sri Lanka in the future and hope[s] to be more fortunate in spotting at least the endangered elephant and leopard.” Id., at 145-146. When Ms. Skilbred was asked *564at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that “I intend to go back to Sri Lanka,” but confessed that she had no current plans: “I don’t know [when]. There is a civil war going on right now. I don’t know. Not next year, I will say. In the future.” Id., at 318.

We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed species — though that is questionable. They plainly contain no facts, however, showing how damage to the species will produce “imminent” injury to Mses. Kelly and Skilbred. That the women “had visited” the areas of the projects before the projects commenced proves nothing. As we have said in a related context, “‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief... if unaccompanied by any continuing, present adverse effects.’ ” Lyons, 461 U. S., at 102 (quoting O’Shea v. Littleton, 414 U. S. 488, 495-496 (1974)). And the affiants’ profession of an “inten[t]” to return to the places they had visited before — where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species — is simply not enough. Such “some day” intentions — without any description of concrete plans, or indeed even any specification of when the some day will be — do not support a finding of the “actual or imminent” injury that our cases require. See supra, at 560.2

*565Besides relying upon the Kelly and Skilbred affidavits, respondents propose a series of novel standing theories. The first, inelegantly styled “ecosystem nexus,” proposes that any person who uses any part of a “contiguous ecosystem” adversely affected by a funded activity has standing even if the activity is located a great distance away. This approach, as the Court of Appeals correctly observed, is inconsistent with our opinion in National Wildlife Federation, which held that a plaintiff claiming injury from environmental dam*566age must use the area affected by the challenged activity and not an area roughly “in the vicinity” of it. 497 U. S., at 887-889; see also Sierra Club, 405 U. S., at 735. It makes no difference that the general-purpose section of the ESA states that the Act was intended in part “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,” 16 U. S. C. § 1531(b). To say that the Act protects ecosystems is not to say that the Act creates (if it were possible) rights of action in persons who have not been injured in fact, that is, persons who use portions of an ecosystem not perceptibly affected by the unlawful action in question.

Respondents’ other theories are called, alas, the “animal nexus” approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the “vocational nexus” approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not “an ingenious academic exercise in the conceivable,” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 688 (1973), but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible — though it goes to the outermost limit of plausibility — to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that *567might have been the subject of his interest will no longer exist, see Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221, 281, n. 4 (1986). It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.3

*568B

Besides failing to show injury, respondents failed to demonstrate redressability. Instead of attacking the separate decisions to fund particular projects allegedly causing them harm, respondents chose to challenge a more generalized level of Government action (rules regarding consultation), the invalidation of which would affect all overseas projects. This programmatic approach has obvious practical advantages, but also obvious difficulties insofar as proof of causation or redressability is concerned. As we have said in another context, “suits challenging, not specifically identifiable Government violations of law, but the particular programs agencies establish to carry out their legal obligations . . . [are], even when premised on allegations of several instances of violations of law,... rarely if ever appropriate for federal-court adjudication.” Allen, 468 U. S., at 759-760.

The most obvious problem in the present case is redress-ability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents’ alleged injury unless the funding agencies were bound by the Secretary’s regulation, which is very much an open question. Whereas in other contexts the ESA is quite explicit as to the Secretary’s controlling authority, see, e. g., 16 U. S. C. § 1533(a)(1) (“The Secretary shall” promulgate regulations determining endangered species); § 1535(d)(1) (“The Secretary is authorized to provide financial assistance to any State”), with respect to consultation the initiative, and hence arguably the initial responsibility for determining statutory necessity, lies with *569the agencies, see § 1536(a)(2) (“Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any” funded action is not likely to jeopardize endangered or threatened species) (emphasis added). When the Secretary promulgated the regulation at issue here, he thought it was binding on the agencies, see 51 Fed. Reg. 19928 (1986). The Solicitor General, however, has repudiated that position here, and the agencies themselves apparently deny the Secretary’s authority. (During the period when the Secretary took the view that § 7(a)(2) did apply abroad, AID and FWS engaged in a running controversy over whether consultation was required with respect to the Mahaweli project, AID insisting that consultation applied only to domestic actions.)

Respondents assert that this legal uncertainty did not affect redressability (and hence standing) because the District Court itself could resolve the issue of the Secretary’s authority as a necessary part of its standing inquiry. Assuming that it is appropriate to resolve an issue of law such as this in connection with a threshold standing inquiry, resolution by the District Court would not have remedied respondents’ alleged injury anyway, because it would not have been binding upon the agencies. They were not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.4 The *570Court of Appeals tried to finesse this problem by simply proclaiming that “[w]e are satisfied that an injunction requiring the Secretary to publish [respondents’ desired] regulatio[n] . . . would result in consultation.” Defenders of Wildlife, 851 F. 2d, at 1042, 1043-1044. We do not know what would justify that confidence, particularly when the Justice Department (presumably after consultation with the agencies) has taken the position that the regulation is not binding.5 The *571short of the matter is that redress of the only injury in fact respondents complain of requires action (termination of funding until consultation) by the individual funding agencies; and any relief the District Court could have provided in this suit against the Secretary was not likely to produce that action.

A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli project. Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. As in Simon, 426 U. S., at 43-44, it is entirely conjectural whether the non-agency activity that affects respondents will be altered or affected by the agency activity they seek to achieve.6 There is no standing.

IV

The Court of Appeals found that respondents had standing for an additional reason: because they had suffered a “procedural injury.” The so-called “citizen-suit” provision of the ESA provides, in pertinent part, that “any person may com-*572menee a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter.” 16 U. S. C. § 1540(g). The court held that, because § 7(a)(2) requires interagency consultation, the citizen-suit provision creates a “procedural righ[t]” to consultation in all “persons” — so that anyone can file suit in federal court to challenge the Secretary’s (or presumably any other official’s) failure to follow the assertedly correct consultative procedure, notwithstanding his or her inability to allege any discrete injury flowing from that failure. 911 F. 2d, at 121-122. To understand the remarkable nature of this holding one must be clear about what it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e. g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them).7 Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the *573unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government’s benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, self-contained, noninstrumental “right” to have the Executive observe the procedures required by law. We reject this view.8

We have consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that *574no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy. For example, in Fairchild v. Hughes, 258 U. S. 126, 129-130 (1922), we dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. Justice Brandéis wrote for the Court:

“[This is] not a case within the meaning of . . . Article III ... . Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit. . . .” Ibid.

In Massachusetts v. Mellon, 262 U. S. 447 (1923), we dismissed for lack of Article III standing a taxpayer suit challenging the propriety of certain federal expenditures. We said:

“The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.... Here the parties plaintiff have no such case.... [T]heir complaint... is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess.” Id., at 488-489.

In Ex parte Lévitt, 302 U. S. 633 (1937), we dismissed a suit contending that Justice Black’s appointment to this Court violated the Ineligibility Clause, Art. I, §6, cl. 2. *575“It is an established principle,” we said, “that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.” 302 U. S., at 634. See also Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429, 433-434 (1952) (dismissing taxpayer action on the basis of Mellon).

More recent cases are to the same effect. In United States v. Richardson, 418 U. S. 166 (1974), we dismissed for lack of standing a taxpayer suit challenging the Government’s failure to disclose the expenditures of the Central Intelligence Agency, in alleged violation of the constitutional requirement, Art. I, § 9, cl. 7, that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” We held that such a suit rested upon an impermissible “generalized grievance,” and was inconsistent with “the framework of Article III” because “the impact on [plaintiff] is plainly undifferentiated and ‘common to all members of the public.’ ” Richardson, supra, at 171, 176-177. And in Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974), we dismissed for the same reasons a citizen-taxpayer suit contending that it was a violation of the Incompatibility Clause, Art. I, §6, cl. 2, for Members of Congress to hold commissions in the military Reserves. We said that the challenged action, “standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance . . . . We reaffirm Lévitt in holding that standing to sue may not be predicated upon an interest of th[is] kind . . . .” Schlesinger, supra, at 217, 220. Since Schlesinger we have on two occasions held that an injury amounting only to the alleged violation of a right to have, the Government act in accordance with law was not judicially cognizable because *576“‘assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. Ill without draining those requirements of meaning.’” Allen, 468 U. S., at 754; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 483 (1982). And only two Terms ago, we rejected the notion that Article III permits a citizen suit to prevent a condemned criminal’s execution on the basis of “ ‘the public interest protections of the Eighth Amendment’ once again, “[t]his allegation raise[d] only the ‘generalized interest of all citizens in constitutional governance’... and [was] an inadequate basis on which to grant... standing.” Whitmore, 495 U. S., at 160.

To be sure, our generalized-grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch — one of the essential elements that identifies those “Cases” and “Controversies” that are the business of the courts rather than of the political branches. “The province of the court,” as Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 170 (1803), “is, solely, to decide on the rights of individuals.” Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies’ observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and *577that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation-of-powers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to “take Care that the Laws be faithfully executed,” Art. II, § 3. It would enable the courts, with the permission of Congress, “to assume a position of authority over the governmental acts of another and co-equal department,” Massachusetts v. Mellon, 262 U. S., at 489, and to become “ ‘virtually continuing monitors of the wisdom and soundness of Executive action.’” Allen, supra, at 760 (quoting Laird v. Tatum, 408 U. S. 1, 15 (1972)). We have always rejected that vision of our role:

“When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers.... This is very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people. Congress and the Executive supervise the acts of administrative agents. . . . But under Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power.” Stark v. Wickard, 321 U. S. 288, 309-310 (1944) (footnote omitted).

*578“Individual rights,” within the meaning of this passage, do not mean public rights that have been legislatively-pronounced to belong to each individual who forms part of the public. See also Sierra Club, 405 U. S., at 740-741, n. 16.

Nothing in this contradicts the principle that “[t]he . . . injury required by Art. Ill may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’ ” Warth, 422 U. S., at 500 (quoting Linda R. S. v. Richard D., 410 U. S. 614, 617, n. 3 (1973)). Both of the cases used by Linda R. S. as an illustration of that principle involved Congress’ elevating to the status of legally cognizable injuries concrete, defacto injuries that were previously inadequate in law (namely, injury to an individual’s personal interest in living in a racially integrated community, see Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 208-212 (1972), and injury to a company’s interest in marketing its product free from competition, see Hardin v. Kentucky Utilities Co., 390 U. S. 1, 6 (1968)). As we said in Sierra Club, “[Statutory] broadening [of] the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.” 405 U. S., at 738. Whether or not the principle set forth in Warth can be extended beyond that distinction, it is clear that in suits against the Government, at least, the concrete injury requirement must remain.

* * *

We hold that respondents lack standing to bring this action and that the Court of Appeals erred in denying the summary judgment motion filed by the United States. The opinion of the Court of Appeals is hereby reversed, and the cause is remanded for proceedings consistent with this opinion.

It is so ordered.

1

By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.

2

The dissent acknowledges the settled requirement that the injury complained of be, if not actual, then at least imminent, but it contends that respondents could get past summary judgment because “a reasonable finder of fact could conclude ... that... Kelly or Skilbred will soon return to the project sites.” Post, at 691. This analysis suffers either from a factual or from a legal defect, depending on what the “soon” is supposed to mean. If “soon” refers to the standard mandated by our precedents— that the injury be “imminent,” Whitmore v. Arkansas, 495 U. S. 149, 155 (1990) — we are at a loss to see how, as a factual matter, the standard can be met by respondents’ mere profession of an intent, some day, to *565return. But if, as we suspect, “soon” means nothing more than “in this lifetime,” then the dissent has undertaken quite a departure from our precedents. Although “imminence” is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes — that the injury is “ ‘ “certainly impending,” ’ ” id, at 168 (emphasis added). It has been stretched beyond the breaking point when, as here, the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff’s own control. In such circumstances we have insisted that the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all. See, e. g., id,., at 156-160; Los Angeles v. Lyons, 461 U. S. 95, 102-106 (1983).

There is no substance to the dissent’s suggestion that imminence is demanded only when the alleged harm depends upon “the affirmative actions of third parties beyond a plaintiff’s control,” post, at 592. Our cases mention third-party-caused contingency, naturally enough; but they also mention the plaintiff’s failure to show that he will soon expose himself to the injury, see, e. g., Lyons, supra, at 105-106; O’Shea v. Littleton, 414 U. S. 488, 497 (1974); Ashcroft v. Mattis, 431 U. S. 171, 172-173, n. 2 (1977) (per curiam). And there is certainly no reason in principle to demand evidence that third persons will take the action exposing the plaintiff to harm, while presuming that the plaintiff himself will do so.

Our insistence upon these established requirements of standing does not mean that we would, as the dissent contends, “demand . . . detailed descriptions” of damages, such as a “nightly schedule of attempted activities” from plaintiffs alleging loss of consortium. Post, at 593. That case and the others posited by the dissent all involve actual harm; the existence of standing is clear, though the precise extent of harm remains to be determined at trial. Where there is no actual harm, however, its imminence (though not its precise extent) must be established.

3

The dissent embraces each of respondents’ “nexus” theories, rejecting this portion of our analysis because it is “unable to see how the distant location of the destruction necessarily (for purposes of ruling at summary judgment) mitigates the harm” to the plaintiff. Post, at 694-595. But summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U. S. 317, 322 (1986). Respondents had to adduce facts, therefore, on the basis of which it could reasonably be found that concrete injury to their members was, as our cases require, “certainly impending.” The dissent may be correct that the geographic remoteness of those members (here in the United States) from Sri Lanka and Aswan does not “necessarily” prevent such a finding — but it assuredly does so when no further facts have been brought forward (and respondents have produced none) showing that the impact upon animals in those distant places will in some fashion be reflected here. The dissent’s position to the contrary reduces to the notion that distance never prevents harm, a proposition we categorically reject. It cannot be that a person with an interest in an animal automatically has standing to enjoin federal threats to that species of animal, anywhere in the world. Were that the case, the plaintiff in Sierra Club, for example, could have avoided the necessity of establishing anyone’s use of Mineral King by merely identifying one of its members interested in an endangered species of flora or fauna at that location. Justice Blackmun’s accusation that a special rule is being crafted for “environmental claims,” post, at 595, is correct, but he is the craftsman.

Justice Stevens, by contrast, would allow standing on an apparent “animal nexus” theory to all plaintiffs whose interest in the animals is “genuine.” Such plaintiffs, we are told, do not have to visit the animals because the animals are analogous to family members. Post, at 583-584, and n. 2. We decliné to join Justice Stevens in this Linnaean leap. It is unclear to us what constitutes a “genuine” interest; how it differs from *568a “nongenuine” interest (which nonetheless prompted a plaintiff to file suit); and why such an interest in animals should be different from such an interest in anything else that is the subject of a lawsuit.

4

We need not linger over the dissent’s facially impracticable suggestion, post, at 595-596, that one agency of the Government can acquire the power to direct other agencies by simply claiming that power in its own regulations and in litigation to which the other agencies are not parties. As for the contention that the other agencies will be “collaterally estopped” to challenge our judgment that they are bound by the Secretary of the Interior’s views, because of their participation in this suit, post, at 596-597: Whether or not that is true now, it was assuredly not true when this suit was filed, naming the Secretary alone. “The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 830 (1989) (empha*570sis added). It cannot be that, by later participating in the suit, the State Department and AID retroactively created a redressability (and hence a jurisdiction) that did not exist at the outset.

The dissent’s rejoinder that redressability was clear at the outset because the Secretary thought the regulation binding on the agencies, post, at 598-599, n. 4, continues to miss the point: The agencies did not agree with the Secretary, nor would they be bound by a district court holding (as to this issue) in the Secretary’s favor. There is no support for the dissent’s novel contention, ibid., that Rule 19 of the Federal Rules of Civil Procedure, governing joinder of indispensable parties, somehow alters our longstanding rule that jurisdiction is to be assessed under the facts existing when the complaint is filed. The redressability element of the Article III standing requirement and the “complete relief” referred to by Rule 19 are not identical. Finally, we reach the dissent’s contention, post, at 599, n. 4, that by refusing to waive our settled rule for purposes of this case we have made “federal subject-matter jurisdiction ... a one-way street running the Executive Branch’s way.” That is so, we are told, because the Executive can dispel jurisdiction where it previously existed (by either conceding the merits or by pointing out that nonparty agencies would not be bound by a ruling), whereas a plaintiff cannot retroactively create jurisdiction based on postcomplaint litigation conduct. But any defendant, not just the Government, can dispel jurisdiction by conceding the merits (and presumably thereby suffering a judgment) or by demonstrating standing defects. And permitting a defendant to point out a preexisting standing defect late in the day is not remotely comparable to permitting a plaintiff to establish standing on the basis of the defendant’s litigation conduct occurring after standing is erroneously determined.

5

Seizing on the fortuity that the case has made its way to this Court, Justice Stevens protests that no agency would ignore “an authoritative construction of the [ESA] by this Court.” Post, at 585. In that he is probably correct; in concluding from it that plaintiffs have demonstrated redressability, he is not. Since, as we have pointed out above, standing *571is to be determined as of the commencement of suit; since at that point it could certainly not be known that the suit would reach this Court; and since it is not likely that an agency would feel compelled to accede to the legal view of a district court expressed in a case to which it was not a party; redressability clearly did not exist.

6

The dissent criticizes us for “overlooking]” memoranda indicating that the Sri Lankan Government solicited and required AID’s assistance to mitigate the effects of the Mahaweli project on endangered species, and that the Bureau of Reclamation was advising the Aswan project. Post, at 600-601. The memoranda, however, contain no indication whatever that the projects will cease or be less harmful to listed species in the absence of AID funding. In fact, the Sri Lanka memorandum suggests just the opposite: It states that AID’s role will be to mitigate the “ ‘negative impacts to the wildlife,’ ” post, at 600, which means that the termination of AID funding would exacerbate respondents’ claimed injury.

7

There is this much truth to the assertion that “procedural rights” are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. (That is why we do not rely, in the present case, upon the Government’s argument that, even if the other agencies were obliged to consult with the Secretary, they might not have followed his advice.) What respondents’ “procedural rights” argument seeks, however, is quite different from this: standing for persons who have no concrete interests affected — persons who live (and propose to live) at the other end of the country from the dam.

8

The dissent’s discussion of this aspect of the case, post, at 601-606, distorts our opinion. We do not hold that an individual cannot enforce procedural rights; he assuredly can, so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing. The dissent, however, asserts that there exist “classes of procedural duties ... so enmeshed with the prevention of a substantive, concrete harm that an individual plaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural duty.” Post, at 605. If we understand this correctly, it means that the Government’s violation of a certain (undescribed) class of procedural duty satisfies the concrete-injury requirement by itself, without any showing that the procedural violation endangers a concrete interest of the plaintiff (apart from his interest in having the procedure observed). We cannot agree. The dissent is unable to cite a single case in which we actually found standing solely on the basis of a “procedural right” unconnected to the plaintiff’s own concrete harm. Its suggestion that we did so in Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221 (1986), and Robertson v. Methow Valley Citizens Council, 490 U. S. 332 (1989), post, at 602-603, 605, is not supported by the facts. In the former case, we found that the environmental organizations had standing because the “whale watching and studying of their members w[ould] be adversely affected by continued whale harvesting,” see 478 U. S., at 230-231, n. 4; and in the latter we did not so much as mention standing, for the very good reason that the plaintiff was a citizens’ council for the area in which the challenged construction was to occur, so that its members would obviously be concretely affected, see Methow Valley Citizens Council v. Regional Forester, 833 F. 2d 810, 812-813 (CA9 1987).

*579Justice Kennedy,

with whom Justice Souter joins, concurring in part and concurring in the judgment.

Although I agree with the essential' parts of the Court’s analysis, I write separately to make several observations.

I agree with the Court’s conclusion in Part III-A that, on the record before us, respondents have failed to demonstrate that they themselves are “among the injured.” Sierra Club v. Morton, 405 U. S. 727, 735 (1972). This component of the standing inquiry is not satisfied unless

“[plaintiffs ... demonstrate a ‘personal stake in the outcome.’ . . . Abstract injury is not enough. The plaintiff must show that he ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged official conduct and the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” Los Angeles v. Lyons, 461 U. S. 95, 101-102 (1983) (citations omitted).

While it may seem trivial to require that Mses. Kelly and Skilbred acquire airline tickets to the project sites or announce a date certain upon which they will return, see ante, at 564, this is not a case where it is reasonable to assume that the affiants will be using the sites on a regular basis, see Sierra Club v. Morton, supra, at 735, n. 8, nor do the affiants claim to have visited the sites since the projects commenced. With respect to the Court’s discussion of respondents’ “ecosystem nexus,” “animal nexus,” and “vocational nexus” theories, ante, at 565-567, I agree that on this record respondents’ showing is insufficient to establish standing on any of these bases. I am not willing to foreclose the possibility, however, that in different circumstances a nexus theory similar to those proffered here might support a claim to standing. See Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221, 231, n. 4 (1986) (“[Rjespondents . . . undoubtedly have alleged a sufficient ‘injury in fact’ in that *580the whale watching and studying of their members will be adversely affected by continued whale harvesting”).

In light of the conclusion that respondents have not demonstrated a concrete injury here sufficient to support standing under our precedents, I would not reach the issue of re-dressability that is discussed by the plurality in Part III-B.

I also join Part IV of the Court’s opinion with the following observations. As Government programs and policies become more complex and far reaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition. Modern litigation has progressed far from the paradigm of Marbury suing Madison to get his commission, Marbury v. Madison, 1 Cranch 137 (1803), or Ogden seeking an injunction to halt Gibbons’ steamboat operations, Gibbons v. Ogden, 9 Wheat. 1 (1824). In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court’s opinion to suggest a contrary view. See Warth v. Seldin, 422 U. S. 490, 500 (1975); ante, at 578. In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The citizen-suit provision of the Endangered Species Act does not meet these minimal requirements, because while the statute purports to confer a right on “any person ... to enjoin . . . the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter,” it does not of its own force establish that there is an injury in “any person” by virtue of any “violation.” 16 U. S. C. § 1540(g)(1)(A).

The Court’s holding that there is an outer limit to the power of Congress to confer rights of action is a direct and necessary consequence of the case and controversy limitations found in Article III. I agree that it Would exceed those limitations if, at the behest of Congress and in the ab*581sence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws. While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that “the legal questions presented... will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982). In addition, the requirement of concrete injury confines the Judicial Branch to its proper, limited role in the constitutional framework of Government.

An independent judiciary is held to account through its open proceedings and its reasoned judgments. In this process it is essential for the public to know what persons or groups are invoking the judicial power, the reasons that they have brought suit, and whether their claims are vindicated or denied. The concrete injury requirement helps assure that there can be an answer to these questions; and, as the Court’s opinion is careful to show, that is part of the constitutional design.

With these observations, I concur in Parts I, II, III-A, and IV of the Court’s opinion and in the judgment of the Court.

Justice Stevens,

concurring in the judgment.

Because I am not persuaded that Congress intended the consultation requirement in § 7(a)(2) of the Endangered Species Act of 1973 (ESA), 16 U. S. C. § 1536(a)(2), to apply to activities in foreign countries, I concur in the judgment of reversal. I do not, however, agree with the Court’s conclu*582sion that respondents lack standing because the threatened injury to their interest in protecting the environment and studying endangered species is not “imminent.” Nor do I agree with the plurality’s additional conclusion that respondents’ injury is not “redressable” in this litigation.

HH

In my opinion a person who has visited the critical habitat of an endangered species has a professional interest in preserving the species and its habitat, and intends to revisit them in the future has standing to challenge agency action that threatens their destruction. Congress has found that a wide variety of endangered species of fish, wildlife, and plants are of “aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” 16 U. S. C. § 1531(a)(3). Given that finding, we have no license to demean the importance of the interest that particular individuals may have in observing any species or its habitat, whether those individuals are motivated by esthetic enjoyment, an interest in professional research, or an economic interest in preservation of the species. Indeed, this Court has often held that injuries to such interests are sufficient to confer standing,1 and the Court reiterates that holding today. See ante, at 562-563.

The Court nevertheless concludes that respondents have not suffered “injury in fact” because they have not shown that the harm to the endangered species will produce “imminent” injury to them. See ante, at 564. I disagree. An injury to an individual’s interest in studying or enjoying a species and its natural habitat occurs when someone (whether it be the Government or a private party) takes action that harms that species and habitat. In my judgment, *583therefore, the “imminence” of such an injury should be measured by the timing and likelihood of the threatened environmental harm, rather than — as the Court seems to suggest, ante, at 564, and n. 2 — by the time that might elapse between the present and the time when the individuals would visit the area if no such injury should occur.

To understand why this approach is correct and consistent with our precedent, it is necessary to consider the purpose of the standing doctrine. Concerned about “the proper— and properly limited — role of the courts in a democratic society,” we have long held that “Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party.” Warth v. Seldin, 422 U. S. 490, 498-499 (1975)., The plaintiff must have a “personal stake in the outcome” sufficient to “assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.” Baker v. Carr, 369 U. S. 186, 204 (1962). For that reason, “[a]bstract injury is not enough. It must be alleged that the plaintiff ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged statute or official conduct... . The injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural,’ or ‘hypothetical.’ ” O'Shea v. Littleton, 414 U. S. 488, 494 (1974) (quoting Golden v. Zwickler, 394 U. S. 103, 109-110 (1969)).

Consequently, we have denied standing to plaintiffs whose likelihood of suffering any concrete adverse effect from the challenged action was speculative. See, e. g., Whitmore v. Arkansas, 495 U. S. 149, 158-159 (1990); Los Angeles v. Lyons, 461 U. S. 95, 105 (1983); O’Shea, 414 U. S., at 497. In this case, however, the likelihood that respondents will be injured by the destruction of the endangered species is not speculative. If respondents are genuinely interested in the preservation of the endangered species and intend to study or observe these animals in the future, their injury will occur as soon as the animals are destroyed. Thus the only poten*584tial source of “speculation” in this case is whether respondents’ intent to study or observe the animals is genuine.2 In my view, Joyce Kelly and Amy Skilbred have introduced sufficient evidence to negate petitioner’s contention that their claims of injury are “speculative” or “conjectural.” As Justice Blackmun explains, post, at 591-592, a reasonable finder of fact could conclude, from their past visits, their professional backgrounds, and their affidavits and deposition testimony, that Ms. Kelly and Ms. Skilbred will return to the project sites and, consequently, will be injured by the destruction of the endangered species and critical habitat.

The plurality also concludes that respondents’ injuries are not redressable in this litigation for two reasons. First, respondents have sought only a declaratory judgment that the Secretary of the Interior’s regulation interpreting § 7(a)(2) to require consultation only for agency actions in the United States or on the high seas is invalid and an injunction requiring him to promulgate a new regulation requiring consultation for agency actions abroad as well. But, the plurality opines, even if respondents succeed and a new regulation is *585promulgated, there is no guarantee that federal agencies that are not parties to this case will actually consult with the Secretary. See ante, at 568-571. Furthermore, the plurality continues, respondents have not demonstrated that federal agencies can influence the behavior of the foreign governments where the affected projects are located. Thus, even if the agencies consult with the Secretary and terminate funding for foreign projects, the foreign governments might nonetheless pursue the projects and jeopardize the endangered species. See ante, at 571. Neither of these reasons is persuasive.

We must presume that if this Court holds that § 7(a)(2) requires consultation, all affected agencies would abide by that interpretation and engage in the requisite consultations. Certainly the Executive Branch cannot be heard to argue that an authoritative construction of the governing statute by this Court may simply be ignored by any agency head. Moreover, if Congress has required consultation between agencies, we must presume that such consultation will have a serious purpose that is likely to produce tangible results. As Justice Blackmun explains, post, at 599-601, it is not mere speculation to think that foreign governments, when faced with the threatened withdrawal of United States assistance, will modify their projects to mitigate the harm to endangered species.

II

Although I believe that respondents have standing, I nevertheless concur in the judgment of reversal because I am persuaded that the Government is correct in its submission that § 7(a)(2) does not apply to activities in foreign countries. As with all questions of statutory construction, the question whether a statute applies extraterritorially is one of congressional intent. Foley Bros., Inc. v. Filardo, 336 U. S. 281, 284-285 (1949). We normally assume that “Congress is primarily concerned with domestic conditions,” id., at 285, and therefore presume that “‘legislation of Congress, unless a *586contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States,'” EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (quoting Foley Bros., 336 U. S., at 285).

Section 7(a)(2) provides, in relevant part:

“Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior or Commerce, as appropriate3], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘agency action’) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section....” 16 U. S. C. § 1536(a)(2).

Nothing in this text indicates that the section applies in foreign countries.4 Indeed, the only geographic reference in *587the section is in the “critical habitat” clause,5 which mentions “affected States.” The Secretary of the Interior and the Secretary of Commerce have consistently taken the position that they need not designate critical habitat in foreign countries. See 42 Fed. Reg. 4869 (1977) (initial regulations of the Fish and Wildlife Service and the National Marine Fisheries Service on behalf of the Secretary of the Interior and the Secretary of Commerce). Consequently, neither Secretary interprets § 7(a)(2) to require federal agencies to engage in consultations to ensure that their actions in foreign countries will not adversely affect the critical habitat of endangered or threatened species.

That interpretation is sound, and, in fact, the Court of Appeals did not question it.6 There is, moreover, no indication that Congress intended to give a different geographic scope to the two clauses in § 7(a)(2). To the contrary, Congress recognized that one of the “major causes” of extinction of *588endangered species is the “destruction of natural habitat.” S. Rep. No. 93-307, p. 2 (1973); see also H. Rep. No. 93-412, p. 2 (1973); TVA v. Hill, 437 U. S. 153, 179 (1978). It would thus be illogical to conclude that Congress required federal agencies to avoid jeopardy to endangered species abroad, but not destruction of critical habitat abroad.

The lack of an express indication that the consultation requirement applies extraterritorially is particularly significant because other sections of the ESA expressly deal with the problem of protecting endangered species abroad. Section 8, for example, authorizes the President to provide assistance to “any foreign country (with its consent)... in the development and management of programs in that country which [are] . . . necessary or useful for the conservation of any endangered species or threatened species listed by the Secretary pursuant to section 1533 of this title.” 16 U. S. C. § 1537(a). It also directs the Secretary of the Interior, “through the Secretary of State,” to “encourage” foreign countries to conserve fish and wildlife and to enter into bilateral or multilateral agreements. § 1537(b). Section 9 makes it unlawful to import endangered species into (or export them from) the United States or to otherwise traffic in endangered species “in interstate or foreign commerce.” §§ 1538(a)(1)(A), (E), (F). Congress thus obviously thought about endangered species abroad and devised specific sections of the ESA to protect them. In this context, the absence of any explicit statement that the consultation requirement is applicable to agency actions in foreign countries suggests that Congress did not intend that § 7(a)(2) apply extraterritorially.

Finally, the general purpose of the ESA does not evince a congressional intent that the consultation requirement be applicable to federal agency actions abroad. The congressional findings explaining the need for the ESA emphasize that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence *589of economic growth and development untempered by adequate concern and conservation,” and that these species “are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” §§ 1531(1), (3) (emphasis added). The lack of similar findings about the harm caused by development in other countries suggests that Congress was primarily concerned with balancing development and conservation goals in this country.7

In short, a reading of the entire statute persuades me that Congress did not intend the consultation requirement in § 7(a)(2) to apply to activities in foreign countries. Accordingly, notwithstanding my disagreement with the Court’s disposition of the standing question, I concur in its judgment.

1

See, e. g., Sierra Club v. Morton, 405 U. S. 727, 734 (1972); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 686-687 (1973); Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221, 230-231, n. 4 (1986).

2

As we recognized in Sierra Club v. Morton, 405 U. S., at 735, the impact of changes in the esthetics or ecology of a particular area does “not fall indiscriminately upon every citizen. The alleged injury will be felt directly only by those who use [the area,] and for whom the aesthetic and recreational values of the area will be lessened ...Thus, respondents would not be injured by the challenged projects if they had not visited the sites or studied the threatened species and habitat. But, as discussed above, respondents did visit the sites; moreover, they have expressed an intent to do so again. This intent to revisit the area is significant evidence tending to confirm the genuine character of respondents’ interest, but I am not at all sure that an intent to revisit would be indispensable in every case. The interest that confers standing in a case of this kind is comparable, though by no means equivalent, to the interest in a relationship among family members that can be immediately harmed by the death of an absent member, regardless of when, if ever, a family reunion is planned to occur. Thus, if the facts of this case had shown repeated and regular visits by the respondents, cf. ante, at 579 (opinion of Kennedy, J.), proof of an intent to revisit might well be superfluous.

3

The ESA defines “Secretary” to mean “the Secretary of the Interior or the Secretary of Commerce as program responsibilities are vested pursuant to the provisions of Reorganization Plan Numbered 4 of 1970.” 16 U. S. C. § 1632(15). As a general matter, “marine species are under the jurisdiction of the Secretary of Commerce and all other species are under the jurisdiction of the Secretary of the Interior.” 61 Fed. Reg. 19926 (1986) (preamble to final regulations governing interagency consultation promulgated by the Fish and Wildlife Service and the National Marine Fisheries Service on behalf of the Secretary of the Interior and the Secretary of Commerce).

4

Respondents point out that the duties in § 7(a)(2) are phrased in broad, inclusive language: “Each Federal agency” shall consult with the Secretary and ensure that “any action” does not jeopardize “any endangered or threatened species” or destroy or adversely modify the “habitat of such species.” See Brief for Respondents 36; 16 U. S. C. § 1636(a)(2). The Court of Appeals correctly recognized, however, that such inclusive language, by itself, is not sufficient to overcome the presumption against the *587extraterritorial application of statutes. 911 F. 2d 117, 122 (CA8 1990); see also Foley Bros., Inc. v. Filardo, 336 U. S. 281, 282, 287-288 (1949) (statute requiring an 8-hour day provision in “ ‘[ejvery contract made to which the United States ... is a party’” is inapplicable to contracts for work performed in foreign countries).

5

Section 7(a)(2) has two clauses which require federal agencies to consult with the Secretary to ensure that their actions (1) do not jeopardize threatened or endangered species (the “endangered species clause”), and (2) are not likely to destroy or adversely affect the habitat of such species (the “critical habitat clause”).

6

Instead, the Court of Appeals concluded that the endangered species clause and the critical habitat clause are “severable,” at least with respect to their “geographical scope,” so that the former clause applies extraterri-torially even if the latter does not. 911 F. 2d, at 125. Under this interpretation, federal agencies must consult with the Secretary to ensure that their actions in foreign countries are not likely to threaten any endangered species, but they need not consult to ensure that their actions are not likely to destroy the critical habitats of these species. I cannot subscribe to the Court of Appeals’ strained interpretation, for there is no indication that Congress intended to give such vastly different scope to the two clauses in § 7(a)(2).

7

Of course, Congress also found that “the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to [several international agreements],” and that “encouraging the States ... to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation’s international commitments . . . .” 16 U. S. C. §§ 1531(4), (5). The Court of Appeals read these findings as indicative of a congressional intent to make § 7(a)(2)’s consultation requirement applicable to agency action abroad. See 911 F. 2d, at 122-123. I am not persuaded, however, that such a broad congressional intent can be gleaned from these findings. Instead, I think the findings indicate a more narrow congressional intent that the United States abide by its international commitments.

Justice Blackmun,

with whom Justice O’Connor joins, dissenting..

I part company with the Court in this case in two respects. First, I believe that respondents have raised genuine issues of fact — sufficient to survive summary judgment — both as to injury and as to redressability. Second, I question the Court’s breadth of language in rejecting standing for “procedural” injuries. I fear the Court seeks to impose fresh limitations on the constitutional authority of Congress to allow *590citizen suits in the federal courts for injuries deemed “procedural” in nature. I dissent.

I

Article III of the Constitution confines the federal courts to adjudication of actual “Cases” and “Controversies.” To ensure the presence of a “case” or “controversy,” this Court has held that Article III requires, as an irreducible minimum, that a plaintiff allege (1) an injury that is (2) “fairly traceable to the defendant’s allegedly unlawful conduct” and that is (3) “likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751 (1984).

A

To survive petitioner’s motion for summary judgment on standing, respondents need not prove that they are actually or imminently harmed. They need show only a “genuine issue” of material fact as to standing. Fed. Rule Civ. Proc. 56(c). This is not a heavy burden. A “genuine issue” exists so long as “the evidence is such that a reasonable jury could return a verdict for the nonmoving party [respondents].” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 248 (1986). This Court’s “function is not [it]self to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id., at 249.

The Court never mentions the “genuine issue” standard. Rather, the Court refers to the type of evidence it feels respondents failed to produce, namely, “affidavits or other evidence showing, through specific facts” the existence of injury. Ante, at 563. The Court thereby confuses respondents’ evidentiary burden- (i. e., affidavits asserting “specific facts”) in withstanding a summary judgment motion under Rule 56(e) with the standard of proof (i. e., the existence of a “genuine issue” of “material fact”) under Rule 56(c).

*5911

Were the Court to apply the proper standard for summary judgment, I believe it would conclude that the sworn affidavits and deposition testimony of Joyce Kelly and Amy Skil-bred advance sufficient facts to create a genuine issue for trial concerning whether one or both would be imminently harmed by the Aswan and Mahaweli projects. In the first instance, as the Court itself concedes, the affidavits contained facts making it at least “questionable” (and therefore within the province of the factfinder) that certain agency-funded projects threaten listed species.1 Ante, at 564. The only remaining issue, then, is whether Kelly and Skilbred have shown that they personally would suffer imminent harm.

I think a reasonable finder of fact could conclude from the information in the affidavits and deposition testimony that either Kelly or Skilbred will soon return to the project sites, thereby satisfying the “actual or imminent” injury standard. The Court dismisses Kelly’s and Skilbred’s general state*592ments that they intended to revisit the project sites as “simply not enough.” Ibid. But those statements did not stand alone. A reasonable finder of fact could conclude, based not only upon their statements of intent to return, but upon their past visits to the project sites, as well as their professional backgrounds, that it was likely that Kelly and Skilbred would make a return trip to the project areas. Contrary to the Court’s contention that Kelly’s and Skilbred’s past visits “prov[e] nothing,” ibid., the fact of their past visits could demonstrate to a reasonable factfinder that Kelly and Skil-bred have the requisite resources and personal interest in the preservation of the species endangered by the Aswan and Mahaweli projects to make good on their intention to return again. Cf. Los Angeles v. Lyons, 461 U. S. 95, 102 (1983) (“Past wrongs were evidence bearing on whether there is a real and immediate threat of repeated injury”) (internal quotation marks omitted). Similarly, Kelly’s and Skilbred’s professional backgrounds in wildlife preservation, see App. 100, 144, 309-310, also make it likely — at least far more likely than for the average citizen — that they would choose to visit these areas of the world where species are vanishing.

By requiring a “description of concrete plans” or “specification of when the some day [for a return visit] will be,” ante, at 564, the Court, in my view, demands what is likely an empty formality. No substantial barriers prevent Kelly or Skilbred from simply purchasing plane tickets to return to the Aswan and Mahaweli projects. This case differs from other cases in which the imminence of harm turned largely on the affirmative actions of third parties beyond a plaintiff’s control. See Whitmore v. Arkansas, 495 U. S. 149, 155-156 (1990) (harm to plaintiff death-row inmate from fellow inmate’s execution depended on the court’s one day reversing plaintiff’s conviction or sentence and considering comparable sentences at resentencing); Los Angeles v. Lyons, 461 U. S., at 105 (harm dependent on police’s arresting plaintiff again *593and subjecting him to chokehold); Rizzo v. Goode, 423 U. S. 362, 372 (1976) (harm rested upon “what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception of departmental disciplinary procedures”); O’Shea v. Littleton, 414 U. S. 488, 495-498 (1974) (harm from discriminatory conduct of county magistrate and judge dependent on plaintiffs’ being arrested, tried, convicted, and sentenced); Golden v. Zwickler, 394 U. S. 103, 109 (1969) (harm to plaintiff dependent on a former Congressman’s (then serving a 14-year term as a judge) running again for Congress). To be sure, a plaintiff’s unilateral control over his or her exposure to harm does not necessarily render the harm nonspeculative. Nevertheless, it suggests that a finder of fact would be far more likely to conclude the harm is actual or imminent, especially if given an opportunity to hear testimony and determine credibility.

I fear the Court’s demand for detailed descriptions of future conduct will do little to weed out those who are genuinely harmed from those who are not. More likely, it will resurrect a code-pleading formalism in federal court summary judgment practice, as federal courts, newly doubting their jurisdiction, will demand more and more particularized showings of future harm. Just to survive summary judgment, for example, a property owner claiming a decline in the value of his property from governmental action might have to specify the exact date he intends to sell his property and show that there is a market for the property, lest it be surmised he might not sell again. A nurse turned down for a job on grounds of her race had better be prepared to show on what date she was prepared to start work, that she had arranged daycare for her child, and that she would not have accepted work at another hospital instead. And a Federal Tort Claims Act plaintiff alleging loss of consortium should make sure to furnish this Court with a “description of concrete plans” for her nightly schedule of attempted activities.

*5942

The Court also concludes that injury is lacking, because respondents’ allegations of “ecosystem nexus” failed to demonstrate sufficient proximity to the site of the environmental harm. Ante, at 565-566. To support that conclusion, the Court mischaracterizes our decision in Lujan v. National Wildlife Federation, 497 U. S. 871 (1990), as establishing a general rule that “a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity.” Ante, at 565-566. In National Wildlife Federation, the Court required specific geographical proximity because of the particular type of harm alleged in that case: harm to the plaintiff’s visual enjoyment of nature from mining activities. 497 U. S., at 888. One cannot suffer from the sight of a ruined landscape without being close enough to see the sites actually being mined. Many environmental injuries, however, cause harm distant from the area immediately affected by the challenged action. Environmental destruction may affect animals traveling over vast geographical ranges, see, e. g., Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221 (1986) (harm to American whale watchers from Japanese whaling activities), or rivers running long geographical courses, see, e. g., Arkansas v. Oklahoma, 503 U. S. 91 (1992) (harm to Oklahoma residents from wastewater treatment plant 39 miles from border). It cannot seriously be contended that a litigant’s failure to use the precise or exact site where animals are slaughtered or where toxic waste is dumped into a river means he or she cannot show injury.

The Court also rejects respondents’ claim of vocational or professional injury. The Court says that it is “beyond all reason” that a zoo “keeper” of Asian elephants would have standing to contest his Government’s participation in the eradication of all the Asian elephants in another part of the world. Ante, at 566. I am unable to see how the distant location of the destruction necessarily (for purposes of ruling *595at summary judgment) mitigates the harm to the elephant keeper. If there is no more access to a future supply of the animal that sustains a keeper’s livelihood, surely there is harm.

1 have difficulty imagining this Court applying its rigid principles of geographic formalism anywhere outside the context of environmental claims. As I understand it, environmental plaintiffs are under no special constitutional standing disabilities. Like other plaintiffs, they need show only that the action they challenge has injured them, without necessarily showing they happened to be physically near the location of the alleged wrong. The Court’s decision today should not be interpreted “to foreclose the possibility . . . that in different circumstances a nexus theory similar to those proffered here might support a claim to standing.” Ante, at 579 (Kennedy, J., concurring in part and concurring in judgment).

B

A plurality of the Court suggests that respondents have not demonstrated redressability: a likelihood that a court ruling in their favor would remedy their injury. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 74-75, and n. 20 (1978) (plaintiff must show “substantial likelihood” that relief requested will redress the injury). The plurality identifies two obstacles. The first is that the “action agencies” (e. g., AID) cannot be required to undertake consultation with petitioner Secretary, because they are not directly bound as parties to the suit and are otherwise not indirectly bound by being subject to petitioner Secretary’s regulation. Petitioner, however, officially and publicly has taken the position that his regulations regarding consultation under § 7 of the Act are binding on action agencies. 50 CFR § 402.14(a) (1991).2 And he has previously *596taken the same position in this very litigation, having stated in his answer to the complaint that petitioner “admits the Fish and Wildlife Service (FWS) was designated the lead agency for the formulation of regulations concerning section 7 of the [Endangered Species Act].” App. 246. I cannot agree with the plurality that the Secretary (or the Solicitor General) is now free, for the convenience of this appeal, to disavow his prior public and litigation positions. More generally, I cannot agree that the Government is free to play “Three-Card Monte” with its description of agencies’ authority to defeat standing against the agency given the lead in administering a statutory scheme.

Emphasizing that none of the action agencies are parties to this suit (and having rejected the possibility of their being indirectly bound by petitioner’s regulation), the plurality concludes that “there is no reason they should be obliged to honor an incidental legal determination the suit produced.” Ante, at 569. I am not as willing as the plurality is to assume that agencies at least will not try to follow the law. Moreover, I wonder if the plurality has not overlooked the extensive involvement from the inception of this litigation by the Department of State and AID.3 Under *597principles of collateral estoppel, these agencies are precluded from subsequently relitigating the issues decided in this suit.

“[0]ne who prosecutes or defends a suit in the name of another to establish and protect his own right, or who assists in the prosecution or defense of an action in aid of some interest of his own, and who does this openly to the knowledge of the opposing party, is as much bound by the judgment and as fully entitled to avail himself of it as an estoppel against an adverse party, as he would be if he had been a party to the record.” Souffront v. Compagnie des Sucreries de Porto Rico, 217 U. S. 475, 487 (1910).

This principle applies even to the Federal Government. In Montana v. United States, 440 U. S. 147 (1979), this Court held that the Government was estopped from relitigating in federal court the constitutionality of Montana’s gross receipts tax, because that issue previously had been litigated in state court by an individual contractor whose litigation had been financed and controlled by the Federal Government. “Thus, although not a party, the United States plainly had a sufficient ‘laboring oar’ in the conduct of the state-court litigation to actuate principles of estoppel.” Id., at 155. See also United States v. Mendoza, 464 U. S. 154, 164, n. 9 (1984) (Federal Government estopped where it “constituted a ‘party’ in all but a technical sense”). In my view, the action agencies have had sufficient “laboring oars” in this litigation since its inception to be bound from subsequent *598relitigation of the extraterritorial scope of the § 7 consultation requirement.4 As a result, I believe respondents’ injury would likely be redressed by a favorable decision.

*599The second redressability obstacle relied on by the plurality is that “the [action] agencies generally supply only a fraction of the funding for a foreign project.” Ante, at 571. What this Court might “generally” take to be true does not eliminate the existence of a genuine issue of fact to withstand summary judgment. Even if the action agencies supply only a fraction of the funding for a particular foreign project, it remains at least a question for the finder of fact whether threatened withdrawal of that fraction would affect foreign government conduct sufficiently to avoid harm to listed species.

The plurality states that “AID, for example, has provided less than 10% of the funding for the Mahaweli project.” Ibid. The plurality neglects to mention that this “fraction” amounts to $170 million, see App. 159, not so paltry a sum for a country of only 16 million people with a gross national product of less than $6 billion in 1986 when respondents filed *600the complaint in this action. Federal Research Division, Library of Congress, Sri Lanka: A Country Study (Area Handbook Series) xvi-xvii (1990).

The plurality flatly states: “Respondents have produced nothing to indicate that the projects they have named will ... do less harm to listed species, if that fraction is eliminated.” Ante, at 571. As an initial matter, the relevant inquiry is not, as the plurality suggests, what will happen if AID or other agencies stop funding projects, but what will happen if AID or other agencies comply with the consultation requirement for projects abroad. Respondents filed suit to require consultation, not a termination of funding. Respondents have raised at least a genuine issue of fact that the projects harm endangered species and that the actions of AID and other United States agencies can mitigate that harm.

The plurality overlooks an Interior Department memorandum listing eight endangered or threatened species in the Mahaweli project area and recounting that “[t]he Sri Lankan government has requested the assistance of AID in mitigating the negative impacts to the wildlife involved.” App. 78. Further, a letter from the Director of the Fish and Wildlife Service to AID states:

“The Sri Lankan government lacks the necessary finances to undertake any long-term management programs to avoid the negative impacts to the wildlife. The donor nations and agencies that are financing the [Mahaweli project] will be the key as to how successfully the wildlife is preserved. If wildlife problems receive the same level of attention as the engineering project, then the negative impacts to the environment can be alleviated. This means that there has to be long-term funding in sufficient amounts to stem the negative impacts of this project.” Id., at 216.

*601I do not share the plurality’s astonishing confidence that, on the record here, a factfinder could only conclude that AID was powerless to ensure the protection of listed species at the Mahaweli project.

As for the Aswan project, the record again rebuts the plurality’s assumption that donor agencies are without any authority to protect listed species. Kelly asserted in her affidavit — and it has not been disputed — that the Bureau of Reclamation was “overseeing” the rehabilitation of the Aswan project. Id., at 101. See also id., at 65 (Bureau of Reclamation publication stating: “In 1982, the Egyptian government . . . requested that Reclamation serve as its engineering advisor for the nine-year [Aswan] rehabilitation project”).

I find myself unable to agree with the plurality’s analysis of redressability, based as it is on its invitation of executive lawlessness, ignorance of principles of collateral estoppel, unfounded assumptions about causation, and erroneous conclusions about what the record does not say. In my view, respondents have satisfactorily shown a genuine issue of fact as to whether their injury would likely be redressed by a decision in their favor.

II

The Court concludes that any “procedural injury” suffered by respondents is insufficient to confer standing. It rejects the view that the “injury-in-fact requirement [is] satisfied by congressional conferral upon all persons of an abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the procedures required by law.” Ante, at 573. Whatever the Court might mean with that very broad language, it cannot be saying that “procedural injuries” as a class are necessarily insufficient for purposes of Article III standing.

Most governmental conduct can be classified as “procedural.” Many injuries caused by governmental conduct, therefore, are categorizable at some level of generality as *602“procedural” injuries. Yet, these injuries are not categorically beyond the pale of redress by the federal courts. When the Government, for example, “procedurally” issues a pollution permit, those affected by the permittee’s pollutants are not without standing to sue. Only later cases will tell just what the Court means by its intimation that “procedural” injuries are not constitutionally cognizable injuries. In the meantime, I have the greatest of sympathy for the courts across the country that will struggle to understand the Court’s standardless exposition of this concept today.

The Court -expresses concern that allowing judicial enforcement of “agencies’ observance of a particular, statutorily prescribed procedure” would “transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II, § 8.” Ante, at 576, 577. In fact, the principal effect of foreclosing judicial enforcement of such procedures is to transfer power into the hands of the Executive at the expense — not of the courts — but of Congress, from which that power originates and emanates.

Under the Court’s anachronistically formal view of the separation of powers, Congress legislates pure, substantive mandates and has no business structuring the procedural manner in which the Executive implements these mandates. To be sure, in the ordinary course, Congress does legislate in black-and-white terms of affirmative commands or negative prohibitions on the conduct of officers of the Executive Branch. In complex regulatory areas, however, Congress often legislates, as it were, in procedural shades of gray. That is, it sets forth substantive policy goals and provides for their attainment by requiring Executive Branch officials to follow certain procedures, for example, in the form of reporting, consultation, and certification requirements.

The Court recently has considered two such procedurally oriented statutes. In Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221 (1986), the Court examined a *603statute requiring the Secretary of Commerce to certify to the President that foreign nations were not conducting fishing operations or trading which “diminis[h] the effectiveness” of an international whaling convention. Id., at 226. The Court expressly found standing to sue. Id., at 230-231, n. 4. In Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 348 (1989), this Court considered injury from violation of the “action-forcing” procedures of the National Environmental Policy Act (NEPA), in particular the requirements for issuance of environmental impact statements.

The consultation requirement of §7 of the Endangered Species Act is a similar, action-forcing statute. Consultation is designed as an integral check on federal agency action, ensuring that such action does not go forward without full consideration of its effects on listed species. Once consultation is initiated, the Secretary is under a duty to provide to the action agency “a written statement setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat.” 16 U. S. C. § 1536(b)(3)(A). The Secretary is also obligated to suggest “reasonable and prudent alternatives” to prevent jeopardy to listed species. Ibid. The action agency must undertake as well its own “biological assessment for the purpose of identifying any endangered species or threatened species” likely to be affected by agency action. § 1536(c)(1). After the initiation of consultation, the action agency “shall not make any irreversible or irretrievable commitment of resources” which would foreclose the “formulation or implementation of any reasonable and prudent alternative measures” to avoid jeopardizing listed species. § 1536(d). These action-forcing procedures are “designed to protect some threatened concrete interest,” ante, at 573, n. 8, of persons who observe and work with endangered or threatened species. That is why I am mystified by the Court’s unsupported conclusion that “[tjhis is not a case where plaintiffs *604are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs.” Ante, at 572.

Congress legislates in procedural shades of gray not to aggrandize its own power but to allow maximum Executive discretion in the attainment of Congress’ legislative goals. Congress could simply impose a substantive prohibition on Executive conduct; it could say that no agency action shall result in the loss of more than 5% of any listed species. Instead, Congress sets forth substantive guidelines and allows the Executive, within certain procedural constraints, to decide how best to effectuate the ultimate goal. See American Power & Light Co. v. SEC, 329 U. S. 90, 105 (1946). The Court never has questioned Congress’ authority to impose such procedural constraints on Executive power. Just as Congress does not violate separation of powers by structuring the procedural manner in which the Executive shall carry out the laws, surely the federal courts do not violate separation of powers when, at the very instruction and command of Congress, they enforce these procedures.

To prevent Congress from conferring standing for “procedural injuries” is another way of saying that Congress may not delegate to the courts authority deemed “executive” in nature. Ante, at 577 (Congress may not “transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II, §3”). Here Congress seeks not to delegate “executive” power but only to strengthen the procedures it has legislatively mandated. “We have long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches.” Touby v. United States, 500 U. S. 160, 165 (1991). “Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors.” Ibid. (emphasis added).

*605Ironically, this Court has previously justified a relaxed review of congressional delegation to the Executive on grounds that Congress, in turn, has subjected the exercise of that power to judicial review. INS v. Chadha, 462 U. S. 919, 953-954, n. 16 (1983); American Power & Light Co. v. SEC, 329 U. S., at 105-106. The Court’s intimation today that procedural injuries are not constitutionally cognizable threatens this understanding upon which Congress has undoubtedly relied. In no sense is the Court’s suggestion compelled by our “common understanding of what activities are appropriate to legislatures, to executives, and to courts.” Ante, at 560. In my view, it reflects an unseemly solicitude for an expansion of power of the Executive Branch.

It is to be hoped that over time the Court will acknowledge that some classes of procedural duties are so enmeshed with the prevention of a substantive, concrete harm that an individual plaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural duty. For example, in the context of the NEPA requirement of environmental-impact statements, this Court has acknowledged “it is now well settled that NEPA itself does not mandate particular results [and] simply prescribes the necessary process,” but “these procedures are almost certain to affect the agency’s substantive decision.” Robertson v. Methow Valley Citizens Council, 490 U. S., at 350 (emphasis added). See also Andrus v. Sierra Club, 442 U. S. 347, 350-351 (1979) (“If environmental concerns are not interwoven into the fabric of agency planning, the ‘action-forcing’ characteristics of [the environmental-impact statement requirement] would be lost”). This acknowledgment of an inextricable link between procedural and substantive harm does not reflect improper appellate factfinding. It reflects nothing more than the proper deference owed to the judgment of a coordinate branch — Congress—that certain procedures are directly tied to protection against a substantive harm.

*606In short, determining “injury” for Article III standing purposes is a fact-specific inquiry. “Typically ... the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Allen v. Wright, 468 U. S., at 752. There may be factual circumstances in which a congressionally imposed procedural requirement is so insubstantially connected to the prevention of a substantive harm that it cannot be said to work any conceivable injury to an individual litigant. But, as a general matter, the courts owe substantial deference to Congress’ substantive purpose in imposing a certain procedural requirement. In all events, “[o]ur separation-of-powers analysis does not turn on the labeling of an activity as ‘substantive’ as opposed to ‘procedural.’” Mistretta v. United States, 488 U. S. 361, 393 (1989). There is no room for a per se rule or presumption excluding injuries labeled “procedural” in nature.

III

In conclusion, I cannot join the Court on what amounts to a slash-and-burn expedition through the law of environmental standing. In my view, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 1 Cranch 137, 163 (1803).

I dissent.

1

The record is replete with genuine issues of fact about the harm to endangered species from the Aswan and Mahaweli projects. For example, according to an internal memorandum of the Fish and Wildlife Service, no fewer than eight listed species are found in the Mahaweli project area (Indian elephant, leopard, purple-faced langur, toque macaque, red face malkoha, Bengal monitor, mugger crocodile, and python). App. 78. The memorandum recounts that the Sri Lankan Government has specifically requested assistance from the Agency for International Development (AID) in “mitigating the negative impacts to the wildlife involved.” Ibid. In addition, a letter from the Director of the Fish and Wildlife Service to AID warns: “The magnitude of the Accelerated Mahaweli Development Program could have massive environmental impacts on such an insular ecosystem as the Mahaweli River system.” Id., at 215. It adds: “The Sri Lankan government lacks the necessary finances to undertake any long-term management programs to avoid the negative impacts to the wildlife.” Id., at 216. Finally, in an affidavit' submitted by petitioner for purposes of this litigation, an AID official states that an AID environmental assessment “showed that the [Mahaweli] project could affect several endangered species.” Id., at 159.

2

This section provides in part:

“(a) Requirement for formal consultation. Each Federal agency shall review its actions at the earliest possible time to determine whether any *596action may affect listed species or critical habitat. If such a determination is made, formal consultation is required ....”

The Secretary’s intent to make the regulations binding upon other agencies is even clearer from the discussion accompanying promulgation of the consultation rules. See 61 Fed. Reg. 19928 (1986) (“Several commenters stated that Congress did not intend that the Service interpret or implement section 7, and believed that the Service should recast the regulations as ‘nonbinding guidelines’ that would govern only the Service’s role in consultation .... The Service is satisfied that it has ample authority and legislative mandate to issue this rule, and believes that uniform consultation standards and procedures are necessary to meet its obligations under section 7”).

3

For example, petitioner’s motion before the District Court to dismiss the complaint identified four attorneys from the Department of State and AID (an agency of the Department of State) as “counsel” to the attorneys from the Justice Department in this action. One AID lawyer actually *597entered a formal appearance before the District Court on behalf of AID. On at least one occasion petitioner requested an extension of time to file a brief, representing that “ ‘[a]n extension is necessary for the Department of Justice to consult with . . . the Department of State [on] the brief.’” See Brief for Respondents 31, n. 8. In addition, AID officials have offered testimony in this action.

4

The plurality now suggests that collateral-estoppel principles can have no application here, because the participation of other agencies in this litigation arose after its inception. Borrowing a principle from this Court’s statutory diversity jurisdiction cases and transferring it to the constitutional standing context, the Court observes: ‘“The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.’ ” Ante, at 569, n. 4 (quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 830 (1989)). See also Mollan v. Torrance, 9 Wheat. 537, 539 (1824) (Marshall, C. J.). The plurality proclaims that “[i]t cannot be” that later participation of other agencies in this suit retroactively created a jurisdictional issue that did not exist at the outset. Ante, at 570, n. 4.

The plurality, however, overlooks at least three difficulties with this explanation. In the first place, assuming that the plurality were correct that events as of the initiation of the lawsuit are the only proper jurisdictional reference point, were the Court to follow this rule in this case there would be no question as to the compliance of other agencies, because, as stated at an earlier point in the opinion: “When the Secretary promulgated the regulation at issue here, he thought it was binding on the agencies.” Ante, at 569. This suit was commenced in October 1986, just three months after the regulation took effect. App. 21; 51 Fed. Reg. 19926 (1986). As the plurality further admits, questions about compliance of other agencies with the Secretary’s regulation arose only by later participation of the Solicitor General and other agencies in the suit. Ante, at 569. Thus, it was, to borrow the plurality’s own words, “assuredly not true when this suit was filed, naming the Secretary alone,” ante, at 569, n. 4, that there was any question before the District Court about other agencies being bound.

Second, were the plurality correct that, for purposes of determining redressability, a court may look only to facts as they exist when the complaint is filed, then the Court by implication would render a nullity part of Rule 19 of the Federal Rules of Civil Procedure. Rule 19 provides in part for the joinder of persons if “in the person’s absence complete relief cannot be accorded among those already parties.” This presupposes non-redressability at the outset of the litigation. Under the plurality’s rationale, a district court would have no authority to join indispensable parties, because it would, as an initial matter, have no jurisdiction for lack of the power to provide redress at the outset of the litigation.

Third, the rule articulated in Newman-Green is that the existence of federal jurisdiction “ordinarily” depends on the facts at the initiation of *599the lawsuit. This is no ironclad per se rule without exceptions. Had the Solicitor General, for example, taken a position during this appeal that the § 7 consultation requirement does in fact apply extraterritorially, the controversy would be moot, and this Court would be without jurisdiction.

In the plurality’s view, federal subject-matter jurisdiction appears to be a one-way street running the Executive Branch’s way. When the Executive Branch wants to dispel jurisdiction over an action against an agency, it is free to raise at any point in the litigation that other nonparty agencies might not be bound by any determinations of the one agency defendant. When a plaintiff, however, seeks to preserve jurisdiction in the face of a claim of nonredressability, the plaintiff is not free to point to the involvement of nonparty agencies in subsequent parts of the litigation. The plurality does not explain why the street runs only one way — why some actions of the Executive Branch subsequent to initiation of a lawsuit are cognizable for jurisdictional purposes but others simply are not.

More troubling still is the distance this one-way street carries the plurality from the underlying purpose of the standing doctrine. The purpose of the standing doctrine is to ensure that courts do not render advisory opinions rather than resolve genuine controversies between adverse parties. Under the plurality’s analysis, the federal courts are to ignore their present ability to resolve a concrete controversy if at some distant point in the past it could be said that redress could not have been provided. The plurality perverts the standing inquiry.

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT.

Fowler V. Harper argued the cause and filed a brief for appellants.

Raymond J. Cannon, Assistant Attorney General of Connecticut, argued the cause for appellee. With him on the brief was Albert L. Coles, Attorney General.

Harriet Pilpel argued the cause for the Planned Parenthood Federation of America, Inc., as amicus curiae, urging reversal. With her on the brief were Morris L. Ernst and Nancy F. Wechsler.

Briefs of amici curiae, urging reversal, were filed by Whitney North Seymour for Dr. Willard Allen et al., and by Osmond K. Fraenkel and Rowland Watts for the American Civil Liberties Union et al.

MR. JUSTICE FRANKFURTER announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE CLARK and MR. JUSTICE WHITTAKER join.

These appeals challenge the constitutionality, under the Fourteenth Amendment, of Connecticut statutes which, as authoritatively construed by the Connecticut Supreme Court of Errors, prohibit the use of contraceptive devices and the giving of medical advice in the use of such devices. In proceedings seeking declarations of law, not on review of convictions for violation of the statutes, that court has ruled that these statutes would be applicable in the case of married couples and even under claim that conception would constitute a serious threat to the health or life of the female spouse.

No. 60 combines two actions brought in a Connecticut Superior Court for declaratory relief. The complaint in the first alleges that the plaintiffs, Paul and Pauline Poe,^[1] are a husband and wife, thirty and twenty-six years old respectively, who live together and have no children. Mrs. Poe has had three consecutive pregnancies terminating in infants with multiple congenital abnormalities from which each died shortly after birth. Plaintiffs have consulted Dr. Buxton, an obstetrician and gynecologist of eminence, and it is Dr. Buxton's opinion that the cause of the infants' abnormalities is genetic, although the underlying "mechanism" is unclear. In view of the great emotional stress already suffered by plaintiffs, the probable consequence of another pregnancy is psychological strain extremely disturbing to the physical and mental health of both husband and wife. Plaintiffs know that it is Dr. Buxton's opinion that the best and safest medical treatment which could be prescribed for their situation is advice in methods of preventing conception. Dr. Buxton knows of drugs, medicinal articles and instruments which can be safely used to effect contraception. Medically, the use of these devices is indicated as the best and safest preventive measure necessary for the protection of plaintiffs' health. Plaintiffs, however, have been unable to obtain this information for the sole reason that its delivery and use may or will be claimed by the defendant State's Attorney (appellee in this Court) to constitute offenses against Connecticut law. The State's Attorney intends to prosecute offenses against the State's laws, and claims that the giving of contraceptive advice and the use of contraceptive devices would be offenses forbidden by Conn. Gen. Stat. Rev., 1958, §§ 53-32 and 54-196.^[2] Alleging irreparable injury and a substantial uncertainty of legal relations (a local procedural requisite for a declaration), plaintiffs ask a declaratory judgment that §§ 53-32 and 54-196 are unconstitutional, in that they deprive the plaintiffs of life and liberty without due process of law.

The second action in No. 60 is brought by Jane Doe, a twenty-five-year-old housewife. Mrs. Doe, it is alleged, lives with her husband, they have no children; Mrs. Doe recently underwent a pregnancy which induced in her a critical physical illness—two weeks' unconsciousness and a total of nine weeks' acute sickness which left her with partial paralysis, marked impairment of speech, and emotional instability. Another pregnancy would be exceedingly perilous to her life. She, too, has consulted Dr. Buxton, who believes that the best and safest treatment for her is contraceptive advice. The remaining allegations of Mrs. Doe's complaint, and the relief sought, are similar to those in the case of Mr. and Mrs. Poe.

In No. 61, also a declaratory judgment action, Dr. Buxton is the plaintiff. Setting forth facts identical to those alleged by Jane Doe, he asks that the Connecticut statutes prohibiting his giving of contraceptive advice to Mrs. Doe be adjudged unconstitutional, as depriving him of liberty and property without due process.

In all three actions, demurrers were advanced, inter alia, on the ground that the statutes attacked had been previously construed and sustained by the Supreme Court of Errors of Connecticut, and thus there did not exist the uncertainty of legal relations requisite to maintain suits for declaratory judgment. While the Connecticut Supreme Court of Errors in sustaining the demurrers referred to this local procedural ground, relying on State v. Nelson, 126 Conn. 412, 11 A. 2d 856,and Tileston v. Ullman, 129 Conn. 84, 26 A. 2d 582, app. dism'd, 318 U. S. 44, we cannot say that its decision rested on it. 147 Conn. 48, 156 A. 2d 508. We noted probable jurisdiction. 362 U. S. 987.

Appellants' complaints in these declaratory judgment proceedings do not clearly, and certainly do not in terms, allege that appellee Ullman threatens to prosecute them for use of, or for giving advice concerning, contraceptive devices. The allegations are merely that, in the course of his public duty, he intends to prosecute any offenses against Connecticut law, and that he claims that use of and advice concerning contraceptives would constitute offenses. The lack of immediacy of the threat described by these allegations might alone raise serious questions of non-justiciability of appellants' claims. See United Public Workers v. Mitchell, 330 U. S. 75, 88. But even were we to read the allegations to convey a clear threat of imminent prosecutions, we are not bound to accept as true all that is alleged on the face of the complaint and admitted, technically, by demurrer, any more than the Court is bound by stipulation of the parties. Swift & Co. v. Hocking Valley R. Co.,243 U. S. 281, 289. Formal agreement between parties that collides with plausibility is too fragile a foundation for indulging in constitutional adjudication.

The Connecticut law prohibiting the use of contraceptives has been on the State's books since 1879. Conn. Acts 1879, c. 78. During the more than three-quarters of a century since its enactment, a prosecution for its violation seems never to have been initiated, save in State v. Nelson, 126 Conn. 412, 11 A. 2d 856. The circumstances of that case, decided in 1940, only prove the abstract character of what is before us. There, a test case was brought to determine the constitutionality of the Act as applied against two doctors and a nurse who had allegedly disseminated contraceptive information. After the Supreme Court of Errors sustained the legislation on appeal from a demurrer to the information, the State moved to dismiss the information. Neither counsel nor our own researches have discovered any other attempt to enforce the prohibition of distribution or use of contraceptive devices by criminal process.^[3] The unreality of these law suits is illumined by another circumstance. We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drug stores.^[4]Yet no prosecutions are recorded; and certainly such ubiquitous, open, public sales would more quickly invite the attention of enforcement officials than the conduct in which the present appellants wish to engage— the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. What was said in another context is relevant here. "Deeply embedded traditional ways of carrying out state policy . . ."—or not carrying it out—"are often tougher and truer law than the dead words of the written text." Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362, 369.

The restriction of our jurisdiction to cases and controversies within the meaning of Article III of the Constitution, see Muskrat v. United States, 219 U. S. 346, is not the sole limitation on the exercise of our appellate powers, especially in cases raising constitutional questions. The policy reflected in numerous cases and over a long period was thus summarized in the oft-quoted statement of Mr. Justice Brandeis: "The Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341, 346 (concurring opinion). In part the rules summarized in the Ashwander opinion have derived from the historically defined, limited nature and function of courts and from the recognition that, within the framework of our adversary system, the adjudicatory process is most securely founded when it is exercised under the impact of a lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity. See Little v. Bowers, 134 U. S. 547, 558; California v. San Pablo & Tulare R. Co., 149 U. S. 308, 314; United States v. Fruehauf, 365 U. S. 146, 157. In part they derive from the fundamental federal and tripartite character of our National Government and from the role—restricted by its very responsibility—of the federal courts, and particularly this Court, within that structure. See the Note to Hayburn's Case, 2 Dall. 409; Massachusetts v. Mellon, 262 U. S. 447; 488-489; Watson v. Buck, 313 U. S. 387, 400-403; Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 471.

These considerations press with special urgency in cases challenging legislative action or state judicial action as repugnant to the Constitution. "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." Parker v. County of Los Angeles, 338 U. S. 327, 333. See also Liverpool, N. Y. & P. S. S. Co. v. Commissioners, 113 U. S. 33, 39. The various doctrines of "standing,"^[5] "ripeness,"^[6] and "mootness,"^[7]which this Court has evolved with particular, though not exclusive, reference to such cases are but several manifestations—each having its own "varied application"^[8]—of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action. Stearns v. Wood, 236 U. S. 75; Texas v. Interstate Commerce Comm'n, 258 U. S. 158; United Public Workers v. Mitchell, 330 U. S. 75, 89-90. "This court can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual, or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here." Georgia, v. Stanton, 6 Wall. 50, 75, approvingly quoting Mr. Justice Thompson, dissenting, in Cherokee Nation v. Georgia, 5 Pet. 1, 75; also quoted in New Jersey v. Sargent, 269 U. S. 328, 331. "The party who invokes the power [to annul legislation on grounds of its unconstitutionality] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement . . . ." Massachusetts v. Mellon, 262 U. S. 447, 488.^[9]

This principle was given early application and has been recurringly enforced in the Court's refusal to entertain cases which disclosed a want of a truly adversary contest, of a collision of actively asserted and differing claims. See, e. g., Cleveland v. Chamberlain, 1 Black 419; Wood-Paper Co. v. Heft, 8 Wall. 333. Such cases may not be "collusive" in the derogatory sense of Lord v. Veazie, 8 How. 251—in the sense of merely colorable disputes got up to secure an advantageous ruling from the Court. See South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U. S. 300, 301. The Court has found unfit for adjudication any cause that "is not in any real sense adversary," that "does not assume the `honest and actual antagonistic assertion of rights' to be adjudicated —a safeguard essential to the integrity of the judicial process, and one which we have held to be indispensable to adjudication of constitutional questions by this Court." United States v. Johnson, 319 U. S. 302, 305. The requirement for adversity was classically expounded in Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 344-345:

". . . The theory upon which, apparently, this suit was brought is that parties have an appeal from the legislature to the courts; and that the latter are given an immediate and general supervision of the constitutionality of the acts of the former. Such is not true. Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."

What was said in the Wellman case found ready application in proceedings brought under modern declaratory judgment procedures. For just as the declaratory judgment device does not "purport to alter the character of the controversies which are the subject of the judicial power under the Constitution," United States v. West Virginia, 295 U. S. 463, 475, it does not permit litigants to invoke the power of this Court to obtain constitutional rulings in advance of necessity. Electric Bond & Share Co. v. Securities and Exchange Comm'n, 303 U. S. 419, 443. The Court has been on the alert against use of the declaratory judgment device for avoiding the rigorous insistence on exigent adversity as a condition for evoking Court adjudication. This is as true of state court suits for declaratory judgments as of federal. By exercising their jurisdiction, state courts cannot determine the jurisdiction to be exercised by this Court. Tyler v. Judges of the Court of Registration, 179 U. S. 405; Doremus v. Board of Education, 342 U. S. 429. Although we have held that a state declaratory-judgment suit may constitute a case or controversy within our appellate jurisdiction, it is to be reviewed here only "so long as the case retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy, which is finally determined by the judgment below." Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249, 264. It was with respect to a state-originating declaratory judgment proceeding that we said, in Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 471, that "The extent to which the declaratory judgment procedure may be used in the federal courts to control state action lies in the sound discretion of the Court. . . ." Indeed, we have recognized, in such cases, that ". . . the discretionary element characteristic of declaratory jurisdiction, and imported perhaps from equity jurisdiction and practice without the remedial phase, offers a convenient instrument for making . . . effective . . ." the policy against premature constitutional decision. Rescue Army v. Municipal Court, 331 U. S. 549, 573, n. 41.

Insofar as appellants seek to justify the exercise of our declaratory power by the threat of prosecution, facts which they can no more negative by complaint and demurrer than they could by stipulation preclude our determining their appeals on the merits. Cf. Bartemeyer v. Iowa, 18 Wall. 129, 134-135. It is clear that the mere existence of a state penal statute would constitute insufficient grounds to support a federal court's adjudication of its constitutionality in proceedings brought against the State's prosecuting officials if real threat of enforcement is wanting. See Ex parte La Prade, 289 U. S. 444, 458. If the prosecutor expressly agrees not to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary case as will be reviewed here. C. I. O. v. McAdory, 325 U. S. 472, 475. Eighty years of Connecticut history demonstrate a similar, albeit tacit agreement. The fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. This Court cannot be umpire to debates concerning harmless, empty shadows. To find it necessary to pass on these statutes now, in order to protect appellants from the hazards of prosecution. would be to close our eyes to reality.

Nor does the allegation by the Poes and Doe that they are unable to obtain information concerning contraceptive devices from Dr. Buxton, "for the sole reason that the delivery and use of such information and advice may or will be claimed by the defendant State's Attorney to constitute offenses," disclose a necessity for present constitutional decision. It is true that this Court has several times passed upon criminal statutes challenged by persons who claimed that the effects of the statutes were to deter others from maintaining profitable or advantageous relations with the complainants. See, e. g., Truax v. Raich, 239 U. S. 33; Pierce v. Society of Sisters, 268 U. S. 510. But in these cases the deterrent effect complained of was one which was grounded in a realistic fear of prosecution. We cannot agree that if Dr. Buxton's compliance with these statutes is uncoerced by the risk of their enforcement, his patients are entitled to a declaratory judgment concerning the statutes' validity. And, with due regard to Dr. Buxton's standing as a physician and to his personal sensitiveness, we cannot accept, as the basis of constitutional adjudication, other than as chimerical the fear of enforcement of provisions that have during so many years gone uniformly and without exception unenforced.

Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures, including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought. Both these factors justify withholding adjudication of the constitutional issue raised under the circumstances and in the manner in which they are now before the Court.

Dismissed.

MR. JUSTICE BLACK dissents because he believes that the constitutional questions should be reached and decided.

MR. JUSTICE BRENNAN, concurring in the judgment.

I agree that this appeal must be dismissed for failure to present a real and substantial controversy which unequivocally calls for adjudication of the rights claimed in advance of any attempt by the State to curtail them by criminal prosecution. I am not convinced, on this skimpy record, that these appellants as individuals are truly caught in an inescapable dilemma. The true controversy in this case is over the opening of birth-control clinics on a large scale; it is that which the State has prevented in the past, not the use of contraceptives by isolated and individual married couples. It will be time enough to decide the constitutional questions urged upon us when, if ever, that real controversy flares up again. Until it does, or until the State makes a definite and concrete threat to enforce these laws against individual married couples—a threat which it has never made in the past except under the provocation of litigation—this Court may not be compelled to exercise its most delicate power of constitutional adjudication.

MR. JUSTICE DOUGLAS, dissenting.

I.

These cases are dismissed because a majority of the members of this Court conclude, for varying reasons, that this controversy does not present a justiciable question. That conclusion is too transparent to require an extended reply. The device of the declaratory judgment is an honored one. Its use in the federal system is restricted to "cases" or "controversies" within the meaning of Article III. The question must be "appropriate for judicial determination," not hypothetical, abstract, academic or moot. Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240. It must touch "the legal relations of parties having adverse legal interests." Id., 240-241. It must be "real and substantial" and admit of "specific relief through a decree of a conclusive character." Id., 241. The fact that damages are not awarded or an injunction does not issue, the fact that there are no allegations of irreparable injury are irrelevant. Id., 241. This is hornbook law. The need for this remedy in the federal field was summarized in a Senate Report as follows:

". . . it is often necessary, in the absence of the declaratory judgment procedure, to violate or purport to violate a statute in order to obtain a judicial determination of its meaning or validity." S. Rep. No. 1005, 73d Cong., 2d Sess., pp. 2-3.

If there is a case where the need for this remedy in the shadow of a criminal prosecution is shown, it is this one, as MR. JUSTICE HARLAN demonstrates. Plaintiffs in No. 60 are two sets of husband and wife. One wife is pathetically ill, having delivered a stillborn fetus. If she becomes pregnant again, her life will be gravely jeopardized. This couple have been unable to get medical advice concerning the "best and safest" means to avoid pregnancy from their physician, plaintiff in No. 61, because if he gave it he would commit a crime. The use of contraceptive devices would also constitute a crime. And it is alleged—and admitted by the State—that the State's Attorney intends to enforce the law by prosecuting offenses under the laws.

 A public clinic dispensing birth-control information has indeed been closed by the State. Doctors and a nurse working in that clinic were arrested by the police and charged with advising married women on the use of contraceptives. That litigation produced State v. Nelson, 126 Conn. 412, 11 A. 2d 856, which upheld these statutes. That same police raid on the clinic resulted in the seizure of a quantity of the clinic's contraception literature and medical equipment and supplies. The legality of that seizure was in question in State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A. 2d 863.

The Court refers to the Nelson prosecution as a "test case" and implies that it had little impact. Yet its impact was described differently by a contemporary observer who concluded his comment with this sentence: "This serious setback to the birth control movement [the Nelson case] led to the closing of all the clinics in the state, just as they had been previously closed in the state of Massachusetts."^[1] At oral argument, counsel for appellants confirmed that the clinics are still closed. In response to a question from the bench, he affirmed that "no public or private clinic" has dared give birth-control advice since the decision in the Nelson case.^[2]

These, then, are the circumstances in which the Court feels that it can, contrary to every principle of American or English common law,^[3] go outside the record to conclude that there exists a "tacit agreement" that these statutes will not be enforced. No lawyer, I think, would advise his clients to rely on that "tacit agreement." No police official, I think, would feel himself bound by that "tacit agreement." After our national experience during the prohibition era, it would be absurd to pretend that all criminal statutes are adequately enforced. But that does not mean that bootlegging was the less a crime. Cf. Costello v. United States, 365 U. S. 265. In fact, an arbitrary administrative pattern of non-enforcement may increase the hardships of those subject to the law. See J. Goldstein, Police Discretion Not to Invoke the Criminal Process, 69 Yale L. J. 543.

When the Court goes outside the record to determine that Connecticut has adopted "The undeviating policy of nullification . . . of its anti-contraceptive laws," it selects a particularly poor case in which to exercise such a novel power. This is not a law which is a dead letter. Twice since 1940, Connecticut has re-enacted these laws as part of general statutory revisions. Consistently, bills to remove the statutes from the books have been rejected by the legislature. In short, the statutes—far from being the accidental left-overs of another era—are the center of a continuing controversy in the State. See, e. g., The New Republic, May 19, 1947, p. 8.

Again, the Court relies on the inability of counsel to show any attempts, other than the Nelson case, "to enforce the prohibition of distribution or use of contraceptive devices by criminal process." Yet, on oral argument, counsel for the appellee stated on his own knowledge that several proprietors had been prosecuted in the "minor police courts of Connecticut" after they had been "picked up" for selling contraceptives. The enforcement of criminal laws in minor courts has just as much impact as in those cases where appellate courts are resorted to. The need of the protection of constitutional guarantees, and the right to them, are not less because the matter is small or the court lowly. See Thompson v. City of Louisville, 362 U. S. 199; Tumey v. Ohio, 273 U. S. 510. Nor is the need lacking because the dispensing of birth-control information is by a single doctor rather than by birth-control clinics. The nature of the controversy would not be changed one iota had a dozen doctors, representing a dozen birth-control clinics, sued for remedial relief.

What are these people—doctor and patients—to do? Flout the law and go to prison? Violate the law surreptitiously and hope they will not get caught? By today's decision we leave them no other alternatives. It is not the choice they need have under the regime of the declaratory judgment and our constitutional system. It is not the choice worthy of a civilized society. A sick wife, a concerned husband, a conscientious doctor seek a dignified, discrete, orderly answer to the critical problem confronting them. We should not turn them away and make them flout the law and get arrested to have their constitutional rights determined. See Railway Mail Assn. v. Corsi, 326 U. S. 88. They are entitled to an answer to their predicament here and now.

II.

The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion. The leading cases on freedom of expression are generally framed with reference to public debate and discourse. But as Chafee said, "the First Amendment and other parts of the law erect a fence inside which men can talk. The law-makers, legislators and officials stay on the outside of that fence. But what the men inside the fence say when they are let alone is no concern of the law." The Blessings of Liberty (1956), p. 108.

The teacher (Sweezy v. New Hampshire, 354 U. S. 234) as well as the public speaker (Thomas v. Collins, 323 U. S. 516) is included. The actor on stage or screen, the artist whose creation is in oil or clay or marble, the poet whose reading public may be practically nonexistent, the musician and his musical scores, the counselor whether priest, parent or teacher no matter how small his audience —these too are beneficiaries of freedom of expression. The remark by President James A. Garfield that his ideal of a college was a log in the woods with a student at one end and Mark Hopkins at another (9 Dict. Am. Biog., p. 216) puts the present problem in proper First Amendment dimensions. Of course a physician can talk freely and fully with his patient without threat of retaliation by the State. The contrary thought—the one endorsed sub silentio by the courts below—has the cast of regimentation about it, a cast at war with the philosophy and presuppositions of this free society.

We should say with Kant that "It is absurd to expect to be enlightened by Reason, and at the same time to prescribe to her what side of the question she must adopt."^[4] Leveling the discourse of medical men to the morality of a particular community is a deadening influence. Mill spoke of the pressures of intolerant groups that produce "either mere conformers to commonplace, or time-servers for truth."^[5] We witness in this case a sealing of the lips of a doctor because he desires to observe the law, obnoxious as the law may be. The State has no power to put any sanctions of any kind on him for any views or beliefs that he has or for any advice he renders. These are his professional domains into which the State may not intrude. The chronicles are filled with sad attempts of government to stomp out ideas, to ban thoughts because they are heretical or obnoxious. As Mill stated, "Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion."^[6] When that happens society suffers. Freedom working underground, freedom bootlegged around the law is freedom crippled. A society that tells its doctors under pain of criminal penalty what they may not tell their patients is not a free society. Only free exchange of views and information is consistent with "a civilization of the dialogue," to borrow a phrase from Dr. Robert M. Hutchins. See Wieman v. Updegraff, 344 U. S. 183, 197 (concurring opinion).

III.

I am also clear that this Connecticut law as applied to this married couple deprives them of "liberty" without due process of law, as that concept is used in the Fourteenth Amendment.

The first eight Amendments to the Constitution have been made applicable to the States only in part. My view has been that when the Fourteenth Amendment was adopted, its Due Process Clause incorporated all of those Amendments. See Adamson v. California, 332 U. S. 46, 68 (dissenting opinion). Although the history of the Fourteenth Amendment may not be conclusive, the words "due process" acquired specific meaning from Anglo-American experience.^[7] As MR. JUSTICE BRENNAN recently stated, "The Bill of Rights is the primary source of expressed information as to what is meant by constitutional liberty. The safeguards enshrined in it are deeply etched in the foundations of America's freedoms." The Bill of Rights and the States (1961), 36 N. Y. U. L. Rev. 761, 776. When the Framers wrote the Bill of Rights they enshrined in the form of constitutional guarantees those rights—in part substantive, in part procedural —which experience indicated were indispensable to a free society. Some would disagree as to their importance; the debate concerning them did indeed start before their adoption and has continued to this day. Yet the constitutional conception of "due process" must, in my view, include them all until and unless there are amendments that remove them. That has indeed been the view of a full court of nine Justices, though the members who make up that court unfortunately did not sit at the same time.^[8]

Though I believe that "due process" as used in the Fourteenth Amendment includes all of the first eight Amendments, I do not think it is restricted and confined to them. We recently held that the undefined "liberty" in the Due Process Clause of the Fifth Amendment includes freedom to travel. Kent v. Dulles, 357 U. S. 116, 125-127. Cf. Edwards v. California, 314 U. S. 160, 177, 178 (concurring opinion). The right "to marry, establish a home and bring up children" was said in Meyer v. Nebraska, 262 U. S. 390, 399, to come within the "liberty" of the person protected by the Due Process Clause of the Fourteenth Amendment. As I indicated in my dissent in Public Utilities Comm'n v. Pollak, 343 U. S. 451, 467, "liberty" within the purview of the Fifth Amendment includes the right of "privacy," a right I thought infringed in that case because a member of a "captive audience" was forced to listen to a government-sponsored radio program. "Liberty" is a conception that sometimes gains content from the emanations of other specific guarantees (N. A. A. C. P. v. Alabama, 357 U. S. 449, 460) or from experience with the requirements of a free society.

For years the Court struck down social legislation when a particular law did not fit the notions of a majority of Justices as to legislation appropriate for a free enterprise system. Mr. Justice Holmes, dissenting, rightly said that "a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States." Lochner v. New York, 198 U. S. 45, 75-76.

The error of the old Court, as I see it, was not in entertaining inquiries concerning the constitutionality of social legislation but in applying the standards that it did. See Tot v. United States, 319 U. S. 463; Giboney v. Empire Storage Co., 336 U. S. 490. Social legislation dealing with business and economic matters touches no particularized prohibition of the Constitution, unless it be the provision of the Fifth Amendment that private property should not be taken for public use without just compensation. If it is free of the latter guarantee, it has a wide scope for application. Some go so far as to suggest that whatever the majority in the legislature says goes (cf. United States v. Chandler-Dunbar Co., 229 U. S. 53, 64), that there is no other standard of constitutionality. That reduces the legislative power to sheer voting strength and the judicial function to a matter of statistics. As Robert M. Hutchins has said, "It is obviously impossible to raise questions of freedom and justice if the sole duty of the court is to decide whether the case at bar falls within the scope of the duly issued command of a duly constituted sovereign." Two Faces of Federalism (1960), p. 18. While the legislative judgment on economic and business matters is "well-nigh conclusive" (Berman v. Parker,348 U. S. 26, 32), it is not beyond judicial inquiry. Cf. United States v. Oregon, 366 U. S. 643, 649 (dissenting opinion).

The regime of a free society needs room for vast experimentation. Crises, emergencies, experience at the individual and community levels produce new insights; problems emerge in new dimensions; needs, once never imagined, appear. To stop experimentation and the testing of new decrees and controls is to deprive society of a needed versatility. Yet to say that a legislature may do anything not within a specific guarantee of the Constitution may be as crippling to a free society as to allow it to override specific guarantees so long as what it does fails to shock the sensibilities of a majority of the Court.^[9]

The present legislation is an excellent example. If a State banned completely the sale of contraceptives in drug stores, the case would be quite different. It might seem to some or to all judges an unreasonable restriction. Yet it might not be irrational to conclude that a better way of dispensing those articles is through physicians. The same might be said of a state law banning the manufacture of contraceptives. Health, religious, and moral arguments might be marshalled pro and con. Yet it is not for judges to weigh the evidence. Where either the sale or the manufacture is put under regulation, the strictures are on business and commercial dealings that have had a long history with the police power of the States.

The present law, however, deals not with sale, not with manufacture, but with use.It provides:

"Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned." Conn. Gen. Stat., 1958, § 53-32.

The regulation as applied in this case touches the relationship between man and wife. It reaches into the intimacies of the marriage relationship. If we imagine a regime of full enforcement of the law in the manner of an Anthony Comstock,^[10] we would reach the point where search warrants issued and officers appeared in bedrooms to find out what went on.^[11] It is said that this is not that case. And so it is not. But when the State makes "use" a crime and applies the criminal sanction to man and wife, the State has entered the innermost sanctum of the home. If it can make this law, it can enforce it. And proof of its violation necessarily involves an inquiry into the relations between man and wife.

That is an invasion of the privacy that is implicit in a free society. A noted theologian who conceives of the use of a contraceptive as a "sin" nonetheless admits that a "use" statute such as this enters a forbidden domain.

". . . the Connecticut statute confuses the moral and legal, in that it transposes without further ado a private sin into a public crime. The criminal act here is the private use of contraceptives. The real area where the coercions of law might, and ought to, be applied, at least to control an evil—namely, the contraceptive industry—is quite overlooked. As it stands, the statute is, of course, unenforceable without police invasion of the bedroom, and is therefore indefensible as a piece of legal draughtsmanship." Murray, We Hold These Truths (1960), pp. 157-158.

This notion of privacy is not drawn from the blue.^[12] It emanates from the totality of the constitutional scheme under which we live.^[13]

"One of the earmarks of the totalitarian understanding of society is that it seeks to make all subcommunities—family, school, business, press, church—completely subject to control by the State. The State then is not one vital institution among others: a policeman, a referee, and a source of initiative for the common good. Instead, it seeks to be coextensive with family and school, press, business community, and the Church, so that all of these component interest groups are, in principle, reduced to organs and agencies of the State. In a democratic political order, this megatherian concept is expressly rejected as out of accord with the democratic understanding of social good, and with the actual make-up of the human community."^[14]

Can there be any doubt that a Bill of Rights that in time of peace bars soldiers from being quartered in a home "without the consent of the Owner"^[15] should also bar the police from investigating the intimacies of the marriage relation? The idea of allowing the State that leeway is congenial only to a totalitarian regime.

I dissent from a dismissal of these cases and our refusal to strike down this law.

MR. JUSTICE HARLAN, dissenting.

I am compelled, with all respect, to dissent from the dismissal of these appeals. In my view the course which the Court has taken does violence to established concepts of "justiciability," and unjustifiably leaves these appellants under the threat of unconstitutional prosecution. Regrettably, an adequate exposition of my views calls for a dissenting opinion of unusual length.

Between them these suits seek declaratory relief against the threatened enforcement of Connecticut's antibirthcontrol laws making criminal the use of contraceptives, insofar as such laws relate to the use of contraceptives by married persons and the giving of advice to married persons in their use.^[1] The appellants, a married couple, a married woman, and a doctor, ask that it be adjudged, contrary to what the Connecticut courts have held, that such laws, as threatened to be applied to them in circumstances described in the opinion announcing the judgment of the Court (ante, pp. 498-500), violate the Fourteenth Amendment, in that they deprive appellants of life, liberty, or property without due process.

The plurality opinion of the Court gives, as the basis for dismissing the appeals, the reason that, as to the two married appellants, the lack of demonstrated enforcement of the Connecticut statute bespeaks an absence of exigent adversity which is posited as the condition for evoking adjudication from us, and, as to the doctor, that his compliance with the state statute is uncoerced by any "realistic fear of prosecution," giving due recognition to his "standing as a physician and to his personal sensitiveness." With these reasons it appears that the concurring opinion agrees.

In Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 462, it was said that "declaratory judgment procedure may be resorted to only in the sound discretion of the Court and where the interests of justice will be advanced and an adequate and effective judgment may be rendered." In my view of these cases a present determination of the Constitutional issues is the only course which will advance justice, and I can find no sound reason born of considerations as to the possible inadequacy or ineffectiveness of the judgment that might be rendered which justifies the Court's contrary disposition. While ordinarily I would not deem it appropriate to deal, in dissent, with Constitutional issues which the Court has not reached, I shall do so here because such issues, as I see things, are entangled with the Court's conclusion as to the nonjusticiability of these appeals.

PART ONE.

Justiciability.

There can be no quarrel with the plurality opinion's statement that "Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification," but, with deference, the fact that justiciability is not precisely definable does not make it ineffable. Although a large number of cases are brought to bear on the conclusion that is reached, I think it is fairly demonstrable that the authorities fall far short of compelling dismissal of these appeals.^[2] Even so, it is suggested that the cases do point the way to a "rigorous insistence on exigent adversity" and a "policy against premature constitutional decision," which properly understood does indeed demand that result.

The policy referred to is one to which I unreservedly subscribe. Without undertaking to be definitive, I would suppose it is a policy the wisdom of which is woven of several strands: (1) Due regard for the fact that the source of the Court's power lies ultimately in its duty to decide, in conformity with the Constitution, the particular controversies which come to it, and does not arise from some generalized power of supervision over state and national legislatures; (2) therefore it should insist that litigants bring to the Court interests and rights which require present recognition and controversies demanding immediate resolution; (3) also it follows that the controversy must be one which is in truth and fact the litigant's own, so that the clash of adversary contest which is needed to sharpen and illuminate issues is present and gives that aid on which our adjudicatory system has come to rely; (4) finally, it is required that other means of redress for the particular right claimed be unavailable, so that the process of the Court may not become overburdened and conflicts with other courts or departments of government may not needlessly be created, which might come about if either those truly affected are not the ones demanding relief, or if the relief we can give is not truly needed.

In particularization of this composite policy the Court, in the course of its decisions on matters of justiciability, has developed and given expression to a number of important limitations on the exercise of its jurisdiction, the presence or absence of which here should determine the justiciability of these appeals. Since all of them are referred to here in one way or another, it is well to proceed to a disclosure of those which are not involved in the present appeals, thereby focusing attention on the one factor on which reliance appears to be placed by both the plurality and concurring opinions in this instance.

First: It should by now be abundantly clear that the fact that only Constitutional claims are presented in proceedings seeking anticipatory relief against state criminal statutes does not for that reason alone make the claims premature. See, e. g., Terrace v. Thompson, 263 U. S. 197; Pierce v. Society of Sisters, 268 U. S. 510; Euclid v. Ambler Co., 272 U. S. 365. Whatever general pronouncements may be found to the contrary must, in context, be seen to refer to considerations quite different from anything present in these cases.

Thus in Alabama State Federation of Labor v. McAdory, supra, anticipatory relief was withheld for the precise reason that normally this Court ought not to consider the Constitutionality of a state statute in the absence of a controlling interpretation of its meaning and effect by the state courts. To the same effect see Parker v. Los Angeles County, 338 U. S. 327; Watson v. Buck, 313 U. S. 387; Beal v. Missouri Pacific R. Co., 312 U. S. 45. Indeed, without belaboring the point, the principle that anticipatory relief against state criminal statutes is not unavailable as a general matter may best be illustrated by several cases recently decided in this Court. In Harrison v. N. A. A. C. P., 360 U. S. 167, the premise of our action was that anticipatory relief should be obtained, if possible —with review here on certiorari or appeal—in a state court which could then authoritatively construe a new and ambiguous state statute; only if such relief were unavailable, should a Federal District Court exercise its  statutory jurisdiction. And in our recent decisions upholding the Constitutionality of state Sunday-closing laws, 366 U. S. 420, et seq., not one of the opinions paused even slightly over the appropriateness of anticipatory relief, although in one case that issue was argued, Gallagher v. Crown Kosher Super Market, 366 U. S. 617.

Hence, any language in the cases where the Court has abstained from exercising its jurisdiction, to the effect that we should not "entertain constitutional questions in advance of the strictest necessity," Parker v. Los Angeles County, supra, at 333, is not at all apposite in the present cases. For these appeals come to us from the highest court of Connecticut, thus affording us—in company with previous state interpretations of the same statute—a clear construction of the scope of the statute, thereby in effect assuring that our review constitutes no greater interference with state administration than the state procedures themselves allow.

Second: I do not think these appeals may be dismissed for want of "ripeness" as that concept has been understood in its "varied applications."^[3] There is no lack of "ripeness" in the sense that is exemplified by cases such as Stearns v. Wood, 236 U. S. 75; Electric Bond & Share Co. v. Securities & Exchange Comm'n, 303 U. S. 419; United Public Workers v. Mitchell, 330 U. S. 75; International Longshoremen's Union v. Boyd, 347 U. S. 222; and perhaps again Parker v. Los Angeles County, supra. In all of those cases the lack of ripeness inhered in the fact that the need for some further procedure, some further contingency of application or interpretation, whether judicial, administrative or executive, or some further clarification of the intentions of the claimant, served to make remote the issue which was sought to be presented to the Court. Certainly the appellants have stated in their pleadings fully and unequivocally what it is that they intend to do; no clarifying or resolving contingency stands in their way before they may embark on that conduct. Thus there is no circumstance besides that of detection or prosecution to make remote the particular controversy. And it is clear beyond cavil that the mere fact that a controversy such as this is rendered still more unavoidable by an actual prosecution, is not alone sufficient to make the case too remote, not ideally enough "ripe" for adjudication, at the prior stage of anticipatory relief.

Moreover, it follows from what has already been said that there is no such want of ripeness as was presented in Rescue Army v. Municipal Court, 331 U. S. 549, or in our recent decisions dismissing the appeals in Atlanta Newspapers v. Grimes, 364 U. S. 290, and United States v. Fruehauf, 365 U. S. 146, where the records presented for adjudication a controversy so artificially truncated as to make the cases not susceptible to intelligent decision. I cannot see what further elaboration is required to enable us to decide the appellants' claims, and indeed neither the plurality opinion nor the concurring opinion—notwithstanding the latter's characterization of this record as "skimpy"—suggests what more grist is needed before the judicial mill could turn.

Third: This is not a feigned, hypothetical, friendly or colorable suit such as discloses "a want of a truly adversary contest." Clearly these cases are not analogous to Wood-Paper Co. v. Heft, 8 Wall. 333, or South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U. S. 300, where prior to consideration the controversy in effect became moot by the merger of the two contesting interests. Nor is there any question of collusion as in Lord v. Veazie, 8 How. 251, or in United States v. Johnson, 319 U. S. 302. And there is nothing to suggest that the parties by their conduct of this litigation have cooperated to force an adjudication of a Constitutional issue which— were the parties interested solely in winning their cases rather than obtaining a Constitutional decision—might not arise in an arm's-length contested proceeding. Such was the situation in Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, where the parties sought a ruling as to whether a particular passenger rate was unconstitutionally confiscatory, having stipulated all the debatable and contingent facts which otherwise might have rendered a Constitutional decision unnecessary.

In the present appeals no more is alleged or conceded than is consistent with undisputed facts and with ordinary practice in deciding a case for anticipatory relief on demurrer. I think it is unjustifiably stretching things to assume that appellants are not deterred by the threat of prosecution from engaging in the conduct in which they assert a right to engage, or to assume that appellee's demurrer to the proposition that he asserts the right to enforce the statute against appellants at any time he chooses is anything but a candid one.

Indeed, as will be developed below, I think both the plurality and concurring opinions confuse on this score the predictive likelihood that, had they not brought themselves to appellee's attention, he would not enforce the statute against them, with some entirely suppositious "tacit agreement" not to prosecute, thereby ignoring the prosecutor's claim, asserted in these very proceedings, of a right, at his unbounded prosecutorial discretion, to enforce the statute.

Fourth: The doctrine of the cases dealing with a litigant's lack of standing to raise a Constitutional claim is said to justify the dismissal of these appeals. The precedents put forward as examples of this doctrine, see the plurality opinion, note 5, as well as cases such as Frothingham v. Mellon and Massachusetts v. Mellon,262 U. S. 447, and Texas v. Interstate Commerce Comm'n, 258 U. S. 158, do indeed stand for the proposition that a legal claim will not be considered at the instance of one who has no real and concrete interest in its vindication. This is well in accord with the grounds for declining jurisdiction suggested above. But this doctrine in turn needs further particularization lest it become a catchall for an unarticulated discretion on the part of this Court to decline to adjudicate appeals involving Constitutional issues.

There is no question but that appellants here are asserting rights which are peculiarly their own, and which, if they are to be raised at all, may be raised most appropriately by them. Cf. Tileston v. Ullman, 318 U. S. 44; Texas v. Interstate Commerce Comm'n, supra; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U. S. 217; Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341 (concurring opinion). Nor do I understand the argument to be that this is the sort of claim which is too remote ever to be pressed by anyone, because no one is ever sufficiently involved. Cf. Massachusetts v. Mellon, Frothingham v. Mellon, supra.Thus, in truth, it is not the parties pressing this claim but the occasion chosen for pressing it which is objected to. But as has been shown the fact that it is anticipatory relief which is asked cannot of itself make the occasion objectionable.

We are brought, then, to the precise failing in these proceedings which is said to justify refusal to exercise our mandatory appellate jurisdiction: that there has been but one recorded Connecticut case dealing with a prosecution under the statute.^[4] The significance of this lack of recorded evidence of prosecutions is said to make the presentation of appellants' rights too remote, too contingent, too hypothetical for adjudication in the light of the policies already considered. See pp. 526-530, supra. In my view it is only as a result of misconceptions both about the purport of the record before us and about the nature of the rights appellants put forward that this conclusion can be reached.

As far as the record is concerned, I think it is pure conjecture, and indeed conjecture which to me seems contrary to realities, that an open violation of the statute by a doctor (or more obviously still by a birth-control clinic) would not result in a substantial threat of prosecution. Crucial to the opposite conclusion is the description of the 1940 prosecution instituted in State v. Nelson, 126 Conn. 412, 11 A. 2d 856, as a "test case" which, as it is viewed, scarcely even punctuates the uniform state practice of nonenforcement of this statute. I read the history of Connecticut enforcement in a very different light. The Nelson case, as appears from the state court's opinion, was a prosecution of two doctors and a nurse for aiding and abetting violations of this statute by married women in prescribing and advising the use of contraceptive materials by them. It is true that there is evidence of a customary unwillingness to enforce the statute prior to Nelson, for in that case the prosecutor stated to the trial court in a later motion to discontinue the prosecutions that "When this Waterbury clinic [operated by the defendants] was opened there were in open operation elsewhere in the State at least eight other contraceptive clinics which had been in existence for a long period of time and no questions as to their right to operate had been raised . . . ."^[5]

What must also be noted is that the prosecutor followed this statement with an explanation that the primary purpose of the prosecution was to provide clear warning to all those who, like Nelson, might rely on this practice of nonenforcement. He stated that the purpose of the prosecution was:

"the establishment of the constitutional validity and efficacy of the statutes under which these accused are informed against. Henceforth any person, whether a physician or layman, who violates the provisions of these statutes, must expect to be prosecuted and punished in accordance with the literal provisions of the law."^[6]

Thus the respect in which Nelson was a test case is only that it was brought for the purpose of making entirely clear the State's power and willingness to enforce against "any person, whether a physician or layman" (emphasis supplied), the statute and to eliminate from future cases the very doubt about the existence of these elements which had resulted in eight open birth-control clinics, and which would have made unfair the conviction of Nelson.

The plurality opinion now finds, and the concurring opinion must assume, that the only explanation of the absence of recorded prosecutions subsequent to the Nelson case is that Connecticut has renounced that intention to prosecute and punish "any person . . . in accordance with the literal provisions of the law" which it announced in Nelson. But if renunciation of the purposes of the Nelsonprosecution is consistent with a lack of subsequent prosecutions, success of that purpose is no less consistent with this lack. I find it difficult to believe that doctors generally—and not just those operating specialized clinics—would continue openly to disseminate advice about contraceptives after Nelson in reliance on the State's supposed unwillingness to prosecute, or to consider that high-minded members of the profession would in consequence of such inaction deem themselves warranted in disrespecting this law so long as it is on the books. Nor can I regard as "chimerical" the fear of enforcement of these provisions that seems to have caused the disappearance of at least nine birth-control clinics.^[7] In short, I fear that the Court has indulged in a bit of sleight of hand to be rid of this case. It has treated the significance of the absence of prosecutions during the twenty years since Nelson as identical with that of the absence of prosecutions during the years before Nelson. It has ignored the fact that the very purpose of the Nelsonprosecution was to change defiance into compliance. It has ignored the very possibility that this purpose may have been successful.^[8] The result is to postulate a security from prosecution for open defiance of the statute which I do not believe the record supports.^[9]

These considerations alone serve to bring appellants so squarely within the rule of Pierce v. Society of Sisters, 268 U. S. 510, and Truax v. Raich, 239 U. S. 33, that further demonstration would be pointless.

But even if Dr. Buxton were not in the litigation and appellants the Poes and Doe were seeking simply to use contraceptives without any need of consulting a physician beforehand—which is not the case we have, although it is the case which the plurality opinion of the Court is primarily concerned to discuss—even then I think that it misconceives the concept of justiciability and the nature of these appellants' rights to say that the failure of the State to carry through any criminal prosecution requires dismissal of their appeals.

The Court's disposition assumes that to decide the case now, in the absence of any consummated prosecutions, is unwise because it forces a difficult decision in advance of any exigent necessity therefor. Of course it is abundantly clear that this requisite necessity can exist prior to any actual prosecution, for that is the theory of anticipatory relief, and is by now familiar law. What must be relied on, therefore, is that the historical absence of prosecutions in some way leaves these appellants free to violate the statute without fear of prosecution, whether or not the law is Constitutional, and thus absolves us from the duty of deciding if it is. Despite the suggestion of a "tougher and truer law" of immunity from criminal prosecution and despite speculation as to a "tacit agreement" that this law will not be enforced, there is, of course, no suggestion of an estoppel against the State if it should attempt to prosecute appellants. Neither the plurality nor the concurring opinion suggests that appellants have some legally congnizable right not to be prosecuted if the statute is Constitutional. What is meant is simply that the appellants are more or less free to act without fear of prosecution because the prosecuting authorities of the State, in their discretion and at their whim, are, as a matter of prediction, unlikely to decide to prosecute.

Here is the core of my disagreement with the present disposition. As I will develop later in this opinion, the most substantial claim which these married persons press is their right to enjoy the privacy of their marital relations free of the enquiry of the criminal law, whether it be in a prosecution of them or of a doctor whom they have consulted. And I cannot agree that their enjoyment of this privacy is not substantially impinged upon, when they are told that if they use contraceptives, indeed whether they do so or not, the only thing which stands between them and being forced to render criminal account of their marital privacy is the whim of the prosecutor.^[10] Connecticut's highest court has told us in the clearest terms that, given proof, the prosecutor will succeed if he decides to bring a proceeding against one of the appellants for taking the precise actions appellants have announced they intend to take. The State Court does not agree that there has come into play a "tougher and truer law than the dead words of the written text," and in the light of twelve unsuccessful attempts since 1943 to change this legislation, Poe v. Ullman, 147 Conn. 48, 56, 156 A. 2d 508, 513, n. 2, this position is not difficult to understand. Prosecution and conviction for the clearly spelled-out actions the appellants wish to take is not made unlikely by any fortuitous factor outside the control of the parties, nor is it made uncertain by possible variations in the actions appellants actually take from those the state courts have already passed upon. All that stands between the appellants and jail is the legally unfettered whim of the prosecutor and the Constitutional issue this Court today refuses to decide.

If we revert again to the reasons underlying our reluctance to exercise a jurisdiction which technically we possess, and the concrete expression of those underlying reasons in our cases, see pp. 526-531, supra, then I think it must become clear that there is no justification for failing to decide these married persons' appeals. The controversy awaits nothing but an actual prosecution, and, as will be shown, the substantial damage against which these appellants, Mrs. Doe and the Poes, are entitled to protection will be accomplished by such a prosecution, whatever its outcome in the state courts or here. By the present decision, although as a general matter the parties would be entitled to our review in an anticipatory proceeding which the State allowed to be instituted in its courts, these appellants are made to await actual prosecution before we will hear them. Indeed it appears that whereas appellants would surely have been entitled to review were this a new statute, see Harrison v. N. A. A. C. P., supra, the State here is enabled to maintain at least some substantial measure of compliance with this statute and still obviate any review in this Court, by the device of purely discretionary prosecutorial inactivity. It seems to me to destroy the whole purpose of anticipatory relief to consider the prosecutor's discretion, once all legal and administrative channels have been cleared, as in any way analogous to those other contingencies which make remote a controversy presenting Constitutional claims.

In this light it is not surprising that the Court's position is without support in the precedents.^[11] Indeed it seems to me that Pierce v. Society of Sisters, 268 U. S. 510, provides very clear authority contrary to the position of the Court in this case, for there a Court which included Justices Holmes, Brandeis, and Stone rejected a claim of prematureness and then passed upon and held unconstitutional a state statute whose sanctions were not even to become effective for more than seventeen months after the time the case was argued to this Court. The Court found allegations of present loss of business, caused by the threat of the statute's future enforcement against the Society's clientele, sufficient to make the injury to the Society "present and very real." 268 U. S., at 536. I cannot regard as less present, or less real, the tendency to discourage the exercise of the liberties of these appellants, caused by reluctance to submit their freedoms from prosecution and conviction to the discretion of the Connecticut prosecuting authorities. I therefore think it incumbent on us to consider the merits of appellants' Constitutional claims.

PART TWO.

Constitutionality.

I consider that this Connecticut legislation, as construed to apply to these appellants, violates the Fourteenth Amendment. I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life. I reach this conclusion, even though I find it difficult and unnecessary at this juncture to accept appellants' other argument that the judgment of policy behind the statute, so applied, is so arbitrary and unreasonable as to render the enactment invalid for that reason alone. Since both the contentions draw their basis from no explicit language of the Constitution, and have yet to find expression in any decision of this Court, I feel it desirable at the outset to state the framework of Constitutional principles in which I think the issue must be judged.

I.

In reviewing state legislation, whether considered to be in the exercise of the State's police powers, or in provision for the health, safety, morals or welfare of its people, it is clear that what is concerned are "the powers of government inherent in every sovereignty." The License Cases, 5 How. 504, 583. Only to the extent that the Constitution so requires may this Court interfere with the exercise of this plenary power of government. Barron v. Mayor of Baltimore, 7 Pet. 243. But precisely because it is the Constitution alone which warrants judicial interference in sovereign operations of the State, the basis of judgment as to the Constitutionality of state action must be a rational one, approaching the text which is the only commission for our power not in a literalistic way, as if we had a tax statute before us, but as the basic charter of our society, setting out in spare but meaningful terms the principles of government. McCulloch v. Maryland, 4 Wheat. 316. But as inescapable as is the rational process in Constitutional adjudication in general, nowhere is it more so than in giving meaning to the prohibitions of the Fourteenth Amendment and, where the Federal Government is involved, the Fifth Amendment, against the deprivation of life, liberty or property without due process of law.

It is but a truism to say that this provision of both Amendments is not self-explanatory. As to the Fourteenth, which is involved here, the history of the Amendment also sheds little light on the meaning of the provision. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights, 2 Stan. L. Rev. 15. It is important to note, however, that two views of the Amendment have not been accepted by this Court as delineating its scope. One view, which was ably and insistently argued in response to what were felt to be abuses by this Court of its reviewing power, sought to limit the provision to a guarantee of procedural fairness. See Davidson v. New Orleans, 96 U. S. 97, 105; Brandeis, J., in Whitneyv. California, 274 U. S. 357, at 373; Warren, The New "Liberty" under the 14th Amendment, 39 Harv. L. Rev. 431; Reeder, The Due Process Clauses and "The Substance of Individual Rights," 58 U. Pa. L. Rev. 191; Shattuck, The True Meaning of The Term "Liberty" in Those Clauses in the Federal and State Constitutions Which Protect "Life, Liberty, and Property," 4 Harv. L. Rev. 365. The other view which has been rejected would have it that the Fourteenth Amendment, whether by way of the Privileges and Immunities Clause or the Due Process Clause, applied against the States only and precisely those restraints which had prior to the Amendment been applicable merely to federal action. However, "due process" in the consistent view of this Court has ever been a broader concept than the first view and more flexible than the second.

Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. Compare, e. g., Selective Draft Law Cases, 245 U. S. 366; Butler v. Perry,240 U. S. 328; Korematsu v. United States, 323 U. S. 214. Thus the guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Hurtadov. California, 110 U. S. 516, at 532.

However it is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process, but rather, as was suggested in another context long before the adoption of that Amendment, those concepts which are considered to embrace those rights "which are . . . fundamental; which belong . . . to the citizens of all free governments," Corfield v.Coryell, 4 Wash. C. C. 371, 380, for "the purposes [of securing] which men enter into society," Calder v. Bull, 3 Dall. 386, 388. Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is explicitly set out elsewhere in the Bill of Rights. Slaughter-House Cases, 16 Wall. 36; Walker v. Sauvinet, 92 U. S. 90; Hurtado v. California,110 U. S. 516; Presser v. Illinois, 116 U. S. 252; In re Kemmler, 136 U. S. 436; Twining v. New Jersey, 211 U. S. 78; Palko v. Connecticut, 302 U. S. 319. Indeed the fact that an identical provision limiting federal action is found among the first eight Amendments, applying to the Federal Government, suggests that due process is a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions. See Mormon Church v. United States, 136 U. S. 1; Downes v. Bidwell, 182 U. S. 244; Hawaii v. Mankichi, 190 U. S. 197; Balzac v. Porto Rico, 258 U. S. 298; Farrington v. Tokushige, 273 U. S. 284; Bolling v. Sharpe, 347 U. S. 497.

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of Constitutional provisions, since that character must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, see Allgeyer v. Louisiana, 165 U. S. 578; Holden v. Hardy, 169 U. S. 366; Booth v. Illinois, 184 U. S. 425; Nebbia v. New York, 291 U. S. 502; Skinner v. Oklahoma, 316 U. S. 535, 544 (concurring opinion); Schware v. Board of Bar Examiners, 353 U. S. 232, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Cf. Skinner v. Oklahoma, supra; Bolling v. Sharpe, supra.

As was said in Meyer v. Nebraska, 262 U. S. 390, 399, "this Court has not attempted to define with exactness the liberty thus guaranteed . . . . Without doubt, it denotes not merely freedom from bodily restraint . . . ." Thus, for instance, when in that case and in Pierce v. Society of Sisters, 268 U. S. 510, the Court struck down laws which sought not to require what children must learn in schools, but to prescribe, in the first case, what they must not learn, and in the second, wherethey must acquire their learning, I do not think it was wrong to put those decisions on "the right of the individual to . . . establish a home and bring up children," Meyerv. Nebraska, ibid., or on the basis that "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only," Pierce v. Society of Sisters, at 535. I consider this so, even though today those decisions would probably have gone by reference to the concepts of freedom of expression and conscience assured against state action by the Fourteenth Amendment, concepts that are derived from the explicit guarantees of the First Amendment against federal encroachment upon freedom of speech and belief. See West Virginia State Board of Education v. Barnette, 319 U. S. 624,and 656 (dissenting opinion); Prince v. Massachusetts, 321 U. S. 158, 166. For it is the purposes of those guarantees and not their text, the reasons for their statement by the Framers and not the statement itself, see Palko v. Connecticut,302 U. S. 319, 324-327; United States v. Carolene Prods., 304 U. S. 144, 152-153,which have led to their present status in the compendious notion of "liberty" embraced in the Fourteenth Amendment.

Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Though we exercise limited and sharply restrained judgment, yet there is no "mechanical yard-stick," no "mechanical answer." The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take "its place in relation to what went before and further [cut] a channel for what is to come." Irvine v. California, 347 U. S. 128, 147 (dissenting opinion). The matter was well put in Rochin v. California, 342 U. S. 165, 170-171:

"The vague contours of the Due Process Clause do not leave judges at large. We may not draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function. Even though the concept of due process of law is not final and fixed, these limits are derived from considerations that are fused in the whole nature of our judicial process . . . . These are considerations deeply rooted in reason and in the compelling traditions of the legal profession."

On these premises I turn to the particular Constitutional claim in this case.

II.

Appellants contend that the Connecticut statute deprives them, as it unquestionably does, of a substantial measure of liberty in carrying on the most intimate of all personal relationships, and that it does so arbitrarily and without any rational, justifying purpose. The State, on the other hand, asserts that it is acting to protect the moral welfare of its citizenry, both directly, in that it considers the practice of contraception immoral in itself, and instrumentally, in that the availability of contraceptive materials tends to minimize "the disastrous consequence of dissolute action," that is fornication and adultery.

It is argued by appellants that the judgment, implicit in this statute—that the use of contraceptives by married couples is immoral—is an irrational one, that in effect it subjects them in a very important matter to the arbitrary whim of the legislature, and that it does so for no good purpose. Where, as here, we are dealing with what must be considered "a basic liberty," cf. Skinner v. Oklahoma, supra, at 541, "There are limits to the extent to which the presumption of constitutionality can be pressed," id., at 544 (concurring opinion), and the mere assertion that the action of the State finds justification in the controversial realm of morals cannot justify alone any and every restriction it imposes. See Alberts v. California, 354 U. S. 476.

Yet the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the community, but has traditionally concerned itself with the moral soundness of its people as well. Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis. Compare McGowan v. Maryland, 366 U. S. 420.

It is in this area of sexual morality, which contains many proscriptions of consensual behavior having little or no direct impact on others, that the State of Connecticut has expressed its moral judgment that all use of contraceptives is improper. Appellants cite an impressive list of authorities who, from a great variety of points of view, commend the considered use of contraceptives by married couples. What they do not emphasize is that not too long ago the current of opinion was very probably quite the opposite,^[12] and that even today the issue is not free of controversy. Certainly, Connecticut's judgment is no more demonstrably correct or incorrect than are the varieties of judgment, expressed in law, on marriage and divorce, on adult consensual homosexuality, abortion, and sterilization, or euthanasia and suicide. If we had a case before us which required us to decide simply, and in abstraction, whether the moral judgment implicit in the application of the present statute to married couples was a sound one, the very controversial nature of these questions would, I think, require us to hesitate long before concluding that the Constitution precluded Connecticut from choosing as it has among these various views. Cf. Alberts v. California, 354 U. S. 476, 500-503 (concurring opinion).

But, as might be expected, we are not presented simply with this moral judgment to be passed on as an abstract proposition. The secular state is not an examiner of consciences: it must operate in the realm of behavior, of overt actions, and where it does so operate, not only the underlying, moral purpose of its operations, but also the choice of means becomes relevant to any Constitutional judgment on what is done. The moral presupposition on which appellants ask us to pass judgment could form the basis of a variety of legal rules and administrative choices, each presenting a different issue for adjudication. For example, one practical expression of the moral view propounded here might be the rule that a marriage in which only contraceptive relations had taken place had never been consummated and could be annulled. Compare, e. g., 2 Bouscaren, Canon Law Digest, 307-313. Again, the use of contraceptives might be made a ground for divorce, or perhaps tax benefits and subsidies could be provided for large families. Other examples also readily suggest themselves.

III.

Precisely what is involved here is this: the State is asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital relation with the full power of the criminal law. Potentially, this could allow the deployment of all the incidental machinery of the criminal law, arrests, searches and seizures; inevitably, it must mean at the very least the lodging of criminal charges, a public trial, and testimony as to the corpus delicti. Nor could any imaginable elaboration of presumptions, testimonial privileges, or other safeguards, alleviate the necessity for testimony as to the mode and manner of the married couples' sexual relations, or at least the opportunity for the accused to make denial of the charges. In sum, the statute allows the State to enquire into, prove and punish married people for the private use of their marital intimacy.

This, then, is the precise character of the enactment whose Constitutional measure we must take. The statute must pass a more rigorous Constitutional test than that going merely to the plausibility of its underlying rationale. See pp. 542-545, supra. This enactment involves what, by common understanding throughout the English-speaking world, must be granted to be a most fundamental aspect of "liberty," the privacy of the home in its most basic sense, and it is this which requires that the statute be subjected to "strict scrutiny." Skinner v. Oklahoma, supra, at 541.

That aspect of liberty which embraces the concept of the privacy of the home receives explicit Constitutional protection at two places only. These are the Third Amendment, relating to the quartering of soldiers,^[13] and the Fourth Amendment, prohibiting unreasonable searches and seizures.^[14] While these Amendments reach only the Federal Government, this Court has held in the strongest terms, and today again confirms, that the concept of "privacy" embodied in the Fourth Amendment is part of the "ordered liberty" assured against state action by the Fourteenth Amendment. See Wolf v. Colorado, 338 U. S. 25; Mapp v. Ohio, post,p. 643.

It is clear, of course, that this Connecticut statute does not invade the privacy of the home in the usual sense, since the invasion involved here may, and doubtless usually would, be accomplished without any physical intrusion whatever into the home. What the statute undertakes to do, however, is to create a crime which is grossly offensive to this privacy, while the Constitution refers only to methods of ferreting out substantive wrongs, and the procedure it requires presupposes that substantive offenses may be committed and sought out in the privacy of the home. But such an analysis forecloses any claim to Constitutional protection against this form of deprivation of privacy, only if due process in this respect is limited to what is explicitly provided in the Constitution, divorced from the rational purposes, historical roots, and subsequent developments of the relevant provisions.

Perhaps the most comprehensive statement of the principle of liberty underlying these aspects of the Constitution was given by Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U. S. 438, at 478:

"The protection guaranteed by the [Fourth and Fifth] Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone— the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. . . ."

I think the sweep of the Court's decisions, under both the Fourth and Fourteenth Amendments, amply shows that the Constitution protects the privacy of the home against all unreasonable intrusion of whatever character. "[These] principles . . . affect the very essence of constitutional liberty and security. They reach farther than [a] concrete form of the case . . . before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. . . ." Boyd v. United States, 116 U. S. 616, 630. "The security of one's privacy against arbitrary intrusion by the police— which is at the core of the Fourth Amendment—is basic to a free society." Wolf v. Colorado, supra, at 27. In addition, see, e. g., Davis v. United States, 328 U. S. 582, 587; Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 202-203; Frank v. Maryland, 359 U. S. 360, 365-366; Silverman v. United States, 365 U. S. 505, 511.

It would surely be an extreme instance of sacrificing substance to form were it to be held that the Constitutional principle of privacy against arbitrary official intrusion comprehends only physical invasions by the police. To be sure, the times presented the Framers with two particular threats to that principle, the general warrant, see Boyd v. United States, supra, and the quartering of soldiers in private homes. But though "Legislation, both statutory and constitutional, is enacted, . . . from an experience of evils, . . . its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. . . . [A] principle to be vital must be capable of wider application than the mischief which gave it birth." Weems v. United States, 217 U. S. 349, 373.

Although the form of intrusion here—the enactment of a substantive offense—does not, in my opinion, preclude the making of a claim based on the right of privacy embraced in the "liberty" of the Due Process Clause, it must be acknowledged that there is another sense in which it could be argued that this intrusion on privacy differs from what the Fourth Amendment, and the similar concept of the Fourteenth, were intended to protect: here we have not an intrusion into the home so much as on the life which characteristically has its place in the home. But to my mind such a distinction is so insubstantial as to be captious: if the physical curtilage of the home is protected, it is surely as a result of solicitude to protect the privacies of the life within. Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. Thus, Mr. Justice Brandeis, writing of a statute which made "it punishable to teach [pacifism] in any place [to] a single person . . . no matter what the relation of the parties may be," found such a "statute invades the privacy and freedom of the home. Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son or daughter the doctrine of pacifism. If they do any police officer may summarily arrest them." Gilbert v. Minnesota, 254 U. S. 325, 335-336 (dissenting opinion). This same principle is expressed in the Pierce and Meyer cases, supra.These decisions, as was said in Prince v. Massachusetts, 321 U. S. 158, at 166,"have respected the private realm of family life which the state cannot enter."

Of this whole "private realm of family life" it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations. We would indeed be straining at a gnat and swallowing a camel were we to show concern for the niceties of property law involved in our recent decision, under the Fourth Amendment, in Chapman v. United States, 365 U. S. 610, and yet fail at least to see any substantial claim here.

Of course, just as the requirement of a warrant is not inflexible in carrying out searches and seizures, see Abel v. United States, 362 U. S. 217; United States v. Rabinowitz, 339 U. S. 56, so there are countervailing considerations at this more fundamental aspect of the right involved. "[T]he family . . . is not beyond regulation," Prince v. Massachusetts, supra, and it would be an absurdity to suggest either that offenses may not be committed in the bosom of the family or that the home can be made a sanctuary for crime. The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much has been explicitly recognized in acknowledging the State's rightful concern for its people's moral welfare. See pp. 545-548, supra.But not to discriminate between what is involved in this case and either the traditional offenses against good morals or crimes which, though they may be committed anywhere, happen to have been committed or concealed in the home, would entirely misconceive the argument that is being made.

Adultery, homosexuality and the like are sexual intimacies which the State forbids altogether, but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.

In sum, even though the State has determined that the use of contraceptives is as iniquitous as any act of extra-marital sexual immorality, the intrusion of the whole machinery of the criminal law into the very heart of marital privacy, requiring husband and wife to render account before a criminal tribunal of their uses of that intimacy, is surely a very different thing indeed from punishing those who establish intimacies which the law has always forbidden and which can have no claim to social protection.

In my view the appellants have presented a very pressing claim for Constitutional protection. Such difficulty as the claim presents lies only in evaluating it against the State's countervailing contention that it be allowed to enforce, by whatever means it deems appropriate, its judgment of the immorality of the practice this law condemns. In resolving this conflict a number of factors compel me to conclude that the decision here must most emphatically be for the appellants. Since, as it appears to me, the statute marks an abridgment of important fundamental liberties protected by the Fourteenth Amendment, it will not do to urge in justification of that abridgment simply that the statute is rationally related to the effectuation of a proper state purpose. A closer scrutiny and stronger justification than that are required. See pp. 542-545, supra.

Though the State has argued the Constitutional permissibility of the moral judgment underlying this statute, neither its brief, nor its argument, nor anything in any of the opinions of its highest court in these or other cases even remotely suggests a justification for the obnoxiously intrusive means it has chosen to effectuate that policy. To me the very circumstance that Connecticut has not chosen to press the enforcement of this statute against individual users, while it nevertheless persists in asserting its right to do so at any time—in effect a right to hold this statute as an imminent threat to the privacy of the households of the State—conduces to the inference either that it does not consider the policy of the statute a very important one, or that it does not regard the means it has chosen for its effectuation as appropriate or necessary.

But conclusive, in my view, is the utter novelty of this enactment. Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.^[15] Indeed, a diligent search has revealed that no nation, including several which quite evidently share Connecticut's moral policy,^[16] has seen fit to effectuate that policy by the means presented here.

Though undoubtedly the States are and should be left free to reflect a wide variety of policies, and should be allowed broad scope in experimenting with various means of promoting those policies, I must agree with Mr. Justice Jackson that "There are limits to the extent to which a legislatively represented majority may conduct. . . experiments at the expense of the dignity and personality" of the individual. Skinner v. Oklahoma, supra. In this instance these limits are in my view reached and passed.

I would adjudicate these appeals and hold this statute unconstitutional, insofar as it purports to make criminal the conduct contemplated by these married women. It follows that if their conduct cannot be a crime, appellant Buxton cannot be an accomplice thereto. I would reverse the judgment in each of these cases.

MR. JUSTICE STEWART, dissenting.

For the reasons so convincingly advanced by both MR. JUSTICE DOUGLAS and MR. JUSTICE HARLAN, I join them in dissenting from the dismissal of these appeals. Since the appeals are nonetheless dismissed, my dissent need go no further. However, in refraining from a discussion of the constitutional issues, I in no way imply that the ultimate result I would reach on the merits of these controversies would differ from the conclusions of my dissenting Brothers.

[*] Together with No. 61, Buxton v. Ullman, State's Attorney, also on appeal from the same Court.

[1] Plaintiffs in the two cases composing No. 60 sue under fictitious names. The Supreme Court of Errors of Connecticut approved this procedure in the special circumstances of the cases.

[2] As a matter of specific legislation, Connecticut outlaws only the use of contraceptive materials. Conn. Gen. Stat. Rev., 1958, § 53-32 provides:

"Use of drugs or instruments to prevent conception. Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."

There are no substantive provisions dealing with the sale or distribution of such devices, nor with the giving of information concerning their use. These activities are deemed to be involved in law solely because of the general criminal accessory enactment of Connecticut. This is Conn. Gen. Stat. Rev., 1958, § 54-196:

"Accessories. Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender."

[3] The assumption of prosecution of spouses for use of contraceptives is not only inherently bizarre, as was admitted by counsel, but is underscored in its implausibility by the disability of spouses, under Connecticut law, from being compelled to testify against one another.

[4] It is also worthy of note that the Supreme Court of Errors has held that contraceptive devices could not be seized and destroyed as nuisances under the State's seizure statutes. See State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A. 2d 863, decided on the same day as the Nelson case.

[5] See, e. g., Braxton County Court v. West Virginia, 208 U. S. 192; Yazoo & Mississippi Valley R. Co.v. Jackson Vinegar Co., 226 U. S. 217; Fairchild v. Hughes, 258 U. S. 126; Tileston v. Ullman, 318 U. S. 44; United States v. Raines, 362 U. S. 17. Cf. Owings v. Norwood's Lessee, 5 Cranch 344.

[6] See, e. g., New Jersey v. Sargent, 269 U. S. 328; Arizona v. California, 283 U. S. 423; International Longshoremen's Union v. Boyd, 347 U. S. 222. Cf. Coffman v. Breeze Corporations, 323 U. S. 316.

[7] See, e. g., San Mateo County v. Southern Pacific R. Co., 116 U. S. 138; Singer Mfg. Co. v. Wright,141 U. S. 696; Mills v. Green, 159 U. S. 651; Kimball v. Kimball, 174 U. S. 158; Tennessee v. Condon,189 U. S. 64; American Book Co. v. Kansas, 193 U. S. 49; Jones v. Montague, 194 U. S. 147; Security Mutual Life Ins. Co. v. Prewitt, 200 U. S. 446; Richardson v. McChesney, 218 U. S. 487; Berry v. Davis,242 U. S. 468; Atherton Mills v. Johnston, 259 U. S. 13.

[8] Mr. Justice Brandeis, concurring, in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341, 347.

[9] The Mellon cases involved what is technically designated as the problem of "standing," but the concern which they exemplify that constitutional issues be determined only at the suit of a person immediately injured has equal application here. It makes little sense to insist that only the parties themselves whom legislation immediately threatens may sue to strike it down and, at the same time, permit such suit when there is not even a remote likelihood that the threat to them will in fact materialize.

[1] Himes, A Decade of Progress in Birth Control, 212 Annals Am. Acad. Pol. & Soc. Sci. 88, 94 (1940).

[2] It may be, as some suggest, that these bizarre laws are kept on the books solely to insure that traffic in contraceptives will be furtive, or will be limited to those who, by the accident of their education, travels, or wealth, need not rely on local public clinics for instruction and supply. Yet these laws—as the decision below shows—are not limited to such situations.

[3] "On the continent there was some speculation during the middle ages as to whether a law could become inoperative through long-continued desuetude. In England, however, the idea of prescription and the acquisition or loss of rights merely by the lapse of a particular length of time found little favour. . . . There was consequently no room for any theory that statutes might become obsolete." Plucknett, A Concise History of the Common Law (1956), pp. 337-338.

[4] The Critique of Pure Reason, 42 Great Books, p. 221.

[5] On Liberty of Thought and Discussion, 43 Great Books, p. 282.

[6] Ibid.

[7] See Konvitz, Fundamental Liberties of a Free People (1957), pp. 37-39; Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich. L. Rev. 869, 904 et seq. (1948); Holmes, The Fourteenth Amendment and the Bill of Rights, 7 S. C. L. Q. Rev. 596 (1955).

And see Mr. Justice Rutledge (concurring) in In re Oliver, 333 U. S. 257, 280-281.

[8] I start with Justices Bradley, Swayne, Field, Clifford and Harlan. To this number, Mr. Justice Brewer can probably be joined on the basis of his agreement "in the main" with Mr. Justice Harlan in O'Neil v. Vermont, 144 U. S. 323, 371. See the Appendix to MR. JUSTICE BLACK'S dissent in Adamson v. California, supra, 120-123. To these I add MR. JUSTICE BLACK, Mr. Justice Murphy, Mr. Justice Rutledge and myself (Adamson v. California, supra, 68, 123).

[9] "The due process clause is said to exact from the states all that is `implicit in the concept of ordered liberty.' It is further said that the concept is a living one, that it guarantees basic rights, not because they have become petrified as of any one time, but because due process follows the advancing standards of a free society as to what is deemed reasonable and right. It is to be applied, according to this view, to facts and circumstances as they arise, the cases falling on one side of the line or the other as a majority of nine justices appraise conduct as either implicit in the concept of ordered liberty or as lying without the confines of that vague concept. Of course, in this view, the due process clause of the Fifth Amendment, which confessedly must be construed like that of the Fourteenth, may be repetitious of many of the other guaranties of the first eight amendments and may render many of their provisions superfluous." Roberts, The Court and the Constitution (1951), p. 80.

[10] Anthony Comstock (1844-1915)—the Congregationalist who inspired the foundation of the New York Society for the Suppression of Vice in 1873 and the Watch and Ward Society of Boston in 1876 and who inspired George Bernard Shaw to use the opprobrious word "comstockery" in Mrs. Warren's Profession—was responsible for the passage in 1879 of this Connecticut law.

[11] Those warrants would, I think, go beyond anything so far known in our law. The law has long known the writ de ventre inspiciendo authorizing matrons to inspect the body of a woman to determine if she is pregnant. This writ was issued to determine before a hanging whether a convicted female was pregnant or to ascertain whether rightful succession of property was to be defeated by assertion of a suppositious heir. See 1 Blackstone Commentaries (Jones ed. 1915), p. 651.

[12] The right "to be let alone" had many common-law overtones. See Cooley, Torts (2d ed. 1888), p. 29; Warren and Brandeis, Right To Privacy, 4 Harv. L. Rev. 192. Cf. Ohio Rev. Code, § 2905.34, which makes criminal knowing "possession" of "a drug, medicine, article, or thing intended for the prevention of conception," doctors and druggists being excepted. § 2905.37.

[13] Mr. Justice Murphy dissenting in Adamson v. California, 332 U. S. 46, 124, said:

"I agree that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment. But I am not prepared to say that the latter is entirely and necessarily limited by the Bill of Rights. Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights."

[14] Calhoun, Democracy and Natural Law, 5 Nat. Law Forum, 31, 36 (1960).

[15] The Third Amendment provides:

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

[1] These statutes, Conn. Gen. Stat., Rev. 1958, § 53-32 (forbidding the use of contraceptives), and Conn. Gen. Stat., Rev. 1958, § 54-196 (the general accessory law), are set forth in note 2 of the plurality opinion, ante, p. 499.

[2] Only two cases are squarely relied on, C. I. O. v. McAdory, 325 U. S. 472, a companion case to Alabama State Federation of Labor v. McAdory, supra, discussed at pp. 526-527, infra, and tendering the same issues; and Ex parte La Prade, 289 U. S. 444. The appeal in the principal McAdory case was dismissed because the state statute there challenged had not yet been construed by the state courts, and it was thought that state construction might remove some Constitutional doubts. In the companion McAdory case, the appeal was likewise dismissed, the State having "agreed not to enforce § 7 of the Act [there challenged] until the final decision as to the section's validity by this Court in Alabama State Federation of Labor v. McAdory . . . ." Id., at 475. In the present appeals there is no agreement not to prosecute, no companion case awaiting disposition, and no uncertainty about state law due to lack of state construction.

As to Ex parte La Prade, supra, see note 11, infra.

[3] Manifestly the type of ripeness found wanting in cases such as Massachusetts v. Mellon, 262 U. S. 447, Texas v. Interstate Commerce Comm'n, 258 U. S. 158, New Jersey v. Sargent, 269 U. S. 328, and Arizona v. California, 283 U. S. 423, is not lacking in the cases before us. For the recurrent theme of those cases, all of which challenge federal action as an encroachment on state sovereignty, is the fact that the mere existence of state sovereign powers and prerogatives which may bear generally upon individual rights raises no such concrete and practical issues as courts are accustomed to consider, so that adjudication upon their validity in such circumstances would take place in the most abstract kind of setting.

[4] Some support is sought to be drawn for the supposition of state acquiescence in violation of the statute from the case of State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A. 2d 863. But that case held no more than that contraceptive materials could not be seized under the authority of a statute interpreted to deal with the seizure of gambling paraphernalia.

[5] The "circumstances" of the Nelson case may best be gathered from the remarks of the State's prosecuting attorney, Mr. Fitzgerald, seeking the approval of the trial judge for a nolle prosequi in that case after the decision of the State Supreme Court. In an affidavit accompanying a transcript of the proceedings on the State's motion, the attorney for the defendants stated that "said criminal prosecutions were prosecutions instituted by the State upon complaint of a citizen and were instituted in no sense with the prior knowledge or approval of the accused and there was no pre-trial acquiescence by the accused that said actions would be instituted to test the constitutionality of the statutes in question."

[6] This statement was made in the same proceedings referred to in note 5, supra.

[7] See Brief of Planned Parenthood Federation of America, Inc., as amicus curiae, p. 4, and Appendix f.

[8] The concurring opinion concludes, apparently on the basis of the Nelson episode, that the "true controversy in this case is over the opening of birth-control clinics on a large scale . . . ." It should be said at once that as to these appeals this is an entirely unwarranted assumption. The amicus curiae in this case, the Planned Parenthood Federation of America, Inc., is indeed interested in such clinics, see note 7, supra, but as to the actual parties here, there is not one word in the record or their briefs to suggest that their interest is anything other than they say it is. The Nelson prosecution, it is true, involved a doctor and nurses at a birth-control clinic, but there is nothing about these statutes as they have been authoritatively construed in this and previous cases, that limits their application to advice given by a doctor in a clinic of that sort, as opposed to advice given by a doctor in some less specialized clinic, a hospital or in his own office.

The only conceivable sense in which "The true controversy in this case is over the opening of birth-control clinics" must lie in the circumstance that since the notorious and avowed purpose of such a clinic is the violation of these statutes, there would not be the same problem of detection or proof of violations as might otherwise present itself. The relevance in turn of this circumstance must be that, in the view of the concurring opinion there is a present threat of enforcement against any such clinic—which I too believe—but coupled with a further assumption—one shared by the plurality opinion though lacking any factual warrant whatever—that these statutes do not also deter members of the medical profession in general from violating these statutes. Furthermore both opinions must share the assumption that the appellants may be required to hold what may be their constitutional rights at the whim and pleasure of the prosecutor. In sum, the strong implication of the concurring opinion that a suit for anticipatory relief brought by a birth-control clinic (though it would raise no different issues and present a record no less "skimpy") would succeed in invoking our jurisdiction where these suits fail, exposes the fallacy underlying the Court's disposition: the unprecedented doctrine that a suit for anticipatory relief will be entertained at the instance of one who is forced to violate a statute flagrantly, but not at the urging of one who may violate it surreptitiously with a high probability of avoiding detection.

[9] In this regard it is worth comparing the record of the Federal Communications Commission in enforcing its regulations by means of a threat of revocation of station licenses. The Commission has not, as is generally known, used this sanction much more readily than Connecticut has invoked criminal penalties to enforce the laws here in question, but no one would discount entirely the efficacy of the threat or suggest that open defiance of Commission regulations is without substantial risks.

[10] It is suggested that prosecution is unlikely because of an interspousal testimonial privilege in Connecticut. Assuming that such a privilege exists and is applicable here, the testimony of either spouse is not necessary to a conviction. Furthermore, as will be argued, the real incursion here inheres in the institution of a prosecution in this matter at all, with the consequent need of an opportunity for the parties—guilty or innocent—to defend themselves against the charges. See p. 548, infra.

[11] There is a much discredited dictum in Ex parte La Parade, 289 U. S. 444, that in an injunction action there must be an allegation of threatened immediate enforcement of the statute. See 50 Yale L. J. 1278; Borchard, Challenging "Penal" Statutes by Declaratory Action, 52 Yale L. J. 445; 62 Harv. L. Rev. 870-871. But against this dictum (which even in its context was justified only as a natural consequence of the rule of Ex parte Young, 209 U. S. 123, involving suits against state officers) one can array numerous cases in which proof of any such immediate threat was considered unnecessary and the Court proceeded to a determination of the merits. See, e. g., Pennsylvania v. West Virginia, 262 U. S. 553; Euclid v. Ambler Co., 272 U. S. 365; Carter v. Carter Coal Co., 298 U. S. 238; Currin v. Wallace, 306 U. S. 1.

[12] The so-called Comstock Law, 17 Stat. 598, may be regarded as characteristic of the attitude of a large segment of public opinion on this matter through the end of the last century. It was only by judicial interpretation at a later date that the absolute prohibitions of the law were qualified to exclude professional medical use. Youngs Rubber Corp. v. Lee & Co., 45 F. 2d 103; Davis v. United States, 62 F. 2d 473; United States v. One Package, 86 F. 2d 737; 50 Harv. L. Rev. 1312. However, the Comstock Law in its original form "started a fashion" and many States enacted similar legislation, some of which is still on the books. See Stone and Pilpel, The Social and Legal Status of Contraception, 22 N. C. L. Rev. 212; Legislation Note, 45 Harv. L. Rev. 723; Note, 6 U. of Chi. L. Rev. 260; Murray, America's Four Conspiracies, at 32-33, in Religion in America (Cogley ed.). Indeed the criticism of these measures assumes that they represented general public opinion, though of a bygone day. See, e. g., Knopf, Various Aspects of Birth Control; Birth Control Clinical Research Bureau, Laws Relating to Birth Control in the United States and its Territories, foreword and introduction; Stone and Pilpel, supra; Hearings on H. R. 11082, 72d Cong., 1st Sess. See generally, Broun and Leech, Anthony Comstock; Dennett, Birth Control Laws.

[13] "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

[14] "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

[15] See tabulation of statutes in Birth Control Legislation, 9 Cleveland-Marshall Law Review, 245 (1960); Legislation Note, 45 Harv. L. Rev. 723 (1932); Birth Control Clinical Research Bureau, Laws Relating to Birth Control in the United States and its Territories (1938).

[16] Unqualified disapproval of contraception is implicit in the laws of Belgium, Droit Penal, § 383; France, Code Penal, Art. 317; Ireland, Censorship of Publications Act of 1929, §§ 16, 17, Criminal Law Amendment Act of 1935, § 17; Italy, Codice Penale, Arts. 553, 555; and Spain, Codigo Penal, Art. 416. Compare the more permissive legislation in Canada, Criminal Code, § 150; Germany, Strafgesetzbuch, § 184; and Switzerland, Code Penal, Art. 211.

BAKER et al. v. CARR et al.

No. 6.

Argued April 19-20, 1961.

Set for reargument May 1, 1961.

Reargued October 9, 1961.

Decided March 26, 1962.

Charles S. Rhyne and Z. T. Osborn, Jr. reargued the cause for appellants. With them on the briefs were Hobart F. Atkins, Robert H. Jennings, Jr., J. W. Anderson, C. R. McClain, Walter Chandler, Harris A. Gilbert, E. K. Meacham and Herzel H. E. Plaine.

*187Jack Wilson, Assistant Attorney General of Tennessee, reargued the cause for appellees. With him on the briefs were George F. McCanless, Attorney General, and Milton P. Rice and James M. Glasgow, Assistant Attorneys General.

Solicitor General Cox, by special leave of Court, 365 U. S. 864, reargued the cause for the United States, as amicus curiae, urging reversal. With him on the briefs were Assistant Attorney General Marshall, Acting Assistant Attorney General Doar, Bruce J. Terris, Harold H. Greene, David Rubin and Howard A. Glickstein.

Briefs of amici curiae, in support of appellants, were filed by J. Howard Edmondson, Governor of Oklahoma, and Norman E. Reynolds, Jr. for the Governor; W. Scott Miller, Jr. and George J. Long for the City of St. Matthews, Kentucky; Roger Arnebergh, Henry P. Kucera, J. Elliott Drinard, Barnett I. Shur, Alexander G. Brown, Nathaniel H. Goldstick and Charles S. Rhyne for the National Institute of Municipal Law Officers; Eugene H. Nickerson and David M. Levitan for John F. English et al.; Upton Sisson, Clare S. Hornsby, Walter L. Nixon, Jr. and John Sekul for Marvin Fortner et al.; and Theodore Sachs for August Scholle.

Mr. Justice Brennan

delivered the opinion of the Court.

This civil action was brought under 42 U. S. C. §§ 1983 and 1988 to redress the alleged deprivation of federal constitutional rights. The complaint, alleging that by means of a 1901 statute of Tennessee apportioning the members of the General Assembly among the State’s 95 counties,1 “these plaintiffs and others similarly situated, *188are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes,” was dismissed by a three-judge court convened under 28 U. S. C. § 2281 in the Middle District of Tennessee.2 The court held that it lacked jurisdiction of the subject matter and also that no claim was stated upon which relief could be granted. 179 F. Supp. 824. We noted probable jurisdiction of the appeal. 364 U. S. 898.3 We hold that the dismissal was error, and remand the cause to the District Court for trial and further proceedings consistent with this opinion.

The General Assembly of Tennessee consists of the Senate with 33 members and the House of Representatives with 99 members. The Tennessee Constitution provides in Art. II as follows:

“Sec. 3. Legislative authority- — -Term of office.— The Legislative authority of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both dependent on the people; who shall hold their offices for two years from the day of the general election.

“Sec. 4. Census.- — An enumeration of the qualified voters, and an apportionment of the Representatives in the General Assembly, shall be made in the year one thousand eight hundred and seventy-one, and within every subsequent term of ten years.

“Sec. 6. Apportionment of representatives. — The number of Representatives shall, at the several *189periods of- making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each; and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided, that any county having two-thirds of the ratio shall be, entitled to one member.

“Sec. 6. Apportionment of senators. — The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no county shall be divided in forming a district.”

Thus, Tennessee’s standard for allocating legislative representation among her counties is the total number of qualified voters resident in the respective counties, subject only to minor qualifications.4 Decennial reapportionment *190in compliance with the constitutional scheme was effected by the General Assembly each decade from 1871 to 1901. The 1871 apportionment5 was preceded by an 1870 statute requiring an enumeration.6 The 1881 apportionment involved three statutes, the first authorizing an enumeration, the second enlarging the Senate from 25 to *19133 members and the House from 75 to 99 members, and the third apportioning the membership of both Houses.7 In 1891 there were both an enumeration and an apportionment.8 In 1901 the General Assembly abandoned separate enumeration in favor of reliance upon the Federal Census and passed the Apportionment Act here in controversy.9 In the more than 60 years since that action, all proposals in both Houses of the General Assembly for reapportionment have failed to pass.10

*192Between 1901 and 1961, Tennessee has experienced substantial growth and redistribution of her population. In 1901 the population was 2,020,616, of whom 487,380 were eligible to vote.11 The 1960 Federal Census reports the State’s population at 3,567,089, of whom 2,092,891 are eligible to vote.12 The relative standings of the counties in terms of qualified voters have changed significantly. It is primarily the continued application of the 1901 Apportionment Act to this shifted and enlarged voting population which gives rise to the present controversy.

Indeed, the complaint alleges that the 1901 statute, even as of the time of its passage, “made no apportionment of Representatives and Senators in accordance with the constitutional formula . . . , but instead arbitrarily and capriciously apportioned representatives in the Senate and House without reference ... to any logical or reasonable formula whatever.” 13 It is further alleged *193that “because of the population changes since 1900, and the failure of the Legislature to reapportion itself since 1901/'’ the 1901 statute became “unconstitutional and obsolete.” Appellants also argue that, because of the composition of the legislature effected by the 1901 Apportionment Act, redress in the form of a state constitutional amendment to change the entire mechanism for reapportioning, or any other change short of that, is difficult or impossible.14 The complaint concludes that- “these plain - *194tiffs and others similarly situated, are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes.” 15 They seek a *195declaration that the 1901 statute is unconstitutional and an injunction restraining the appellees from acting to conduct any further elections under it. They also pray that unless and until the General Assembly enacts a valid reapportionment, the District Court should either decree a reapportionment by mathematical application of the Tennessee constitutional formulae to the most recent Federal Census figures, or direct the appellees to conduct legislative elections, primary and general, at large. They also pray for such other and further relief as may be appropriate.

I.

The District Court’s Opinion and Order of Dismissal.

Because we deal with this case on appeal from an order of dismissal granted on appellees’ motions, precise identi*196fication of the issues presently confronting us demands clear exposition of the grounds upon which the District Court rested in dismissing the case. The dismissal order recited that the court sustained the appellees’ grounds “(1) that the Court lacks jurisdiction of the subject matter, and (2) that the complaint fails to state a claim upon which relief can be granted . . . .”

In the setting of a case such as this, the recited grounds embrace two possible reasons for dismissal:

First: That the facts and injury alleged, the legal bases invoked as creating the rights and duties relied upon, and the relief sought, fail to come within that language of Article III of the Constitution and of the jurisdictional statutes which define those matters concerning which United States District Courts are empowered to act;

Second: That, although the matter is cognizable and facts are alleged which establish infringement of appellants’ rights as a result of state legislative action departing from a federal constitutional standard, the court will not proceed because the matter is considered unsuited to judicial inquiry or adjustment.

We treat the first ground of dismissal as “lack of jurisdiction of the subject matter.” The second we consider to result in a failure to state a justiciable cause of action.

The District Court’s dismissal order recited that it was issued in conformity with the court’s per curiam opinion. The opinion reveals that the court rested its dismissal upon lack of subject-matter jurisdiction and lack of a justiciable cause of action without attempting to distinguish between these grounds. After noting that the plaintiffs challenged the existing legislative apportionment in Tennessee under the Due Process and Equal Protection Clauses, and summarizing the supporting allegations and the relief requested, the court stated that

“The action is presently before the Court upon the defendants’ motion to dismiss predicated upon three *197grounds: first, that the Court lacks jurisdiction of the subject matter; second, that the complaints fail to state a claim upon which relief can be granted; and third, that indispensable party defendants are not before the Court.” 179 F. Supp., at 826.

The court proceeded to explain its action as turning on the case’s presenting a “question of the distribution of political strength for legislative purposes.” For,

“From a review of [numerous Supreme Court] . . . decisions there can be no doubt that the federal rule, as enunciated and applied by the Supreme Court, is that the federal courts, whether from a lack of jurisdiction or from the inappropriateness of the subject matter for judicial consideration, will not intervene in cases of this type to compel legislative reapportionment.” 179 F. Supp., at 826.

The court went on to express doubts as to the feasibility of the various possible remedies sought by the plaintiffs. 179 F. Supp., at 827-828. Then it made clear that its dismissal reflected a view not of doubt that violation of constitutional rights was alleged, but of a court’s impotence to correct that violation:

“With the plaintiffs’ argument that the legislature of Tennessee is guilty of a clear violation of the state constitution and of the rights of the plaintiffs the Court entirely agrees. It also agrees that the evil is a serious one which should be corrected without further delay. But even so the remedy in this situation clearly does not lie with the courts. It has long been recognized and is accepted doctrine that there are indeed some rights guaranteed by the Constitution for the violation of which the courts cannot give redress.” 179 F. Supp., at 828.

In light of the District Court’s treatment of the case, we hold today only (a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of *198action is stated upon which appellants would be entitled to appropriate relief; and (c) because appellees raise the issue before this Court, that the appellants have standing to challenge the Tennessee apportionment statutes.16 Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at the trial.

1 — 1 H-{

Jurisdiction op the Subject Matter.

The District Court was uncertain whether our cases withholding federal judicial relief rested upon a lack of federal jurisdiction or upon the inappropriateness of the subject matter for judicial consideration — what we have designated “nonjusticiability.” The distinction between the two grounds is significant. In the instance of non jus-ticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court’s inquiry necessarily proceeds to the point- of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not “arise under” the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. Ill, § 2), or is not a “case or controversy” within the meaning of that section ; or the cause is not one described by any jurisdictional statute. Our conclusion, see pp. 208-237, infra, that this cause presents no non justiciable “political question” settles the only possible doubt that it is a case or controversy. Under the present heading of “Jurisdic*199tion of the Subject Matter” we hold only that the matter set forth in the complaint does arise under the Constitution and is within 28 U. S. C. § 1343.

Article III, § 2, of the Federal Constitution provides that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . .” It is clear that the cause of action is one which “arises under” the Federal Constitution. The complaint alleges that the 1901 statute effects an apportionment that deprives the appellants of the equal protection of the laws in violation of the Fourteenth Amendment. Dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that claim were “so attenuated and unsubstantial as to be absolutely devoid of merit,” Newburyport Water Co. v. Newburyport, 193 U. S. 561, 579, or “frivolous,” Bell v. Hood, 327 U. S. 678, 683.17 That the claim is unsubstantial must be “very plain.” Hart v. Keith Vaudeville Exchange, 262 U. S. 271, 274. Since the District Court obviously and correctly did not deem the asserted federal constitutional claim unsubstantial and frivolous, it should not have dismissed the complaint for want of jurisdiction of the subject matter. And of course no further consideration of the merits of the claim is relevant to a determination of the court’s jurisdiction of the subject matter. We said in an earlier voting case from Tennessee: “It is obvious . . . that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. But as the very nature of the controversy was Federal, and, therefore, *200jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States.” Swafford v. Templeton, 185 U. S. 487, 493. “For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.” Bell v. Hood, 327 U. S. 678, 682. See also Binderup v. Pathe Exchange, 263 U. S. 291, 305-308.

Since the complaint plainly sets forth a case arising under the Constitution, the subject matter is within the federal judicial power defined in Art. Ill, § 2, and so within the power of Congress to assign to the jurisdiction of the District Courts. Congress has exercised that power in 28 U. S. C. § 1343 (3):

“The district courts shall have original jurisdiction of any civil action authorized by law18 to be commenced by any person . . . [t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States . . . .”19

*201An unbroken line of our precedents sustains the federal courts’ jurisdiction of the subject matter of federal constitutional claims of this nature. The first cases involved the redistricting of States for the purpose of electing Representatives to the Federal Congress. When the Ohio Supreme Court sustained Ohio legislation against an attack for repugnancy to Art. I, § 4, of the Federal Constitution, we affirmed on the merits and expressly refused to dismiss for want of jurisdiction “In view ... of the subject-matter of the controversy and the Federal characteristics which inhere in it . . . .” Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 570. When the Minnesota Supreme Court affirmed the dismissal of a suit to enjoin the Secretary of State of Minnesota from acting under Minnesota redistricting legislation, we reviewed the constitutional merits of the legislation and reversed the State Supreme Court. Smiley v. Holm, 285 U. S. 355. And see companion cases from the New York Court of Appeals and the Missouri Supreme Court, Koenig v. Flynn, 285 U. S. 375; Carroll v. Becker, 285 U. S. 380. When a three-judge District Court, exercising jurisdiction under the predecessor of 28 U. S. C. § 1343 (3), permanently enjoined officers of the State of Mississippi from conducting an election of Representatives under a Mississippi redistricting act, we reviewed the federal questions on the merits and reversed the District Court. Wood v. Broom, 287 U. S. 1, reversing 1 F. Supp. 134. A similar decree of a District Court, exercising jurisdiction under the same statute, concerning a Kentucky redistricting act, was *202reviewed and the decree reversed. Mahan v. Hume, 287 U. S. 575, reversing 1 F. Supp. 142.20

The appellees refer to Colegrove v. Green, 328 U. S. 549, as authority that the District Court lacked jurisdietion of the subject matter. Appellees misconceive the holding of that case. The holding was precisely contrary to their reading of it. Seven members of the Court participated in the decision. Unlike many other cases in this field which have assumed without discussion that there was jurisdiction, all three opinions filed in Colegrove discussed the question. Two of the opinions expressing the views of four of the Justices, a majority, flatly held that there was jurisdiction of the subject matter. Mr. Justice Black joined by Mr. Justice Douglas and Mr. Justice Murphy stated: “It is my judgment that the District Court had jurisdiction . . . ,” citing the predecessor of 28 U. S. C. § 1343 (3), and Bell v. Hood, supra. 328 U. S., at 568. Mr. Justice Rutledge, writing separately, expressed agreement with this conclusion. 328 U. S., at 564, 565, n. 2. Indeed, it is even questionable that the opinion of Mr. Justice Frankfurter, joined by Justices .Reed and Burton, doubted jurisdiction of the subject \ matter. Such doubt would have been inconsistent with the professed willingness to turn the decision on either the majority or concurring views in Wood v. Broom, supra. 328 U. S., at 551.

Several subsequent cases similar to Colegrove have been decided by the Court in summary per curiam statements. None was dismissed for want of jurisdiction of the subject matter. Cook v. Fortson, 329 U. S. 675; Turman v. *203Duckworth, ibid.; Colegrove v. Barrett, 330 U. S. 804; 21 Tedesco v. Board of Supervisors, 339 U. S. 940; Remmey v. Smith, 342 U. S. 916; Cox v. Peters, 342 U. S. 936; Anderson v. Jordan, 343 U. S. 912; Kidd v. McCanless, 362 U. S. 920; Radford v. Gary, 352 U. S. 991; Hartsfield v. Sloan, 357 U. S. 916; Matthews v. Handley, 361 U. S. 127.22

Two cases decided with opinions after Colegrove likewise plainly imply that the subject matter of this suit is within District Court jurisdiction. In MacDougall v. Green, 335 U. S. 281, the District Court dismissed for want of jurisdiction, which had been invoked under 28 U. S. C. § 1343 (3), a suit to enjoin enforcement of the requirement that nominees for state-wide elections be supported by a petition signed by a minimum number of persons from at least 50 of the State’s 102 counties. This Court’s disagreement with that action is clear since the Court affirmed the judgment after a review of the merits and concluded that the particular claim there was without merit. In South v. Peters, 339 U. S. 276, we affirmed the dismissal of an attack on the Georgia “county unit” system but founded our action on a ground that plainly would not have been reached if the lower court lacked jurisdiction of the subject matter, which allegedy existed under 28 U. S. C. § 1343 (3). The express words of our holding were that “Federal courts consistently refuse to exercise their equity powers in cases posing *204political issues arising from a state’s geographical distribution of electoral strength among its political subdivisions.” 339 U. S., at 277.

We hold that the District Court has jurisdiction of the subject matter of the federal constitutional claim asserted in the complaint.

III.

Standing.

A federal court cannot “pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.” Liverpool Steamship Co. v. Commissioners of Emigration, 113 U. S. 33, 39. Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing. It is, of course, a question of federal law.

The complaint was filed by residents of Davidson, Hamilton, Knox, Montgomery, and Shelby Counties. Each is a person allegedly qualified to vote for members of the General Assembly representing his county.23 These appellants sued “on their own behalf and on behalf of all qualified voters of their respective counties, and further, on behalf of all voters of the State of Tennessee who *205are similarly situated . . . 24 The appellees are the Tennessee Secretary of State, Attorney General, Coordinator of Elections, and members of the State Board of Elections; the members of the State Board are sued in their own right and also as representatives of the County Election Commissioners whom they appoint.25

*206We hold that the appellants do have standing to maintain this suit. Our decisions plainly support this conclusion. Many of the cases have assumed rather than articulated the premise in deciding the merits of similar claims.26 And Colegrove v. Green, supra, squarely held that voters who allege facts showing disadvantage to themselves as individuals have standing to sue.27 A num*207ber of cases decided after Colegrove recognized the standing of the voters there involved to bring those actions.28

These appellants seek relief in order to protect or vindicate an interest of their own, and of those similarly situated. Their constitutional claim is, in substance, that the 1901 statute constitutes arbitrary and capricious state action, offensive to the Fourteenth Amendment in its irrational disregard of the standard of apportionment prescribed by the State’s Constitution or of any standard, effecting a gross disproportion of representation to voting population. The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-á-vis voters *208in irrationally favored counties. A citizen’s right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution, when such impairment resulted from dilution by a false tally, cf. United States v. Classic, 313 U. S. 299; or by a refusal to count votes from arbitrarily selected precincts, cf. United States v. Mosley, 238 U. S. 383, or by a stuffing of the ballot box, cf. Ex parte Siebold, 100 U. S. 371; United States v. Saylor, 322 U. S. 385.

It would not be necessary to decide whether appellants’, allegations of impairment of their votes by the 1901 apportionment will, ultimately, entitle them to any relief, in order to hold that they have standing to seek it. If such impairment does produce a legally cognizable injury, they are among those who have sustained it. They are asserting “a plain, direct and adequate interest in maintaining the effectiveness of their votes,” Coleman v. Miller, 307 U. S., at 438, not merely a claim of “the right, possessed by every citizen, to require that the Government be administered according to law . . . .” Fairchild v. Hughes, 258 U. S. 126, 129; compare Leser v. Garnett, 258 U. S. 130. They are entitled to a hearing and to the District Court’s decision on their claims. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 1 Cranch 137, 163.

IV.

Justiciability.

In holding that the subject matter of this suit was not justiciable, the District Court relied on Colegrove v. Green, supra, and subsequent per curiam cases.29 The *209court stated: “From a review of these decisions there can be no doubt that the federal rule ... is that the federal courts . . . will not intervene in cases of this type to compel legislative reapportionment.” 179 F. Supp., at 826. We understand the District Court to have read the cited cases as compelling the conclusion that since the appellants sought to have a legislative apportionment held unconstitutional, their suit presented a “political question” and was therefore nonjusticiable. ( We hold that this challenge to an apportionment presents no nonjusticiable “political question.” The cited cases do not hold the contrary.

Of course the mere fact that the suit seeks protection of a political right does not mean it presents a political question. Such an objection “is little more than a play upon words.” Nixon v. Herndon, 273 U. S. 536, 540. Rather, it is argued that apportionment cases, whatever the actual wording of the complaint, can involve no federal constitutional right except one resting on the guaranty of a republican form of government,30 and that complaints based on that clause have been held to present political questions which are nonjusticiable.

We hold that the claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justici-ability is therefore not foreclosed by our decisions of cases involving that clause. The District Court misinterpreted Colegrove v. Green and other decisions of this Court on which it relied. Appellants’ claim that they are being denied equal protection is justiciable, and if *210“discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.” Snowden v. Hughes, 321 U. S. 1, 11. To show why we reject the argument based on the Guaranty Clause, we must examine the authorities under it. But because there appears to be some uncertainty as to why those cases did present political questions, and specifically as to whether this apportionment case is like those cases, we deem it necessary first to consider the contours of the “political question” doctrine.

Our discussion, even at the price of extending this opinion, requires review of a number of political question cases, in order to expose the attributes of the doctrine— attributes which, in various settings, diverge, combine, appear, and disappear in seeming disorderliness. Since that review is undertaken solely to demonstrate that neither singly nor collectively do these cases support a conclusion that this apportionment case is non justiciable, we of course do not explore their implications in other contexts. That review reveals that in the Guaranty Clause cases and in the other “political question” cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the “political question.”

We have said that “In determining whether a question falls within [the political question] category, the appro-riateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” Coleman v. Miller, 307 U. S. 433, 454-455. The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the “political question” label to obscure the need for *211case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine. We shall then show that none of those threads catches this case.

Foreign relations: There are sweeping statements to the effect that all questions touching foreign relations are political questions.31 Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature;32 but many such questions uniquely demand single-voiced statement of the Government’s views.33 Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible conse*212quences of judicial action. For example, though a court will not ordinarily inquire whether a treaty has been terminated, since on that question “governmental action . . . must be regarded as of controlling importance,” if there has been no conclusive “governmental action” then a court can construe a treaty and may find it provides the answer. Compare Terlinden v. Ames, 184 U. S. 270, 285, with Society for the Propagation of the Gospel in Foreign Parts v. New Haven, 8 Wheat. 464, 492-495.34 Though a court will not undertake to construe a treaty in a manner inconsistent with a subsequent federal statute, no similar hesitancy obtains if the asserted clash is with state law. Compare Whitney v. Robertson, 124 U. S. 190, with Kolovrat v. Oregon, 366 U. S. 187.

While recognition of foreign governments so strongly defies judicial treatment that without executive recognition a foreign state has been called “a republic of whose existence we know nothing,” 35 and the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory,36 once sovereignty over an area is politically determined and declared, courts may examine the resulting status and decide independently whether a statute applies to that area.37 Similarly, recognition of belligerency abroad is an executive responsibility, but if the executive proclamations fall short of an explicit answer, a court may construe them seeking, for example, to determine whether the situation is such that statutes designed to assure American neutrality have *213become operative. The Three Friends, 166 U. S. 1, 63, 66. Still again, though it is the executive that determines a person’s status as representative of a foreign government, Ex parte Hitz, 111 U. S. 766, the executive’s statements will be construed where necessary to determine the court’s jurisdiction, In re Baiz, 135 U. S. 403. Similar judicial action in the absence of a recognizedly authoritative executive declaration occurs in cases involving the immunity from seizure of vessels owned by friendly foreign governments. Compare Ex parte Peru, 318 U. S. 578, with Mexico v. Hoffman, 324 U. S. 30, 34—35.

Dates of duration of hostilities: Though it has been stated broadly that “the power which declared the necessity is the power to declare its cessation, and what the cessation requires,” Commercial Trust Co. v. Miller, 262 U. S. 51, 57, here too analysis reveals isolable reasons for the presence of political questions, underlying this Court’s refusal to review the political departments’ determination of when or whether a war has ended. Dominant is the need for finality in the political determination, for emergency’s nature demands “A prompt and unhesitating obedience,” Martin v. Mott, 12 Wheat. 19, 30 (calling up of militia). Moreover, “the cessation of hostilities does not necessarily end the war power. It was stated in Hamilton v. Kentucky Distilleries & W. Co., 251 U. S. 146, 161, that the war power includes the power ‘to remedy the evils which have arisen from its rise and progress’ and continues during that emergency. Stewart v. Kahn, 11 Wall. 493, 507.” Fleming v. Mohawk Wrecking Co., 331 U. S. 111, 116. But deference rests on reason, not habit.38 The question in a particular case may not seriously implicate considerations of finality — e. g., a public program of importance *214(rent control) yet not central to the emergency effort.39 Further, clearly definable criteria for decision may be available. In such case the political question barrier falls away: “[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. ... [It can] inquire whether the exigency still existed upon which the continued operation of the law depended.” Chastleton Corp. v. Sinclair, 264 U. S. 543, 547-548.40 Compare Woods v. Miller Co., 333 U. S. 138. On the other hand, even in private litigation which directly implicates no feature of separation of powers, lack of judicially discoverable standards and the drive for even-handed application may impel reference to the political departments’ determination of dates of hostilities’ beginning and ending. The Protector, 12 Wall. 700.

Validity of enactments: In Coleman v. Miller, supra, this Court held that the questions of how long a proposed amendment to the Federal Constitution remained open to ratification, and what effect a prior rejection had on a subsequent ratification, were committed to congressional resolution and involved criteria of decision that necessarily escaped the judicial grasp.41 Similar considerations apply to the enacting process: “The respect due to coequal and independent departments,” and the need for finality and certainty about the status of a statute contribute to judicial reluctance to inquire whether, as passed, it complied with all requisite formalities. Field v. Clark, 143 U. S. 649, 672, 676-677; see Leser v. Garnett, 258 U. S. 130, 137. But it is not true that courts will never delve *215into a legislature’s records upon such a quest: If the enrolled statute lacks an effective date, a court will not hesitate to seek it in the legislative journals in order to preserve the enactment. Gardner v. The Collector, 6 Wall. 499. The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.

The status of Indian tribes: This Court’s deference to the political departments in determining whether Indians are recognized as a tribe, while it reflects familiar attributes of political questions,42 United States v. Holliday, 3 Wall. 407, 419, also has a unique element in that “the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else. . . . [The Indians are] domestic dependent nations ... in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.” The Cherokee Nation v. Georgia, 5 Pet. 1, 16, 17.43 Yet, here too, there is no blanket rule. While *216“ ‘It is for [Congress] . . . , and not for the courts, to determine when the true interests of the Indian require his release from [the] condition of tutelage’ ... , it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe . . . .” United States v. Sandoval, 231 U. S. 28, 46. Able to discern what is “distinctly Indian,” ibid., the courts will strike down *217any heedless extension of that label. They will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power.

It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. 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; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence. The doctrine of which we treat is one of “political questions,” not one of “political cases.” The courts cannot reject as “no law suit” a bona fide controversy as to whether some action denominated “political” exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.

But it is argued that this case shares the characteristics of decisions that constitute a category not yet considered, cases concerning the Constitution’s guaranty, in Art. IY, *218§ 4, of a republican form of government. A conclusion as to whether the case at bar does present a political question cannot be confidently reached until we have considered those cases with special care. We shall discover that Guaranty Clause claims involve those elements which define a “political question,” and for that reason and no other, they are nonjusticiable. In particular, we shall discover that the non justiciability of such claims has nothing to do with their touching upon matters of state governmental organization.

Republican form of government: Luther v. Borden, 7 How. 1, though in form simply an action for damages for trespass was, as Daniel Webster said in opening the argument for the defense, “an unusual case.”44 The defendants, admitting an otherwise tortious breaking and entering, sought to justify their action on the ground that they were agents of the established lawful government of Rhode Island, which 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. The case arose “out of the unfortunate political differences which agitated the people of Rhode Island in 1841 and 1842,” 7 How., at 34, and which had resulted in a situation wherein two groups laid competing claims to recognition as the lawful government.45 The plaintiff’s right to *219recover depended upon which of the two groups was entitled to such recognition; but the lower court’s refusal to receive evidence or hear argument on that issue, its charge to the jury that the earlier established or “charter” government was lawful, and the verdict for the defendants, were affirmed upon appeal to this Court.

Chief Justice Taney’s opinion for the Court reasoned as follows: (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.”46 There was, of course, no room for application of any doctrine of de facto status to uphold prior acts of an officer not authorized de jure, for such would have defeated the plaintiff’s very action. A decision for the plaintiff would inevitably have produced some significant measure of chaos, a consequence to be avoided if it could be done without abnegation of the judicial duty to uphold the Constitution.

(2) No state court had recognized as a judicial responsibility settlement of the issue of the locus of state governmental authority. Indeed, the courts of Rhode Island had in several cases held that “it rested with the political power to decide whether the charter government had been displaced or not,” and that that department had acknowledged no change.

*220(3) Since “[t]he 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.47

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

“Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and . . . Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts.

*221“So, too, as relates to the clause in the above-mentioned article of the Constitution, providing for cases of domestic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfill this guarantee. . . . [B]y the act of February 28, 1795, [Congress] provided, that, ‘in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection.’

“By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. . . .

“After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? ... If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order. . . .

“It is true that in this case the militia were not called out by the President. But upon the application of the governor under the charter government, the President recognized him as the executive power of the State, and took measures to call out the militia to support his authority if it should be found necessary for the general government to interfere . . . . [C]ertainly no court of the United States, with a knowledge of this decision, would have been justified in recognizing the opposing party as the lawful gov*222ernment .... In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice. . . 7 How., at 42-44.

Clearly, several factors were thought by the Court in Luther to make the question there “political’': the commitment to the other branches of the decision as to which is the lawful state government; the unambiguous action by the President, in recognizing the charter government as the lawful authority; the need for finality in the executive’s decision; and the lack of criteria by which a court could determine which form of government was republican.48

*223But the only significance that Luther could have for our immediate purposes is in its holding that the Guaranty Clause is not a repository of judicially manageable standards which a court could utilize independently in order to identify a State’s lawful government. The Court has since refused to resort to the Guaranty Clause — which alone had been invoked for the purpose — as the source of a constitutional standard for invalidating state action. See Taylor & Marshall v. Beckham (No. 1), 178 U. S. 548 (claim that Kentucky’s resolution of contested gubernatorial election deprived voters of republican government held nonjusticiable); Pacific States Tel. Co. v. Oregon, 223 U. S. 118 (claim that initiative and referendum negated republican government held nonjusticiable) ; Kiernan v. Portland, 223 U. S. 151 (claim that municipal charter amendment -per municipal initiative and referendum negated republican government held ñoñ-*224justiciable); Marshall v. Dye, 231 U. S. 250 (claim that Indiana’s constitutional amendment procedure negated republican government held non justiciable); O’Neill v. Leamer, 239 U. S. 244 (claim that delegation to court of power to form drainage districts negated republican government held “futile”); Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (claim that invalidation of state reapportionment statute per referendum negates republican government held non justiciable);49 Mountain Timber Co. v. Washington, 243 U. S. 219 (claim that workmen’s compensation violates republican government held nonjusti-ciable); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U. S. 74 (claim that rule requiring invalidation of statute by all but one justice of state court negated republican government held nonjusticiable); Highland Farms Dairy v. Agnew, 300 U. S. 608 (claim that delegation to agency of power to control milk prices violated republican government, rejected).

Just as the Court has consistently held that a challenge to state action based on the Guaranty Clause presents no justiciable question so has it held, and for the same reasons, that challenges to congressional action on the ground of inconsistency with that clause present no justiciable question. In Georgia v. Stanton, 6 Wall. 50, the State sought by an original bill to enjoin execution of the Reconstruction Acts, claiming that it already possessed “A republican State, in every political, legal, constitutional, and juridical sense,” and that enforcement of the new Acts “Instead of keeping the guaranty against a forcible overthrow of its government by foreign invaders or domestic insurgents, ... is destroying that very government by force.” 50 Congress had clearly refused to *225recognize the republican character of the government of the suing State.51 It seemed to the Court that the only-constitutional claim that could be presented was under the Guaranty Clause, and Congress having determined that the effects of the recent hostilities required extraordinary measures to restore governments of a republican form, this Court refused to interfere with Congress' action at the behest of a claimant relying on that very guaranty.52

In only a few other cases has the Court considered Art. IY, § 4, in relation to congressional action. It has refused to pass on a claim relying on the Guaranty Clause to establish that Congress lacked power to allow the States to employ the referendum in passing on legislation redistricting for congressional seats. Ohio ex rel. Davis v. Hildebrant, supra. And it has pointed out that Congress is not required to establish republican government in the territories before they become States, and before they have attained a sufficient population to warrant a *226popularly elected legislature. Downes v. Bidwell, 182 U. S. 244, 278-279 (dictum).53

We come, finally, to the ultimate inquiry whether our precedents as to what constitutes a non justiciable “political question” bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the common characteristics which we have been able to identify and label descriptively are present. We find none: The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home54 if we take issue with Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.

This case does, in one sense, involve the allocation of political power within a State, and the appellants *227might conceivably have added a claim under the Guaranty Clause. Of course, as we have seen, any reliance on that clause would be futile. 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. True, it must be clear that the Fourteenth Amendment claim is not so enmeshed with those political question elements which render Guaranty Clause claims nonjusticiable as actually to present a political question itself. But we have found that not to be the case here.

In this connection special attention is due Pacific States Tel. Co. v. Oregon, 223 U. S. 118. In that case a corporation tax statute enacted by the initiative was attacked ostensibly on three grounds: (1) due process; (2) equal protection; and (3) the Guaranty Clause. But it was clear that the first two grounds were invoked solely in aid of the contention that the tax was invalid by reason of its passage:

“The defendant company does not contend here that it could not have been required to pay a license tax. It does not assert that it was denied an opportunity to be heard as to the amount for which it was taxed, or that there was anything inhering in the tax or involved intrinsically in the law which violated any of its constitutional rights. If such questions had been raised they would have been justiciable, and therefore would have required the calling into operation of judicial power. Instead, however, of doing any of these things, the attack on the statute here made is of a wholly different character. Its essentially political nature is at once made manifest by understanding that the assault which the contention here advanced makes it [sic] not on the tax as a tax, but on the State as a State. It is addressed to the *228framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power assailed, on the ground that its exertion has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the State that it establish its right to exist as a State, republican in form.” 223 U. S., at 150-151.

The due process and equal protection claims were held non justiciable in Pacific States not because they happened to be joined with a Guaranty Clause claim, or because they sought to place before the Court a subject matter which might conceivably have been dealt with through the Guaranty Clause, but because the Court believed that they were invoked merely in verbal aid of the resolution of issues which, in its view, entailed political questions. Pacific States may be compared with cases such as Mountain Timber Co. v. Washington, 243 U. S. 219, wherein the Court refused to consider whether a workmen’s compensation act violated the Guaranty Clause but considered at length, and rejected, due process and equal protection arguments advanced against it; and O’Neill v. Leamer, 239 U. S. 244, wherein the Court refused to consider whether Nebraska’s delegation of power to form drainage districts violated the Guaranty Clause, but went on to consider and reject the contention that the action against which an injunction was sought was not a taking for a public purpose.

We conclude then that the non justiciability of claims resting on the Guaranty Clause which arises from their embodiment of questions that were thought “political,” can have no bearing upon the justiciability of the equal protection claim presented in this case. Finally, we *229emphasize that it is the involvement in Guaranty Clause claims of the elements thought to define “political questions,” and no other feature, which could render them nonjusticiable. Specifically, we have said that such claims are not held nonjusticiable because they touch matters of state governmental organization. Brief examination of a few cases demonstrates this.

When challenges to state action respecting matters of “the administration of the affairs of the State and the officers through whom they are conducted” 55 have rested on claims of constitutional deprivation which are amenable to judicial correction, this Court has acted upon its view of the merits of the claim. For example, in Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, we reversed the Nebraska Supreme Court’s decision that Nebraska’s Governor was not a citizen of the United States or of the State and therefore could not continue in office. In Kennard v. Louisiana ex rel. Morgan, 92 U. S. 480, and Foster v. Kansas ex rel. Johnston, 112 U. S. 201, we considered whether persons had been removed from public office by procedures consistent with the Fourteenth Amendment’s due process guaranty, and held on the merits that they had. And only last Term, in Gomillion v. Lightfoot, 364 U. S. 339, we applied the Fifteenth Amendment to strike down a redrafting of municipal boundaries which effected a discriminatory impairment of voting rights, in the face of what a majority of the Court of Appeals thought to be a sweeping commitment to state legislatures of the power to draw and redraw such boundaries.56

Gomillion was brought by a Negro who had been a resident of the City of Tuskegee, Alabama, until the municipal boundaries were so recast by the State Legis*230lature as to exclude practically all Negroes. The plaintiff claimed deprivation of the right to vote in municipal elections. The District Court’s dismissal for want of jurisdiction and failure to state a claim upon which relief could be granted was affirmed by the Court of Appeals. This Court unanimously reversed. This Court’s answer to the argument that States enjoyed unrestricted control over municipal boundaries was:

“Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. . . . The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. Tt is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.’ ” 364 U. S., at 344-345.

To a second argument, that Colegrove v. Green, supra, was a barrier to hearing the merits of the case, the Court responded that Gomillion was lifted “out of the so-called 'political’ arena and into the conventional' sphere of constitutional litigation” because here was discriminatory treatment of a racial minority violating the Fifteenth Amendment.

“A statute which is alleged to have worked unconstitutional deprivations of petitioners’ rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. . . . While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of *231their theretofore enjoyed voting rights. That was not Colegrove v. Green.

“When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.” 364 U. S., at 347.57

We have not overlooked such cases as In re Sawyer, 124 U. S. 200, and Walton v. House of Representatives, 265 U. S. 487, which held that federal equity power could not be exercised to enjoin a state proceeding to remove a public officer. But these decisions explicitly reflect only a traditional limit upon equity jurisdiction, and not upon federal courts’ power to inquire into matters of state governmental organization. This is clear not only from the opinions in those cases, but also from White v. Berry, 171 U. S. 366, which, relying on Sawyer, withheld federal equity from staying removal of a federal officer. Wilson v. North Carolina, 169 U. S. 586, simply dismissed an appeal from an unsuccessful suit to upset a State’s removal procedure, on the ground that the constitutional claim presented — that a jury trial was necessary if the removal procedure was to comport with due process requirements — was frivolous. Finally, in Taylor and Marshall v. Beckham (No. 1), 178 U. S. 548, where losing candidates attacked the constitutionality of Kentucky’s resolution of a contested gubernatorial election, the Court refused to consider the merits of a claim posited upon *232the Guaranty Clause, holding it presented a political question, but also held on the merits that the ousted candidates had suffered no deprivation of property without due process of law.58

Since, as has been established, the equal protection claim tendered in this case does not require decision of any political question, and since the presence of a matter affecting state government does not render the case non-justiciable, it seems appropriate to examine again the reasoning by which the District Court reached its conclusion that the case was non justiciable.

We have already noted that the District Court’s holding that the subject matter of this complaint was non-justiciable relied upon Colegrove v. Green, supra, and later cases. Some of those concerned the choice of members of a state legislature, as in this case; others, like Colegrove itself and earlier precedents, Smiley v. Holm, 285 U. S. 355, Koenig v. Flynn, 285 U. S. 375, and Carroll v. Becker, 285 U. S. 380, concerned the choice of Representatives in the Federal Congress. Smiley, Koenig and Carroll settled the issue in favor of justiciability of questions of congressional redistricting. The Court followed these precedents in Colegrove although over the dissent of three of the seven Justices who participated in that decision. On the issue of justiciability, all four Justices comprising a majority relied upon Smiley v. Holm, but in two opinions, one for three Justices, 328 U. S., at 566, 568, and a separate one by Mr. Justice Rutledge, 328 U. S., at 564. The argument that congressional redistricting problems presented a “political question” the resolution of which was confided to Congress might have been rested upon Art. I, § 4, Art. I, § 5, Art. I, § 2, and Amendment *233XIV, § 2. Mr. Justice Rutledge said: “But for the ruling in Smiley v. Holm, 285 U. S. 355, I should have supposed that the provisions of the Constitution, Art. I, § 4, that 'The Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . .’; Art. I, § 2 [but see Amendment XIV, § 2], vesting in Congress the duty of apportionment of representatives among the several states ‘according to their respective Numbers’ ; and Art. I, § 5, making each House the sole judge of the qualifications of its own members, would remove the issues in this case from justiciable cognizance. But, in my judgment, the Smiley case rules squarely to the contrary, save only in the matter of degree. . . . Assuming that that decision is to stand, I think . . . that its effect is to rule that this Court has power to afford relief in a case of this type as against the objection that the issues are not justiciable.” 328 U. S., at 564-565. Accordingly, Mr. Justice Rutledge joined in the conclusion that the case was justiciable, although he held that the dismissal of the complaint should be affirmed. His view was that “The shortness of the time remaining [before forthcoming elections] makes it doubtful whether action could, or would, be taken in time to secure for petitioners the effective relief they seek. ... I think, therefore, the case is one in which the Court may properly, and should, decline to exercise its jurisdiction. Accordingly, the judgment should be affirmed and I join in that disposition of the cause.” 328 U. S., at 565-566.59

*234Article I, §§ 2, 4, and 5, and Amendment XIV, § 2, relate only to congressional elections and obviously do not govern apportionment of state legislatures. However, our decisions in favor of justiciability even in light of those provisions plainly afford no support for the District Court’s conclusion that the subject matter of this controversy presents a political question. Indeed, the refusal to award relief in Colegrove resulted only from the controlling view of a want of equity. Nor is anything contrary to be found in those per curiams that came after Colegrove. This Court dismissed the appeals in Cook v. Fortson and Turman v. Duckworth, 329 U. S. 675, as moot. MacDougall v. Green, 335 U. S. 281, held only that in that case equity would not act to void the State’s requirement that there be at least a minimum of support for nom*235inees for state-wide office, over at least a minimal area of the State. Problems of timing were critical in Remmey v. Smith, 342 U. S. 916, dismissing for want of a substantial federal question a three-judge court’s dismissal of the suit as prematurely brought, 102 F. Supp. 708; and in Hartsfield v. Sloan, 357 U. S. 916, denying mandamus sought to compel the convening of a three-judge court— movants urged the Court to advance consideration of their case, “Inasmuch as the mere lapse of time before this case can be reached in the normal course of . . . business may defeat the cause, and inasmuch as the time problem is due to the inherent nature of the case . . . .” South v. Peters, 339 U. S. 276, like Colegrove appears to be a refusal to exercise equity’s powers; see the statement of the holding, quoted, supra, p. 203. And Cox v. Peters, 342 U. S. 936, dismissed for want of a substantial federal question the appeal from the state court’s holding that their primary elections implicated no “state action.” See 208 Ga. 498, 67 S. E. 2d 579. But compare Terry v. Adams, 345 U. S. 461.

Tedesco v. Board of Supervisors, 339 U. S. 940, indicates solely that no substantial federal question was raised by a state court’s refusal to upset the- districting of city council seats, especially as it was urged that there was a rational justification for the challenged districting. See 43 So. 2d 514. Similarly, in Anderson v. Jordan, 343 U. S. 912, it was certain only that the state court had refused to issue a discretionary writ, original mandamus in the Supreme Court. That had been denied without opinion, and of course it was urged here that an adequate state ground barred this Court’s review. And in Kidd v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40, the Supreme Court of Tennessee held that it could not invalidate the very statute at issue in the case at bar, but its holding rested on its state law of remedies, i. e., the state view of *236de facto officers,60 and not on any view that the norm for legislative apportionment in Tennessee is not numbers of qualified voters resident in the several counties. Of course this Court was there precluded by the adequate state ground, and in dismissing the appeal, 352 U. S. 920, we cited Anderson, supra, as well as Colegrove. Nor does the Tennessee court’s decision in that case bear upon this, for just as in Smith v. Holm, 220 Minn. 486, 19 N. W. 2d 914, and Magraw v. Donovan, 163 F. Supp. 184, 177 F. Supp. 803, a state court’s inability to grant relief does not bar a federal court’s assuming jurisdiction to inquire into alleged deprivation of federal constitutional rights. Problems of relief also controlled in Radford v. Gary, 352 U. S. 991, affirming the District Court’s refusal to mandamus the Governor to call a session of the legislature, to mandamus the legislature then to apportion, and if they did not comply, to mandamus the State Supreme Court to do so. And Matthews v. Handley, 361 U. S. 127, affirmed a refusal to strike down the State’s gross income tax statute — urged on the ground that the legislature was malapportioned — that had rested on the adequacy of available state legal remedies for suits involving that tax, including challenges to its constitutionality. Lastly, Colegrove v. Barrett, 330 U. S. 804, in which Mr. Justice Rutledge concurred in this Court’s refusal to note the appeal from a dismissal for want of equity, is sufficiently- explained by his statement in Cook v. Fortson, supra: “The discretionary exercise or non-exercise of equitable or declaratory judgment jurisdiction ... in one case is not precedent in another case *237where the facts differ.” 329 U. S., at 678, n. 8. (Citations omitted.)

We conclude that the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment,

The judgment of the District Court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

Mr. Justice Whittaker did not participate in the decision of this case.

APPENDIX TO OPINION OF THE COURT.

The Tennessee Code Annotated provides for representation in the General Assembly as follows:

“3-101. Composition — Counties electing one representative each. — The general assembly of the state of Tennessee shall be composed of thirty-three (33) senators and ninety-nine (99) representatives, to be apportioned among the qualified voters of the state as follows: Until the next enumeration and apportionment of voters each of the following counties shall elect one (1) representative, to wit: Bedford, Blount, Cannon, Carroll, Chester, Cocke, Claiborne, Coffee, Crockett, DeKalb, Dickson, Dyer, Fayette, Franklin, Giles, Greene, Hardeman, Hardin, Henry, Hickman, Hawkins, Haywood, Jackson, Lake, Lauderdale, Lawrence, Lincoln, Marion, Marshall, Maury, Monroe, Montgomery, Moore, McMinn, Mc-Nairy, Obion, Overton, Putnam, Roane, Robertson, Rutherford, Sevier, Smith, Stewart, Sullivan, Sumner, Tipton, Warren, Washington, White, Weakley, William*238son and Wilson. [Acts 1881 (E. S.), ch. 5, § 1; 1881 (E. S.), ch. 6, § 1; 1901, ch. 122, § 2; 1907, ch. 178, §§ 1, 2; 1915, ch. 145; Shan., § 123; Acts 1919, ch. 147, §§ 1, 2; 1925 Private, ch. 472, § 1; Code 1932, § 140; Acts 1935, ch. 150, § 1; 1941, ch. 58, § 1; 1945, ch. 68, § 1; C. Supp. 1950, § 140.]

“3-102. Counties electing two representatives each.— The following counties shall elect two (2) representatives each, to wit: Gibson and Madison. [Acts 1901, ch. 122, § 3; Shan., § 124; mod. Code 1932, § 141.]

“3-103. Counties electing three representatives each.— The following counties shall elect three (3) representatives each, to wit: Knox and Hamilton. [Acts 1901, ch. 122, § 4; Shan., § 125; Code 1932, § 142.]

“3-104. Davidson County. — Davidson county shall elect six (6) representatives. [Acts 1901, ch. 122, §5; Shan., § 126; Code 1932, § 143.]

“3-105. Shelby county. — Shelby county shall elect eight (8) representatives. Said county shall consist of eight (8) representative districts, numbered one (1) through eight (8), each district co-extensive with the county, with one (1) representative to be elected from each district. [Acts 1901, ch. 122, §6; Shan., §126a1; Code 1932, § 144; Acts 1957, ch. 220, § 1; 1959, ch. 213, §1.]

“3-106. Joint representatives. — The following counties jointly, shall elect one representative, as follows, to wit:

“First district — Johnson and Carter.

“Second district — Sullivan and Hawkins.

“Third district — Washington, Greene and Unicoi.

“Fourth district — Jefferson and Hamblen.

“Fifth district — Hancock and Grainger.

“Sixth district — Scott, Campbell, and Union.

“Seventh district — Anderson and Morgan.

“Eighth district — Knox and Loudon.

*239“Ninth district — Polk and Bradley.

“Tenth district — Meigs and Rhea.

“Eleventh district — Cumberland, Bledsoe, Sequatchie, Van Burén and Grundy.

“Twelfth district — Fentress, Pickett, Overton, Clay and Putnam.

“Fourteenth district — Sumner, Trousdale and Macon.

“Fifteenth district — Davidson and Wilson.

“Seventeenth district — Giles, Lewis, Maury and Wayne.

“Eighteenth district — Williamson, Cheatham and Robertson.

“Nineteenth district — Montgomery and Houston.

“Twentieth district — Humphreys and Perry.

“Twenty-first district — Benton and Decatur.

“Twenty-second district — Henry, Weakley and Carroll.

“Twenty-third district — Madison and Henderson.

“Twenty-sixth district — Tipton and Lauderdale. [Acts 1901, ch. 122, § 7; 1907, ch. 178, §§ 1, 2; 1915, ch. 145, §|1, 2; Shan., § 127; Acts 1919, ch. 147, § 1; 1925 Private, ch. 472, § 2; Code 1932, § 145; Acts 1933, ch. 167, § 1; 1935, ch. 150, § 2; 1941, ch. 58, § 2; 1945, ch. 68, § 2; C. Supp. 1950, § 145; Acts 1957, ch. 220, § 2.]

“3-107. State senatorial districts. — Until the next enumeration and apportionment of voters, the following counties shall comprise the senatorial districts, to wit:

“First district — Johnson, Carter, Unicoi, Greene, and Washington.

“Second district — Sullivan and Hawkins.

“Third district — Hancock, Morgan, Grainger, Claiborne, Union, Campbell, and Scott.

“Fourth district — Cocke, Hamblen, Jefferson, Sevier, and Blount.

“Fifth district — Knox.

“Sixth district — Knox, Loudon, Anderson, and Roane.

*240“Seventh district — McMinn, Bradley, Monroe, and Polk.

“Eighth district — Hamilton.

“Ninth district — Rhea, Meigs, Bledsoe, Sequatchie, Van Burén, White, and Cumberland.

“Tenth district — Fentress, Pickett, Clay, Overton, Putnam, and Jackson.

“Eleventh district — Marion, Franklin, Grundy and Warren.

“Twelfth district — Rutherford, Cannon, and DeKalb.

“Thirteenth district — Wilson and Smith.

“Fourteenth district — Sumner, Trousdale and Macon.

“Fifteenth district — Montgomery and Robertson.

“Sixteenth district — Davidson.

“Seventeenth district — Davidson'.

“Eighteenth district — Bedford, Coffee and Moore.

“Nineteenth district — Lincoln and Marshall.

“Twentieth district — Maury, Perry and Lewis.

“Twenty-first district — Hickman, Williamson and Cheatham.

“Twenty-second district — Giles, Lawrence and Wayne.

“Twenty-third district — Dickson, Humphreys, Houston and Stewart.

“Twenty-fourth district — Henry and Carroll.

“Twenty-fifth district — Madison, Henderson and Chester.

“Twenty-sixth district — Hardeman, McNairy, Hardin, Decatur and Benton.

“Twenty-seventh district — Gibson.

“Twenty-eighth district — Lake, Obion and Weakley.

“Twenty-ninth district — Dyer, Lauderdale and Crockett.

“Thirtieth district — Tipton and Shelby.

“Thirty-first district — Haywood and Fayette.

“Thirty-second district — Shelby.

*241“Thirty-third district — Shelby. [Acts 1901, ch. 122, § 1; 1907, ch. 3, § 1; Shan., § 128; Code 1932, § 146; Acts 1945, ch. 11, § 1; C. Supp. 1950, § 146.]”

Today’s apportionment statute is as enacted in 1901, with minor changes. For example:

(1) In 1957, Shelby County was raised from 7% to 8 representatives. Acts of 1957, c. 220. See also Acts of 1959, c. 213. The 1957 Act, § 2, abolished the Twenty-seventh Joint Representative District, which had included Shelby and Fayette Counties.

(2) In 1907, Marion County was given a whole House seat instead of sharing a joint seat with Franklin County. Acts of 1907, c. 178. Acts of 1915, c. 145, repealed that change, restoring the status quo ante. And that reversal was itself reversed, Acts of 1919, c. 147.

(3) James County was in 1901 one of five counties in the Seventh State Senate District and one of the three in the Ninth House District. It appears that James County no longer exists but we are not advised when or how it was dissolved.

(4) In 1945, Anderson and Roane Counties were shifted to the Sixth State Senate District from the Seventh, and Monroe and Polk Counties were shifted to the Seventh from the Sixth. Acts of 1945, c. 11.

1

Public Acts of Tennessee, c. 122 (1901), now Tenn. Code Ann. §§ 3-101 to 3-107. The full text of the 1901 Act as amended appears in an Appendix to this opinion, post, p. 237.

2

The three-judge court was convened pursuant to the order of a single district judge, who, after he had reviewed certain decisions of this Court and found them distinguishable in features “that may ultimately prove to be significant,” held that the complaint was not so obviously without merit that he would be justified in refusing to convene a three-judge court. 175 F. Supp. 649, 652.

3

We heard argument first at the 1960 Term and again at this Term when the case was set over for reargument. 366 U. S. 907.

4

A county having less than, but at least two-thirds of, the population required to choose a Representative is allocated one Representative. See also Tenn. Const., Art. II, § 6. A common and much more substantial departure from the number-of-voters or total-population standard is the guaranty of at least one seat to each county. See, e. g., Kansas Const., Art. 2, § 2; N. J. Const., Art. 4, § 3, ¶ 1.

While the Tennessee Constitution speaks of the number of “qualified voters,” the exhibits attached to the complaint use figures based on the number of persons 21 years of age and over. This basis seems to have been employed by the General Assembly in apportioning legislative seats from the outset. The 1870 statute providing for the first enumeration, Acts of 1870 (1st Sess.), c. 107, directed the courts of *190the several counties to select a Commissioner to enumerate “all the male inhabitants of their respective counties, who are twenty-one years of age and upward, who shall be resident citizens of their counties on the first day of January, 1871 ...” Reports compiled in the several counties on this basis were submitted to the General Assembly by the Secretary of State and were used in the first apportionment. Appendix to Tenn. S. J., 1871, 41-43. Yet such figures would not reflect the numbers of persons qualified to exercise the franchise under the then-governing qualifications: (a) citizenship; (b) residence in the State 12 months, and in the county 6 months; (c) payment of poll taxes for the preceding year unless entitled to exemption. Acts of 1870 (2d Sess.), c. 10. (These qualifications continued at least until after 1901. See Shan. Tenn. Code Ann., §§ 1167, 1220 (1896; Supp. 1904).) Still, when the General Assembly directed the Secretary of State to do all he could to obtain complete reports from the counties, the Resolution spoke broadly of “the impossibility of . . . [redistricting] without the census returns of the voting population from each county . . . .” Tenn. S. J., 1871, 46-47, 96. The figures also showed a correlation with Federal Census figures for 1870. The Census reported 259,016 male citizens 21 and upward in Tennessee. Ninth Census of the United States, 1870, Statistics of the Population 635 (1872). The Tennessee Secretary of State’s Report, with 15 counties not reported, gave a figure of 237,431. Using the numbers of actual votes in the last gubernatorial election for those 15 counties, the Secretary arrived at a total of 250,025. Appendix to Tenn. S. J., 1871, 41-43. This and subsequent history indicate continued reference to Census figures and finally in 1901, abandonment of a state enumeration in favor of the use of Census figures. See notes 7, 8, 9, infra. See also Williams, Legislative Apportionment in Tennessee, 20 Tenn. L. Rev. 235, 236, n. 6. It would therefore appear that unless there is a contrary showing at the trial, appellants’ current figures, taken from the United States Census Reports, are apposite.

5

Acts of 1871 (1st Sess.), c. 146.

6

Acts of 1870 (1st Sess.), c. 107.

7

The statute authorizing the enumeration was Acts of 1881 (1st Sess.), c. 124. The enumeration commissioners in the counties were allowed “access to the U. S. Census Reports of the enumeration of 1880, on file in the offices of the County Court Clerks of the State, and a reference to said reports by said commissioners shall be legitimate as an auxiliary in the enumeration required . . . .” Ibid., § 4.

The United States Census reported 330,305 male citizens 21 and upward in Tennessee. The Tenth Census of the United States, 1880, Compendium 596 (1883). The Tennessee Secretary of State’s Report gave a figure of 343,817, Tenn. H. J. (1st Extra. Sess.), 1881, 12-14 (1882).

The General Assembly was enlarged in accordance with the constitutional mandate since the State’s population had passed 1,500,000. Acts of 1881 (1st Extra. Sess.), c. 5; and see, id., S. J. Res. No. Ill; see also Tenth Census of the United States, 1880, Statistics of the Population 77 (1881). The statute apportioning the General Assembly was Acts of 1881 (1st Extra. Sess.), c. 6.

8

Acts of 1891, c. 22; Acts of 1891 (Extra. Sess.), c. 10. Reference to United States Census figures was allowed just as in 1881, see supra, n. 7. The United States Census reported 402,476 males 21 and over in Tennessee. The Eleventh Census of the United States, 1890, Population (Part I) 781 (1895). The Tennessee Secretary of State’s Report gave a figure of 399,575. 1 Tenn. S. J., 1891, 473-474.

9

Acts of 1901, S. J. Res. No. 35; Acts of 1901, c. 122. The Joint Resolution said: “The Federal census of 1900 has been very recently taken and by reference to said Federal census an accurate enumeration of the qualified voters of the respective counties of the State of Tennessee can be ascertained and thereby save the expense of an actual enumeration . . . .”

10

For the history of legislative apportionment in Tennessee, including attempts made since 1901, see Tenn. S. J., 1959, 909-930; *192and “A Documented Survey of Legislative Apportionment in Tennessee, 1870-1957,” which is attached as exhibit 2 to the intervening complaint of Mayor West of Nashville, both prepared by the Tennessee State Historian, Dr. Robert H. White. Examples of preliminary steps are: In 1911, the Senate called upon the Redistricting Committee to make an enumeration of qualified voters and to use the Federal Census of 1910 as the basis. Acts of 1911, S. J. Res. No. 60, p. 315. Similarly, in 1961, the Senate called for appointment of a select committee to make an enumeration of qualified voters. Acts of 1961, S. J. Res. No. 47. In 1955, the Senate called for a study of reapportionment. Tenn. S. J., 1955, 224; but see id., at 1403. Similarly, in 1961, the House directed the State Legislative Council to study methods of reapportionment. Acts of 1961, H. J. Res. No. 65.

11

Twelfth Census of the United States, 1900, Population (Part 1) 39 (1901); (Part 2) 202 (1902).

12

United States Census of Population: 1960, General Population Characteristics — Tennessee, Table 16 (1961).

13

In the words of one of the intervening complaints, the apportionment was “wholly arbitrary, . . . and, indeed, based upon no lawfully pertinent factor whatever.”

14

The appellants claim that no General Assembly constituted according to the 1901 Act will -submit reapportionment proposals either to the people or to a Constitutional Convention. There is no provision for popular initiative in Tennessee. Amendments proposed in the Senate or House must first be approved by a majority of all members of each House and again by two-thirds of the members in the General Assembly next chosen. The proposals are then submitted to the people at the next general election in which a Governor is to be chosen. Alternatively, the legislature may submit to the people at any general election the question of calling a convention to consider specified proposals. Such as are adopted at a convention do not, however, become effective unless approved by a majority of the qualified voters voting separately on each proposed change or amendment at an election fixed by the convention. Conventions shall not ..be held oftener than once in six years. Tenn. Const., Art. XI, § 3. Acts of 1951, c. 130, § 3, and Acts of 1957, c. 340, § 3, provided that delegates to the 1953 and 1959 conventions were to be chosen from the counties and floterial districts just as are members of the State House of Representatives. The General Assembly’s call for a 1953 Constitutional Convention originally contained a provision “relating to the appointment [sic] of representatives and senators” but this was excised. Tenn. H. J., 1951, 784. A Resolution introduced at the 1959 Constitutional Convention and reported unfavorably by the Rules Committee of the Convention was as follows:

“By Mr. Chambliss (of Hamilton County), Resolution No. 12— Relative to Convention considering reapportionment, which is as follows:

“Whereas, there is a rumor that this Limited Convention has been called for the purpose of postponing for six years a Convention that would make a decision as to reapportionment; and

*194“Whereas, there is pending in the United States Courts in Tennessee a suit under which parties are seeking, through decree, to compel reapportionment; and

“Whereas, it is said that this Limited Convention, which was called for limited consideration, is yet a Constitutional Convention within the language of the Constitution as to Constitutional Conventions, forbidding frequent Conventions in the last sentence of Article Eleven, Section 3, second paragraph, more often than each six years, to-wit:

“ ‘No such Convention shall be held oftener than once in six years.’

“Now, Therefore, Be It Resolved, That it is the consensus of opinion of the members of this Convention that since this is a Limited Convention as hereinbefore set forth another Convention could be had if it did not deal with the matters submitted to this Limited Convention.

“Be It Further Resolved, That it is the consensus of opinion of this Convention that a Convention should be called by the General Assembly for the purpose of considering reapportionment in order that a possibility of Court enforcement being forced on the Sovereign State of Tennessee by the Courts of the National Government may be avoided.

“Be It Further Resolved, That this Convention be adjourned for two years to meet again at the same time set forth in the statute providing for this Convention, and that it is the consensus of opinion of this body that it is within the power of the next General Assembly of Tennessee to broaden the powers of this Convention and to authorize and empower this Convention to consider a proper amendment to the Constitution that will provide, when submitted to the electorate, a method of reapportionment.” Tenn. Constitutional Convention of 1959, The Journal and Debates, 35, 278.

15

It is clear that appellants’ federal constitutional claims rest exclusively on alleged violation of the Fourteenth Amendment. Their primary claim is that the 1901 statute violates the Equal Protection Clause of that amendment. There are allegations invoking the Due Process Clause but from the argument and the exhibits it appears that the Due Process Clause argument is directed at certain tax statutes. Insofar as the claim involves the validity of those statutes *195under the Due Process Clause we find it unnecessary to decide its merits. And if the allegations regarding the tax statutes are designed as the framework for proofs as to the effects of the allegedly discriminatory apportionment, we need not rely upon them to support our holding that the complaint states a federal constitutional claim of violation of the Equal Protection Clause. Whether, when the issue to be decided is one of the constitutional adequacy of this particular apportionment, taxation arguments and exhibits as now presented add anything, or whether they could add anything however presented, is for the District Court in the first instance to decide.

The complaint, in addition to the claims under the Federal Constitution, also alleges rights, and the General Assembly’s duties, under the Tennessee Constitution. Since we hold that appellants have — if it develops at trial that the facts support the allegations — a cognizable federal constitutional cause of action resting in no degree on rights guaranteed or putatively guaranteed by the Tennessee Constitution, we do not consider, let alone enforce, rights under a State Constitution which go further than the protections of the Fourteenth Amendment. Lastly, we need not assess the legal significance, in reaching our conclusion, of the statements of the complaint that the apportionment effected today under the 1901 Act is “contrary to the philosophy of government in the United States and all Anglo-Saxon jurisprudence . . . .”

16

We need not reach the question of indispensable parties because the District Court has not yet decided it.

17

The accuracy of calling even such dismissals “jurisdictional” was questioned in Bell v. Hood. See 327 U. S., at 683.

18

42 U. S. C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

19

This Court has frequently sustained District Court jurisdiction under 28 U. S. C. § 1343 (3) or its predecessors to entertain suits to redress deprivations of rights secured against state infringement by the Equal Protection and Due Process Clauses of the Fourteenth *201Amendment. Douglas v. Jeannette, 319 U. S. 157; Stefanelli v. Minard, 342 U. S. 117; cf. Nixon v. Herndon, 273 U. S. 536; Nixon v. Condon, 286 U. S. 73; Snowden v. Hughes, 321 U. S. 1; Smith v. Allwright, 321 U. S. 649; Monroe v. Pape, 365 U. S. 167; Egan v. Aurora, 365 U. S. 514.

20

Since that case was not brought to the Court until after the election had been held, the Court cited not only Wood v. Broom, but also directed dismissal for mootness, citing Brownlow v. Schwartz, 261 U. S. 216.

21

Compare Boeing Aircraft Co. v. King County, 330 U. S. 803 (“the appeal is dismissed for want of jurisdiction”). See Coleman v. Miller, 307 U. S. 433, 440.

22

Matthews did affirm, a judgment that may be read as a dismissal for want of jurisdiction, 179 F. Supp. 470. However, the motion to affirm also rested on the ground of failure to state a claim upon which relief could be granted. Cf. text following, on MacDougall v. Green. And see text, infra, p. 236.

23

The Mayor of Nashville suing “on behalf of himself and all residents of the City of Nashville, Davidson County, . . and the Cities of Chattanooga (Hamilton County) and Knoxville (Knox County), each suing on behalf of its residents, were permitted to intervene as parties plaintiff. Since they press the same claims as do the initial plaintiffs, we find it unnecessary to decide whether the intervenors would have standing to maintain this action in their asserted representative capacities.

24

The complaint also contains an averment that the appellants sue “on their own behalf and on behalf of all other voters in the State of Tennessee.” (Emphasis added.) This may be read to assert a claim that voters in counties allegedly over-represented in the General Assembly also have standing to complain. But it is not necessary to decide that question in this case.

25

The duties of the respective appellees are alleged to be as follows:

“Defendant, Joe C. Carr, is the duly elected, qualified and acting Secretary of State of the State of Tennessee, with his office in Nashville in said State, and as such he is charged with the duty of furnishing blanks, envelopes and information slips to the County Election Commissioners, certifying the results of elections and maintaining the records thereof; and he is further ex officio charged, together with the Governor and the Attorney General, with the duty of examining the election returns received from the County Election Commissioners and declaring the .election results, by the applicable provisions of the Tennessee Code Annotated, and by Chapter 164 of the Acts of 1949, inter alia.

“Defendant, George F. McCanless, is the duly appointed and acting Attorney General of the State of Tennessee, with his office in Nashville in said State, and is charged with the duty of advising the officers of the State upon the law, and is made by Section 23-1107 of the Tennessee Code Annotated a necessary party defendant in any declaratory judgment action where the constitutionality of statutes of the State of Tennessee is attacked, and he is ex-officio charged, together with the Governor and the Secretary of State, with the duty of declaring the election results, under Section 2-140 of the Tennessee Code Annotated.

“Defendant, Jerry McDonald, is the duly appointed Coordinator of Elections in the State of Tennessee, with his office in Nashville, Tennessee, and as suph official, is charged with the duties set forth in the public law enacted by the 1959 General Assembly of Tennessee creating said office.

“Defendants, Dr. Sam Coward, James Alexander, and Hubert Brooks are the duly appointed and qualified members constituting *206the State Board of Elections, and as such they are charged with the duty of appointing the Election Commissioners for all the counties of the State of Tennessee, the organization and supervision of the biennial elections as provided by the Statutes of Tennessee, Chapter 9 of Title 2 of the Tennessee Code Annotated, Sections 2-901, et seq.

“That this action is brought against the aforenamed defendants in their representative capacities, and that said Election Commissioners are sued also as representatives of all of the County Election Commissioners in the State of Tennessee, such persons being so numerous as to make it impracticable to bring them all before the court; that there is a common question of law involved, namely, the constitutionality of Tennessee laws set forth in the Tennessee Code Annotated, Section 3-101 through Section 3-109, inclusive; that common relief is sought against all members of said Election Commissions in their official capacities, it being the duties of the aforesaid County Election Commissioners, within their respective jurisdictions, to appoint the judges of elections, to maintain the registry of qualified voters of said County, certify the results of elections held in said County to the defendants State Board of Elections and Secretary of State, and of preparing ballots and taking other steps to prepare for and hold elections in said Counties by virtue of Sections 2-1201, et seq. of Tennessee Code Annotated, and Section 2-301, et seq. of Tennessee Code Annotated, and Chapter 164 of the Acts of 1949, inter alia.”

The question whether the named defendants are sufficient parties remains open for consideration on remand.

26

Smiley v. Holm, supra, at 361 (“ citizen, elector and taxpayer’ of the State”); Koenig v. Flynn, supra, at 379 (“ 'citizens and voters’ of the State”) Wood v. Broom, supra, at 4 (“citizen of Mississippi, a qualified elector under its laws, and also qualified to be a candidate for election as representative in Congress”); cf. Carroll v. Becker, supra (candidate for office).

27

Mr. Justice Rutledge was of the view that any question of standing was settled in Smiley v. Holm, supra; MR. Justice BlacK stated “that appellants had standing to sue, since the facts alleged show that *207they have been injured as individuals.” He relied on Coleman v. Miller, 307 U. S. 433, 438, 467. See 328 U. S. 564, 568.

Commentators have suggested that the following statement in Mr. Justice Frankfurter’s opinion might imply a view that appellants there had no standing: “This is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens. The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity.” 328 U. S., at 552. See Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1298 (1961); Lewis, Legislative Apportionment and the Federal Courts, 71 Harv. L. Rev. 1057, 1081-1083 (1958). But since the opinion goes on to consider the merits, it seems that this statement was not intended to intimate any view that the plaintiffs in that action lacked standing. Nor do the cases cited immediately after the above quotation deal with standing. See especially Lane v. Wilson, 307 U. S. 268, 272-273.

28

MacDougall v. Green, supra, at 282 (“the ‘Progressive Party,’ its nominees for United States Senator, Presidential Electors, and State offices, and several Illinois voters”); South v. Peters, supra, at 277 (“residents of the most populous county in the State”); Radford v. Gary, 145 F. Supp. 541, 542 (“citizen of Oklahoma and resident and voter in the most populous county”); Matthews v. Handley, supra (“citizen of the State”); see also Hawke v. Smith (No. 1), 253 U. S. 221; Leser v. Garnett, 258 U. S. 130; Coleman v. Miller, 307 U. S. 433, 437-446.

29

Cook v. Fortson, 329 U. S. 675; Turman v. Duckworth, ibid.; Colegrove v. Barrett, 330 U. S. 804; MacDougall v. Green, 335 U. S. 281; South v. Peters, 339 U. S. 276; Remmey v. Smith, 342 U. S. 916; *209Anderson v. Jordan, 343 U. S. 912; Kidd v. McCanless, 352 U. S. 920; Radford v. Gary, 352 U. S. 991.

30

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” U. S. Const., Art. IV, § 4.

31

E. g., “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.” Oetjen v. Central Leather Co., 246 U. S. 297, 302.

32

See Doe v. Braden, 16 How. 635, 657; Taylor v. Morton, 23 Fed. Cas., No. 13,799 (C. C. D. Mass.) (Mr. Justice Curtis), affirmed, 2 Black 481.

33

See Doe v. Braden, 16 How. 635, 657.

34

And see Clark v. Allen, 331 U. S. 503.

35

United States v. Klintock, 5 Wheat. 144, 149; see also United States v. Palmer, 3 Wheat. 610, 634-635.

36

Foster & Elam v. Neilson, 2 Pet. 253, 307; and see Williams v. Suffolk Insurance Co., 13 Pet. 415, 420.

37

Vermilya-Brown Co. v. Connell, 335 U. S. 377, 380; De Lima v. Bidwell, 182 U. S. 1, 180-200.

38

See, e. g., Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 426.

39

Contrast Martin v. Mott, supra.

40

But cf. Dakota Central Tel. Co. v. South Dakota, 260 U. S. 163, 184, 187.

41

Cf. Dillon v. Gloss, 256 U. S. 368. See also United States v. Sprague, 282 U. S. 716, 732.

42

See also Fellows v. Blacksmith, 19 How. 366, 372; United States v. Old Settlers, 148 U. S. 427, 466; and compare Doe v. Braden, 16 How. 635, 657.

43

This case, so frequently cited for the broad proposition that the status of an Indian tribe is a matter for the political departments, is in fact a noteworthy example of the limited and precise impact of a political question. The Cherokees brought an original suit in this Court to enjoin Georgia’s assertion of jurisdiction over Cherokee territory and abolition of Cherokee government and laws. Unquestionably the case lay at the vortex of most fiery political embroilment. See 1 Warren, The Supreme Court in United States History (Rev. ed.), 729-779. But in spite of some broader language in separate opinions, all that the Court held was that it possessed no original jurisdiction over the suit: for the Cherokees could in no view be considered either a State of this Union or a “foreign state.” Chief Justice Marshall treated the question as one of de novo interpretation of words in the Constitution. The Chief Justice did say that “The acts of our government plainly recognize the Cherokee nation *216as a state, and the courts are bound by those acts,” but here he referred to their existence “as a state, as a distinct political society, separated from others . . . .” From there he went to “A question of much more difficulty .... Do the Cherokees constitute a foreign state in the sense of the constitution?” Id., at 16. Thus, while the Court referred to “the political” for the decision whether the tribe was an entity, a separate polity, it held that whether being an entity the tribe had such status as to be entitled to sue originally was a judicially soluble issue: criteria were discoverable in relevant phrases of the Constitution and in the common understanding of the times. As to this issue, the Court was not hampered by problems of the management of unusual evidence or of possible interference with a congressional program. Moreover, Chief Justice Marshall’s dictum that “It savours too much of the exercise of political power to be within the proper province of the judicial department,” id., at 20, was not addressed to the issue of the Cherokees’ status to sue, but rather to the breadth of the claim asserted and the impropriety of the relief sought. Compare Georgia v. Stanton, 6 Wall. 50, 77. The Chief Justice made clear that if the issue of the Cherokees’ rights arose in a customary legal context, “a proper case with proper parties,” it would be justiciable. Thus, when the same dispute produced a case properly brought, in which the right asserted was one of protection under federal treaties and laws from conflicting state law, and the relief sought was the voiding of a conviction under that state law, the Court did void the conviction. Worcester v. Georgia, 6 Pet. 515. There, the fact that the tribe was a separate polity served as a datum contributing to the result, and despite the consequences in a heated federal-state controversy and the opposition of the other branches of the National Government, the judicial power acted to reverse the State Supreme Court. An example of similar isolation of a political question in the decision of a case is Luther v. Borden, 7 How. 1, see infra.

44

7 How., at 29. And see 11 The Writings and Speeches of Daniel Webster 217 (1903).

45

See Mowry, The Dorr War (1901), and its exhaustive bibliography. And for an account of circumstances surrounding the deei-cion here, see 2 Warren, The Supreme Court in United States History (Rev. ed.), 185-195.

Dorr himself, head of one of the two groups and held in a Rhode Island jail under a conviction for treason, had earlier sought a decision from the Supreme Court that his was the lawful government. His application for original habeas corpus in the Supreme Court was *219denied because the federal courts then lacked authority to issue habeas for a prisoner held under a state court sentence. Ex parte Dorr, 3 How. 103.

46

7 How., at 39.

47

Id., at 39, 40.

48

Even though the Court wrote of unrestrained legislative and executive authority under this Guaranty, thus making its enforcement a political question, the Court plainly implied that the political question barrier was no absolute: “Unquestionably a military government, established as the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it.” 7 How., at 45. Of course, it does not necessarily follow that if Congress did not act, the Court would. For while the judiciary might be able to decide the limits of the meaning of “republican form,” and thus the factor of lack of criteria might fall away, there would remain other possible barriers to decision because of primary commitment to another branch, which would have to be considered in the particular fact setting presented.

That was not the only occasion on which this Court indicated that lack of criteria does not obliterate the Guaranty’s extreme limits: “The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended.

“The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it *223is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution.” Minor v. Happersett, 21 Wall. 162, 175-176. There, the question was whether a government republican in form could deny the vote to women.

In re Duncan, 139 U. S. 449, upheld a murder conviction against a claim that the relevant codes had been invalidly enacted. The Court there said:

“By the Constitution, a republican form of government is guaranteed to every State in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves; but, while the people are thus the source of political power, their governments, National and State, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities.” 139 U. S., at 461. But the Court did not find any of these fundamental principles violated.

49

But cf. Hawke v. Smith (No. 1), 253 U. S. 221; National Prohibition Cases, 253 U. S. 350.

50

6 Wall., at 65, 66.

51

The First Reconstruction Act opened: “Whereas no legal State governments . . . now exists [sic] in the rebel States of . . . Georgia [and] Mississippi . . . ; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established: . . .” 14 Stat. 428. And see 15 Stat. 2, 14.

52

In Mississippi v. Johnson, 4 Wall. 475, the State sought to enjoin the President from executing the Acts, alleging that his role was purely ministerial. The Court held that the duties were in no sense ministerial, and that although the State sought to compel inaction rather than action, the absolute lack of precedent for any such distinction left the case one in which “general principles . . . forbid judicial interference with the exercise of Executive discretion.” 4 Wall., at 499. See also Mississippi v. Stanton, 154 U. S. 554; and see 2 Warren, The Supreme Court in United States History (Rev. ed.), 463.

For another instance of congressional action challenged as transgressing the Guaranty Clause, see The Collector v. Day, 11 Wall. 113, 125-126, overruled, Graves v. O’Keefe, 306 U. S. 466.

53

On the other hand, the implication of the Guaranty Clause in a case concerning congressional action does not always preclude judicial action. It has been held that the clause gives Congress no power to impose restrictions upon a State’s admission which would undercut the constitutional mandate that the States be on an equal footing. Coyle v. Smith, 221 U. S. 559. And in Texas v. White, 7 Wall. 700, although Congress had determined that the State’s government was not republican in form, the State’s standing to bring an original action in this Court was sustained.

54

See, infra, p. 235, considering Kidd v. McCanless, 352 U. S. 920.

55

Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 183 (Field, J., dissenting).

56

Gomillion v. Lightfoot, 270 F. 2d 594, relying upon, inter alia, Hunter v. Pittsburgh, 207 U. S. 161.

57

The Court’s opinion was joined by Mr. Justice Douglas, noting his adherence to the dissents in Colegrove and South v. Peters, supra; and the judgment was concurred in by Mr. Justice Whittaker, who wrote that the decision should rest on the Equal Protection Clause rather than on the Fifteenth Amendment, since there had been not solely a denial of the vote (if there had been that at all) but also a “fencing out” of a racial group.

58

No holding to the contrary is to be found in Cave v. Newell, 246 U. S. 650, dismissing a writ of error to the Supreme Court of Missouri, 272 Mo. 653, 199 S. W. 1014; or in Snowden v. Hughes, 321 U. S. 1.

59

The ground of Mr. Justice Rutledge’s vote to affirm is further explained in Ms footnote 3, 328 U. S., at 566: “ ‘The power of a court of equity to act is a discretionary one. . . . Where a federal court of equity is asked to interfere with the enforcement of state laws, it should do so only “to prevent irreparable injury which is clear and *234imminent.” ’ American Federation of Labor v. Watson, 327 U. S. 582, 593 and cases cited.”

No constitutional questions, including the question whether voters have a judicially enforceable constitutional right to vote at elections of congressmen from districts of equal population, were decided in Cole-grove. Six of the participating Justices reached the questions but divided three to three on their merits. Mr. Justice Rutledge believed that it was not necessary to decide them. He said: “There is [an alternative to constitutional decision] in this case. And I think the gravity of the constitutional questions raised so great, together with the possibilities for collision [with the political departments of the Government], that the admonition [against avoidable constitutional decision] is appropriate to be followed here. Other reasons support this view, including the fact that, in my opinion, the basic ruling and less important ones in Smiley v. Holm, supra, would otherwise be brought into question.” 328 U. S., at 564-565. He also joined with his brethren who shared his view that the issues were justiciable in considering that Wood v. Broom, 287 U. S. 1, decided no constitutional questions but “the Court disposed of the cause on the ground that the 1929 Reapportionment Act, 46 Stat. 21, did not carry forward the requirements of the 1911 Act, 37 Stat. 13, and declined to decide whether there was equity in the bill.” 328 U. S., at 565; see also, id., at 573. We agree with this view of Wood v. Broom.

60

See also Buford v. State Board of Elections, 206 Tenn. 480, 334 S. W. 2d 726; State ex rel. Sanborn v. Davidson County Board of Election Comm’rs, No. 36,391 Tenn. Sup. Ct., Oct. 29, 1954 (unreported); 8 Vand. L. Rev. 501 (1955).

Mr. Justice Douglas,

concurring.

While I join the opinion of the Court and, like the Court, do not reach the merits, a word of explanation is necessary.1 I put to one side the problems of “politi*242cal” questions involving the distribution of power between this Court, the Congress, and the Chief Executive. We have here a phase of the recurring problem of the relation of the federal courts to state agencies. More particularly, the question is the extent to which a State may weight one person’s vote more heavily than it does another’s.

So far as voting rights are concerned, there are large gaps in the Constitution. Yet the right to vote is inherent in the republican form of government envisaged by Article IV, Section 4 of the Constitution. The House-and now the Senate — are chosen by the people. The time, manner, and place of elections of Senators and Representatives are left to the States (Article I, Section 4, Clause 1; Amendment XVII) subject to the regulatory power of Congress. A “republican form” of government is guaranteed each State by Article IV, Section 4, and each is likewise promised protection against invasion.2 Ibid. *243That the States may specify the qualifications for voters is implicit in Article I, Section 2, Clause 1, which provides that the House of Representatives shall be chosen by the *244people and that “the Electors (voters) in each State shall have the Qualifications requisite for Electors (voters) of the most numerous Branch of the State Legislature.” The same provision, contained in the Seventeenth Amendment, governs the election of Senators. Within limits those qualifications may be fixed by state law. See Lassiter v. Northampton Election Board, 360 U. S. 45, 50-51. Yet, as stated in Ex parte Yarbrough, 110 U. S. 651, 663-664, those who vote for members of Congress do not “owe their right to vote to the State law in any sense which makes the exercise of the right to depend exclusively on the law of the State.” The power of Congress to prescribe the qualifications for voters and thus override state law is not in issue here. It is, however, clear that by reason of the commands of the Constitution there are several qualifications that a State may not require.

Race, color, or previous condition of servitude is an impermissible standard by reason of the Fifteenth Amendment, and that alone is sufficient to explain Gomillion v. Lightfoot, 364 U. S. 339. See Taper, Gomillion versus Lightfoot (1962), pp. 12-17.

Sex is another impermissible standard by reason of the Nineteenth Amendment.

There is a third barrier to a State’s freedom in prescribing qualifications of voters and that is the Equal Protection Clause of the Fourteenth Amendment, the provision invoked here. And so the question is, may a State weight the vote of one county or one district more heavily than it weights the vote in another?

The traditional test under the Equal Protection Clause has been whether a State has made “an invidious discrimination,” as it does when it selects “a particular race or nationality for oppressive treatment.” See Skinner v. Oklahoma, 316 U. S. 535, 541. Universal equality is not *245the test; there is room for weighting. As we stated in Williamson v. Lee Optical Co., 348 U. S. 483, 489, “The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.”

I agree with my Brother Clark that if the allegations in the complaint can be sustained a case for relief is established. We are told that a single vote in Moore County, Tennessee, is worth 19 votes in Hamilton County, that one vote in Stewart or in Chester County is worth nearly eight times a single vote in Shelby or Knox County. The opportunity to prove that an “invidious discrimination” exists should therefore be given the appellants.

It is said that any decision in cases of this kind is beyond the competence of courts. Some make the same point as regards the problem of equal protection in cases involving racial segregation. Yet the legality of claims and conduct is a traditional subject for judicial determination. Adjudication is often perplexing and complicated. An example of the extreme complexity of the task can be seen in a decree apportioning water among the several States. Nebraska v. Wyoming, 325 U. S. 589, 665. The constitutional guide is often vague, as the decisions under the Due Process and Commerce Clauses show. The problem under the Equal Protection Clause is no more intricate. See Lewis, Legislative Apportionment and the Federal Courts, 71 Harv. L. Rev. 1057, 1083-1084.

There are, of course, some questions beyond judicial competence. Where the performance of a “duty” is left to the discretion and good judgment of an executive officer, the judiciary will not compel the exercise of his discretion one way or the other (Kentucky v. Dennison, 24 How. 66, 109), for to do so would be to take over the office. Cf. Federal Communications Comm’n v. Broadcasting Co., 309 U. S. 134, 145.

*246Where the Constitution assigns a particular function wholly and indivisibly3 to another department, the federal judiciary does not intervene. Oetjen v. Central Leather Co., 246 U. S. 297, 302. None of those cases is relevant here.

*247There is no doubt that the federal courts have jurisdiction of controversies concerning voting rights. The Civil Rights Act gives them authority to redress the deprivation “under color of any State law” of any “right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens . . . .” 28 U. S. C. § 1343 (3). And 28 U. S. C. § 1343 (4) gives the federal courts authority to award damages or issue an injunction to redress the violation of “any Act of Congress providing for the protection of civil rights, including the right to vote.” (Italics added.) The element of state action covers a wide range. For as stated in United States v. Classic, 313 U. S. 299, 326:

“Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of state law.” And see Monroe v. Pape, 365 U. S. 167.

The right to vote in both federal and state elections was protected by the judiciary long before that right received the explicit protection it is now accorded by § 1343 (4). Discrimination against a voter on account of race has been penalized (Ex parte Yarbrough, 110 U. S. 651) or struck down. Nixon v. Herndon, 273 U. S. 536; Smith v. Allwright, 321 U. S. 649; Terry v. Adams, 345 U. S. 461. Fraudulent acts that dilute the votes of some *248have long been held to be within judicial cognizance. Ex parte Siebold, 100 U. S. 371. The “right to have one’s vote counted” whatever his race or nationality or creed was held in United States v. Mosley, 238 U. S. 383, 386, to be “as open to protection by Congress as the right to put a ballot in a box.” See also United States v. Classic, supra, 324-325; United States v. Saylor, 322 U. S. 385.

Chief Justice Holt stated in Ashby v. White, 2 Ld. Raym. 938, 956 (a suit in which damages were awarded against election officials for not accepting the plaintiff’s vote, 3 Ld. Raym. 320) that:

“To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation.”

The same prophylactic effect will be produced here, as entrenched political regimes make other relief as illusory in this case as a petition to Parliament in Ashby v. White would have been.4

*249Intrusion of the Federal Government into the election machinery of the States has taken numerous forms — investigations (Hannah v. Larche, 363 U. S. 420); criminal proceedings (Ex parte Siebold, supra; Ex parte Yarbrough, supra; United States v. Mosley, supra; United States v. Classic, supra); collection of penalties (Smith v. Allwright, supra); suits for declaratory relief and for an injunction (Terry v. Adams, supra); suits by the United States under the Civil Rights Act to enjoin discriminatory practices. United States v. Raines, 362 U. S. 17.

As stated by Judge McLaughlin in Dyer v. Kazuhisa Abe, 138 F. Supp. 220, 236 (an apportionment case in Hawaii which was reversed and dismissed as moot, 256 F. 2d 728):

“The whole thrust of today’s legal climate is to end unconstitutional discrimination. It is ludicrous to preclude judicial relief when a mainspring of representative government is impaired. Legislators have no immunity from the Constitution. The legislatures of our land should be made as responsive to the Constitution of the United States as are the citizens who elect the legislators.”

With the exceptions of Colegrove v. Green, 328 U. S. 549; MacDougall v. Green, 335 U. S. 281; South v. Peters, 339 U. S. 276, and the decisions they spawned, the Court has never thought that protection of voting rights *250was beyond judicial cognizance. Today’s treatment of those cases removes the only impediment to judicial cognizance of the claims stated in the present complaint.

The justiciability of the present claims being established, any relief accorded can be fashioned in the light of well-known principles of equity.5

1

I feel strongly that many of the cases cited by the Court and involving so-called “political” questions were wrongly decided.

In joining the opinion, I do not approve those decisions but only construe the Court’s opinion in this case as stating an accurate historical account of what the prior cases have held.

2

The statements in Luther v. Borden, 7 How. 1, 42, that this guaranty is enforceable only by Congress or the Chief Executive is not maintainable. Of course the Chief Executive, not the Court, determines how a State will be protected against invasion. Of course each House of Congress, not the Court, is “the Judge of the Elections, Returns, and Qualifications of its own Members.” Article I, Section 6, Clause 1. But the abdication of all judicial functions respecting voting rights (7 How., at 41), however justified by the peculiarities of the charter form of government in Rhode Island at the time of Dorr’s Rebellion, states no general principle. It indeed is contrary to the cases discussed in the body of this opinion — the modern decisions of the Court that give the full panoply of judicial protection to voting rights. Today we would not say with Chief Justice Taney that it is no part of the judicial function to protect the right to vote of those “to whom it is denied by the written and established constitution and laws of the State.” Ibid.

Moreover, the Court’s refusal to examine the legality of the regime of martial law which had been laid upon Rhode Island (id., at 45-46) is indefensible, as Mr. Justice Woodbury maintained in his dissent. Id., at 59 et seq. Today we would ask with him: “. . . who *243could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without-.any express constitutional license to that effect, in any emergency?” Id., at 67.

Justice Woodbury went on to say:

“It would be alarming enough to sanction here an unlimited power, exercised either by legislatures, or the executive, or courts, when all our governments are themselves governments of limitations and checks, and of fixed and known laws, and the people a race above all others jealous of encroachments by those in power. And it is far better that those persons should be without the protection of the ordinary laws of the land who disregard them in an emergency, and should look to a grateful country for indemnity and pardon, than to allow, beforehand, the whole frame of jurisprudence to be overturned, and every thing placed at the mercy of the bayonet.

“No tribunal or department in our system of governments ever can be lawfully authorized to dispense with the laws, like some of the tyrannical Stuarts, or to repeal, or abolish, or suspend the whole body of them; or, in other words, appoint an unrestrained military dictator at the head of armed men.

“Whatever stretches of such power may be ventured on in great crises, they cannot be upheld by the laws, as they prostrate the laws and ride triumphant over and beyond them, however the Assembly of Rhode Island, under the exigency, may have hastily supposed that such a measure in this instance was constitutional. It is but a branch of the omnipotence claimed by Parliament to pass bills of attainder, belonging to the same dangerous and arbitrary family with martial law.” Id., at 69-70.

What he wrote was later to become the tradition, as expressed by Chief Justice Hughes in Sterling v. Constantin, 287 U. S. 378, 401: “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”

3

The category of the “political” question is, in my view, narrower than the decided cases indicate. “Even the English courts have held that a resolution of one House of Parliament does not change the law (Stockdale v. Hansard, (1839), 9 A. & E. 1; and Bowles v. Bank of England (No. 2) [1913] 1 Ch. 57), and these decisions imply that the House of Commons acting alone does not constitute the 'Parliament’ recognised by the English courts.” 103 Sol. Jour. 995, 996. The Court in Bowles v. Bank of England, [1913] 1 Ch. 57, 84-85, stated: “By the statute 1. W. & M., usually known as the Bill of Rights, it was finally settled that there could be no taxation in this country except under authority of an Act of Parliament. The Bill of Rights still remains unrepealed, and no practice or custom, however prolonged, or however acquiesced in on the part of the subject, can be relied on by the Crown as justifying any infringement of its provisions. It follows that, with regard to the powers of the Crown to levy taxation, no resolution, either of the Committee for Ways and Means or of the House itself, has any legal effect whatever. Such resolutions are necessitated by a parliamentary procedure adopted with a view to the protection of the subject against the hasty imposition of taxes, and it would be strange to find them relied on as justifying the Crown in levying a tax before such tax is actually imposed by Act of Parliament.”

In The Pocket Veto Case, 279 U. S. 655, the Court undertook a review of the veto provisions of the Constitution and concluded that the measure in litigation had not become a law. Cf. Coleman v. Miller, 307 U. S. 433.

Georgia v. Stanton, 6 Wall. 50, involved the application of the Reconstruction Acts to Georgia — laws which destroyed by force the internal regime of that State. Yet the Court refused to take jurisdiction. That question was no more “political” than a host of others we have entertained. See, e. g., Pennsylvania v. West Virginia, 262 U. S. 553; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579; Alabama v. Texas, 347 U. S. 272.

*247Today would this Court hold nonjusticiable or “political” a suit to enjoin a Governor who, like Fidel Castro, takes everything into his own hands and suspends all election laws?

Georgia v. Stanton, supra, expresses a philosophy at war with Ex parte Milligan, 4 Wall. 2, and Duncan v. Kahanamoku, 327 U. S. 304. The dominance of the civilian authority has been expressed from the beginning. See Wise v. Withers, 3 Cranch 331, 337; Sterling v. Constantin, supra, note 2.

4

We are told by the National Institute of Municipal Law Officers in an amicus brief:

“Regardless of the fact that in the last two decades the United States has become a predominantly urban country where well over two-thirds of the population now lives in cities or suburbs, political representation in the majority of state legislatures is 50 or more years behind the times. Apportionments made when the greater part of the population was located in rural communities are still determining and undermining our elections.

"As a consequence, the municipality of 1960 is forced to function in a horse and buggy environment where there is little political recognition of the heavy demands of an urban population. These demands will become even greater by 1970 when some 150 million people will be living in urban areas.

“The National Institute of Municipal Law Officers has for many years recognized the wide-spread complaint that by far the greatest *249preponderance of state representatives and senators are from rural areas which, in the main, fail to become vitally interested in the increasing difficulties now facing urban administrators.

“Since World War II, the explosion in city and suburban population has created intense local problems in education, transportation, and housing. Adequate handling of these problems has not been possible to a large extent, due chiefly to the political weakness of municipalities. This situation is directly attributable to considerable under-representation of cities in the legislatures of most states.” Amicus brief, pp. 2-3.

5

The recent ruling by the Iowa Supreme Court that a legislature, though elected under an unfair apportionment scheme, is nonetheless a legislature empowered to act (Cedar Rapids v. Cox, 252 Iowa 948, 964, 108 N. W. 2d 253, 262-263; cf. Kidd v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40) is plainly correct.

There need be no fear of a more disastrous collision between federal and state agencies here than where a federal court enjoins gerrymandering based on racial lines. See Gomillion v. Lightfoot, supra.

The District Court need not undertake a complete reapportionment. It might possibly achieve the goal of substantial equality merely by directing respondent to eliminate the egregious injustices. Or its conclusion that reapportionment should be made may in itself stimulate legislative action. That was the result in Asbury Park Press v. Woolley, 33 N. J. 1, 161 A. 2d 705, where the state court ruled it had jurisdiction:

“If by reason of passage of time and changing conditions the reapportionment statute no longer serves its original purpose of securing to the voter the full constitutional value of his franchise, and the legislative branch fails to take appropriate restorative action, the doors of the courts must be open to him. The law-making body cannot by inaction alter the constitutional system under which it has its own existence.” 33 N. J., at 14, 161 A. 2d, at 711. The court withheld its decision on the merits in order that the legislature might have an opportunity to consider adoption of a reapportionment act. For the sequel see Application of Lamb, 67 N. J. Super. 39, 46-47, 169 A. 2d 822, 825-826.

Reapportionment was also the result in Magraw v. Donovan, 159 F. Supp. 901, where a federal three-judge District Court took jurisdiction, saying, 163 F. Supp. 184, 187:

“Here it is the unmistakable duty of the State Legislature to reapportion itself periodically in accordance with recent population changes. . . . Early in January 1959 the 61st Session of the Minnesota Legislature will convene, all of the members of which will be newly elected on November 4th of this year. The facts which have *251been presented to us will be available to them. It is not to be presumed that the Legislature will refuse to take such action as is necessary to comply with its duty under the State Constitution. We defer decision on all the issues presented (including that of the power of this Court to grant relief), in order to afford the Legislature full opportunity to ‘heed the constitutional mandate to redistrict.’ ”

See 177 F. Supp. 803, where the case was dismissed as moot, the State Legislature having acted.

*251Mr. Justice Clark,

concurring.

One emerging from the rash of opinions with their accompanying clashing of views may well find himself suffering a mental blindness. The Court holds that the appellants have alleged a cause of action. However, it refuses to award relief here — although the facts are undisputed — and fails to give the District Court any guidance whatever. One dissenting opinion, bursting with words that go through so much and conclude with so little, contemns the majority action as “a massive repudiation of the experience of our whole past.” Another describes the complaint as merely asserting conclusory allegations that Tennessee’s apportionment is “incorrect,” “arbitrary,” “obsolete,” and “unconstitutional.” I believe it can be shown that this case is distinguishable from earlier cases dealing with the distribution of political power by a State, that a patent violation of the Equal-Protection Clause of the United States Constitution has been shown, and that an appropriate remedy may be formulated.

I.

I take the law of the case from MacDougall v. Green, 335 U. S. 281 (1948), which involved an attack under the Equal Protection Clause upon an Illinois election statute. The Court decided that case on its merits without hindrance from the “political question” doctrine. Although the statute under attack was upheld, it is clear *252that the Court based its decision upon the determination that the statute represented a rational state policy. It stated:

“It would be strange indeed, and doctrinaire, for this Court, applying such broad constitutional concepts as due process and equal protection of the laws, to deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.” Id., at 284. (Emphasis supplied.)

The other cases upon which my Brethren dwell are all distinguishable or inapposite. The widely heralded case of Colegrove v. Green, 328 U. S. 549 (1946), was one not only in which the Court was bobtailed but in which there was no majority opinion. Indeed, even the “political question” point in Mr. Justice Frankfurter's opinion was no more than an alternative ground.1 Moreover, the appellants did not present an equal protection argument.2 While it has served as a Mother Hubbard to most of the subsequent cases, I feel it was in that respect ill-cast and for all of these reasons put it to one side.3 Like*253wise, I do not consider the Guaranty Clause cases based on Art. I, § 4, of the Constitution, because it is not invoked here and it involves different criteria, as the Court’s opinion indicates. Cases resting on various other considerations not present here, such as Radford v. Gary, 352 U. S. 991 (1957) (lack of equity); Kidd v. McCanless, 352 U. S. 920 (1956) (adequate state grounds supporting the state judgment); Anderson v. Jordan, 343 U. S. 912 (1952) (adequate state grounds); Remmey v. Smith, 342 U. S. 916 (1952) (failure to exhaust state procedures), are of course not controlling. Finally, the Georgia county-unit-system cases, such as South v. Peters, 339 U. S. 276 (1950), reflect the viewpoint of MacDougall, i. e., to refrain from intervening where there is some rational policy behind the State’s system.4

II.

The controlling facts cannot be disputed. It appears from the record that 37% of the voters of Tennessee elect 20 of the 33 Senators while 40% of the voters elect 63 of the 99 members of the House. But this might not on its face be an “invidious discrimination,” Williamson v. Lee Optical of Oklahoma, 348 U. S. 483, 489 (1955), for a “statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U. S. 420, 426 (1961).

It is true that the apportionment policy incorporated in Tennessee’s Constitution, i. e., state-wide numerical equality of representation with certain minor qualifications,5 is a rational one. On a county-by-county compari*254son a districting plan based thereon naturally will have disparities in representation due to the qualifications. But this to my mind does not raise constitutional problems, for the overall policy is reasonable. However, the root of the trouble is not in Tennessee’s Constitution, for admittedly its policy has not been followed. The discrimination lies in the action of Tennessee’s Assembly in allocating legislative seats to counties or districts created by it. \ Try as one may, Tennessee’s apportionment just cannot be made to fit the pattern cut by its Constitution. This was the finding of the District Court. The policy of the Constitution referred to by the dissenters, therefore, is of no relevance here. We must examine what the Assembly has done.6 The frequency and magnitude of the inequalities in the present districting admit of no policy whatever. An examination of Table I accompanying this opinion, post, p. 262, conclusively reveals that the apportionment picture in Tennessee is a topsy-turvical of gigantic proportions. This is not to say that some of the disparity cannot be explained, but when the entire table is examined — comparing the voting strength of counties of like population as well as contrasting that of the smaller with the larger counties — it leaves but one conclusion, namely that Tennessee’s apportionment is a crazy quilt without rational basis. At the risk of being accused of picking out a few of the horribles I shall allude to a series of examples that are taken from Table I.

*"~As is admitted, there is a wide disparity of voting strength between the large and small counties. Some *255samples are: Moore County has a total representation of two7 with a population (2,340) of only one-eleventh of Rutherford County (25,316) with the same representation; Decatur County (5,563) has the same representation as Carter (23,303) though the latter has four times the population; likewise, Loudon County (13,264), Houston (3,084), and Anderson County (33,990) have the same representation, i. e., 1.25 each. But it is said that in this illustration all of the under-represented counties contain municipalities of over 10,000 population and they therefore should be included under the “urban” classification, rationalizing this disparity as an attempt to effect a rural-urban political balance. But in so doing one is caught up in the backlash of his own bull whip, for many counties have municipalities with a population exceeding 10,000, yet the same invidious discrimination is present. For example:

County Population Representation

Carter . 23,303 1.10

Maury. 24,556 2.25

Washington CO CO CO O ccT co

Madison .. Cji O rti <N co

*256Likewise, counties with no municipality of over 10,000 suffer a similar discrimination:

Population Representation County

Grundy ... 'cn rf*. o o co CK

Chester ... OS "CO CO J — 1 to o o

Cumberland CO 05 xo o os CO

Crockett .. CO LCO bO b O

13,264 Loudon ... M to Ox

13,577 Fayette ... W cn O

This could not be an effort to attain political balance between rural and urban populations^' Since discrimination is present among counties of like population, the plan is neither consistent nor rational. It discriminates horizontally creating gross disparities between rural areas themselves as well as between urban areas themselves,8 still maintaining the wide vertical disparity already pointed out between rural and urban.

It is also insisted that the representation formula used above (see n. 7) is “patently deficient” because “it eliminates from consideration the relative voting power of the counties that are joined together in a single election district.” This is a strange claim coming from those who rely on the proposition that “the voice of every voter” need not have “approximate equality.” Indeed, representative government, as they say, is not necessarily one of “bare numbers.” The use of floterial districts in our political system is not ordinarily based on the theory that the floterial representative is splintered among the counties of his district per relative population. His function is to represent the whole district. However, I shall meet the charge on its own ground and by use of its “adjusted *257‘total representation’ ” formula show that the present apportionment is loco. For example, compare some “urban” areas of like population, using the Harlan formula:

Representation County Population

2.65 Washington . 36,967

4.87 Madison . 37,245

1.48 Carter . 23,303

2.05 Greene . 23,649

3.81 Maury. 24,556

Coffee . 13,406 Cm CO C3

Hamblen . 14,090 £-» O t“H

And now, using the same formula, compare some so-called “rural” areas of like population:

County Population Representation

Moore . 2,340 1.23

Pickett . 2,565 .22

Stewart . co CO lO O CO r — ¡

Cheatham co CO to N

6,391 Chester . CD CO r-í

6,540 Grundy . 05 CD

8,731 Smith ... ^ O

8,787 Unicoi .. O ^ O

And for counties with similar representation but with gross differences in population, take:

County Population Representation

Sullivan. 55,712 4.07

Maury. 24,556 3.81

Blount. 30,353 2.12

Coffee . 13,406 2.32

These cannot be “distorted effects,” for here the same formula proposed by the dissenters is used and the result is even “a crazier” quilt.

*258The truth is that — although this case has been here for two years and has had over six hours’ argument (three times the ordinary case) and has been most carefully considered over and over again by us in Conference and individually — no one, not even the State nor the dissenters, has come up with any rational basis for Tennessee’s apportionment statute.

No one — except the dissenters advocating the Harlan “adjusted ‘total representation’ ” formula — contends that mathematical equality among voters is required by the Equal Protection Clause. But certainly there must be some rational design to a State’s districting. The discrimination here does not fit any pattern — -as I have said, it is but a crazy quilt. My Brother Harlan contends that other proposed apportionment plans contain disparities. Instead of chasing those rabbits he should first pause long enough to meet appellants’ proof of discrimination by showing that in fact the present plan follows a rational policy. Not being able to do this, he merely counters with such generalities as “classic legislative judgment,” no “significant discrepancy,” and “de minimis departures.” I submit that even a casual glance at the present apportionment picture shows these conclusions to be entirely fanciful. If present representation has a policy at all, it is to maintain the status quo of invidious discrimination at any cost. Like the District Court, I conclude that appellants have met the burden of showing “Tennessee is guilty of a clear violation of the state constitution and of the [federal] rights of the plaintiffs. . . .”

III.

Although I find the Tennessee apportionment statute offends the Equal Protection Clause, I would not consider intervention by this Court into so delicate a field if there were any other relief available to the people of Tennessee. But the majority of the people of Tennessee have no *259“practical opportunities for exerting their political weight at the polls” to correct the existing “invidious discrimination.” Tennessee has no initiative and referendum. I have searched diligently for other “practical opportunities” present under the law. I find none other than through the federal courts. The majority of the voters have been caught up in a legislative strait jacket. Tennessee has an “informed, civically militant electorate” and “an aroused popular conscience,” but it does not sear “the conscience of the people’s representatives.” This is because the legislative policy has riveted the present seats in the Assembly to their respective constituencies, and by the votes of their incumbents a reapportionment of any kind is prevented. The people have been rebuffed at the hands of the Assembly; they have tried the constitutional convention route, but since the call must originate in the Assembly it, too, has been fruitless. They have tried Tennessee courts with the same result,9 and Governors have fought the tide only to flounder. It is said that there is recourse in Congress and perhaps that may be, but from a practical standpoint this is without substance. To date Congress has never undertaken such a task in any State. We therefore must conclude that the people of Tennessee are stymied and without judicial intervention will be saddled with the present discrimination in the affairs of their state government.

IV.

Finally, we must consider if there are any appropriate modes of effective judicial relief. The federal courts are of course not forums for political debate, nor should they *260resolve themselves into state constitutional conventions or legislative assemblies. Nor should their jurisdiction be exercised in the hope that such a declaration as is made today may have the direct effect of bringing on legislative action and relieving the courts of the problem of fashioning relief. To my mind this would be nothing less than blackjacking the Assembly into reapportioning the State. If judicial competence were lacking to fashion an effective decree, I would dismiss this appeal. However, like the Solicitor General of the United States, I see no such difficulty in the position of this case. One plan might be to start with the existing assembly districts, consolidate some of them, and award the seats thus released to those counties suffering the most egregious discrimination. Other possibilities are present and might be more effective, But the plan here suggested would at least release the strangle hold now on the Assembly and permit it to redistrict itself.

In this regard the appellants have proposed a plan based on the rationale of state-wide equal representation. Not believing that numerical equality of representation throughout a State is constitutionally required, I would not apply such a standard albeit a permissive one. Nevertheless, the dissenters attack it by the application of the Harlan “adjusted ‘total representation’ ” formula. The result is that some isolated inequalities are shown, but this in itself does not make the proposed plan irrational or place it in the “crazy quilt” category. Such inequalities, as the dissenters point out in attempting to support the present apportionment as rational, are explainable. Moreover, there is no requirement that any plan have mathematical exactness in its application. Only where, as here, the total picture reveals incom-mensurables of both magnitude and frequency can it be said that there is present an invidious discrimination.

*261In view of the detailed study that the Court has given this problem, it is unfortunate that a decision is not reached on the merits. The majority appears to hold, at least sub silentio, that an invidious discrimination is present, but it remands to the three-judge court for it to make what is certain to be that formal determination. It is true that Tennessee has not filed a formal answer. However, it has filed - voluminous papers and made extended arguments supporting its position. At no time has it been able to contradict the appellants’ factual claims; it has offered no rational explanation for the present apportionment; indeed, it has indicated that there are none known to it. As I have emphasized, the case proceeded to the point before the three-judge court that it was able to find an invidious discrimination factually present, and the State has not contested that holding here. In view of all this background I doubt if anything more can be offered or will be gained by the State on remand, other than time. Nevertheless, not being able to muster a court to dispose of the case on the merits, I concur in the opinion of the majority and acquiesce in the decision to remand. However, in fairness I do think that Tennessee is entitled to have my idea of what it faces on the record before us and the trial court some light as to how it might proceed.

As John Rutledge (later Chief Justice) said 175 years ago in the course of the Constitutional Convention, a chief function of the Court is to secure the national rights.10 Its decision today supports the proposition for which our forebears fought and many died, namely, that to be fully conformable to the principle of right, the form of government must be representative.11 That is the keystone upon which our government was founded *262and lacking which no republic can survive. It is well for this Court to practice self-restraint and discipline in constitutional adjudication, but never in its history have those principles received sanction where the national rights of so many have been so clearly infringed for so long a time. National respect for the courts is more enhanced through the forthright enforcement of those rights rather than by rendering them nugatory through the interposition of subterfuges. In my view the ultimate decision today is in the greatest tradition of this Court.

TABLE I.

County 1950 voting population Present total representation using J. Clark's formula Present total representation using J. Harlan's formula Proposed total representation (appellants' plan), using J. Harlan's formula

Van Burén. 2,039 .63 .23 ,ii

Moore . 2,340 2.00 1.23 .18

Pickett. 2,565 .70 .22 .24

Sequatchie . 2,904 .63 .33 .19

Meigs. 3,039 .93 .48 .17

Houston. 3,084 1.25 .46 .24

Trousdale . 3,351 1.33 .43 .12

Lewis. 3,413 1.25 .39 .25

Perry. 3,711 1.50 .71 .40

Bledsoe . 4,198 .63 .49 .24

Clay . 4,528 .70 .40 .42

Union 4,600 .76 .37 .45

Hancock . 4,710 .93 .62 .49

Stewart . 5,238 1.75 1.60 .41

Cheatham. 5,263 1.33 .72 .20

Cannon . 5,341 2.00 1.43 .52

Decatur . 5,563 1.10 .79 .52

Lake . 6,252 2.00 1.44 .41

Chester . 6,391 2.00 1.36 .19

Grundy . 6,540 .95 .69 .43

Humphreys. 6,588 1.25 1.39 .72

Johnson. 6,649 1.10 .42 .43

*263County 1950 voting population Present total representation using J. Clark’s formula Present total representation using J. Harlan’s formula Proposed total representation (appellants’ plan), using J. Harlan’s formula

Jackson. 6,719 1.50 1.43 .63

DeKalb . 6,984 2.00 1.56 .68

Benton . 7,023 1.10 1.01 .66

Fentress . 7,057 .70 .62 .64

Grainger . 7,125 .93 .94 .65

Wayne. 7,176 1.25 .69 .76

Polk. 7,330 1.25 .68 .73

Hickman. 7,598 2.00 1.85 .80

Macon. 7,974 1.33 1.01 .61

Morgan. 8,308 .93 .59 .75

Scott . 8,417 .76 .68 .62

Smith. 8,731 2.50 2.04 .67

Unicoi . 8,787 .93 .40 .63

Rhea . 8,937 .93 1.42 .21

White . 9,244 1.43 1.69 .90

Overton ..'. 9,474 1.70 1.83 .89

Hardin. 9,577 1.60 1.61 .93

Cumberland . 9,593 .63 1.10 .87

Crockett . 9,676 2.00 1.66 .63

Henderson . 10,199 1.50 .78 .96

Marion . 10,998 1.75 1.73 .72

Marshall . 11,288 2.50 2.28 .84

Dickson. 11,294 1.75 2.29 1.23

Jefferson . 11,359 1.10 .87 1.03

MeNairy. 11,601 1.60 1.74 1.13

Cocke . 12,572 1.60 1.46 .89

Sevier. 12,793 1.60 1.47 .69

Claiborne . 12,799 1.43 1.61 1.34

Monroe . 12,884 1.75 1.68 1.30

Loudon . 13,264 1.25 .28 .52

Warren . 13,337 1.75 1.89 1.68

Coffee . 13,406 2.00 2.32 1.68

Hardeman . 13,565 1.60 1.86 1.11

Fayette . 13,577 2.50 2.48 1.11

Haywood . 13,934 2.50 2.52 1.69

Williamson . 14,064 2.33 2.96 1.71

*264 County 1950 voting population Present total representation using J. Clark’s formula Present total representation using J. Harlan’s formula Proposed total representation (appellants’ plan), using J. Harlan’s formula

Hamblen. 14,090 1.10 1.07 1.67

Franklin . 14,297 1.75 1.95 1.73

Lauderdale . 14,413 2.50 2.45 1.73

Bedford. 14,732 2.00 1.45 1.74

Lincoln . 15,092 2.50 2.72 1.77

Henry . 15,465 2.83 2.76 1.73

Lawrence . 15,847 2.00 2.22 1.81

Giles . 15,935 2.25 2.54 1.81

Tipton. 15,944 '3.00 1.68 1.13

Robertson. 16,456 2.83 2.62 1.85

Wilson. 16,459 3.00 3.03 1.21

Carroll. 16,472 2.83 2.88 1.82

Hawkins . 16,900 3.00 1.93 1.82

Putnam. 17,071 1.70 2.50 1.86

Campbell . 17,477 .76 1.40 1.94

Roane . 17,639 1.75 1.26 1.30

Weakley . 18,007 2.33 2.63 1.85

Bradley. 18,273 1.25 1.67 1.92

McMinn . 18,347 1.75 1.97 1.92

Obion. 18,434 2.00 2.30 1.94

Dyer . 20,062 2.00 2.36 2.32

Sumner . 20,143 2.33 3.56 2.54

Carter . 23,303 1.10 1.48 2.55

Greene. 23,649 1.93 2.05 2.68

Maury. 24,556 2.25 3.81 2.85

Rutherford. 25,316 2.00 3.02 2.39

Montgomery. 26,284 3.00 3.73 3.06

Gibson. 29,832 5.00 5.00 2.86

Blount. 30,353 1.60 2.12 2.19

Anderson. 33,990 1.25 1.30 3.62

Washington . 36,967 1.93 2.65 3.45

Madison . 37,245 3.50 4.87 3.69

Sullivan. 55,712 3.00 4.07 5.57

Hamilton. 131,971 6.00 6.00 15.09

Knox . 140,559 7.25 8.96 15.21

Davidson . 211,930 12.50 12.93 21.57

Shelby. 312,345 15.50 16.85 31.59

1

The opinion stated at 551 that the Court “could also dispose of this case on the authority of Wood v. Broom [287 U. S. 1 (1932)].” Wood v. Broom involved only the interpretation of a congressional reapportionment Act.

2

Similarly, the Equal Protection Clause was not invoked in Tedesco v. Board of Supervisors, 339 U. S. 940 (1950).

3

I do not read the later case of Colegrove v. Barrett, 330 U. S. 804 (1947), as having rejected the equal protection argument adopted here. That was merely a dismissal of an appeal where the equal protection point was mentioned along with attacks under three other constitutional provisions, two congressional Acts, and three state constitutional provisions.

4

Georgia based its election system on a consistent combination of political units and population, giving six unit votes to the eight most populous counties, four unit votes to the 30 counties next in population, and two unit votes to each of the remaining counties.

5

See Part I of the Appendix to Mr. Justice Harlan's dissent, post, p. 341.

6

It is suggested that the districting is not unconstitutional since it was established by a statute that was constitutional when passed some 60 years ago. But many Assembly Sessions since that time have deliberately refused to change the original act, and in any event “[a] statute [constitutionally] valid when enacted may become invalid by change in the conditions to which it is applied.” Nashville, C. & St. L. R. Co. v. Walters, 294 U. S. 405, 415 (1935).

7

“Total representation” indicates the combined representation in the State Senate (33 members) and the State House of Representatives (99 members) in the Assembly of Tennessee. Assuming a county has one representative, it is credited in this calculation with 1/99. Likewise, if the same county has one-third of a senate seat, it is credited with another 1/99, and thus such a county, in our calculation, would have a “total representation” of two; if a county has one representative and one-sixth of a senate seat, it is credited with 1.5/99, or 1.50. It is this last figure that I use here in an effort to make the comparisons clear. The 1950 rather than the 1960 census of voting population is used to avoid the charge that use of 1960 tabulations might not have allowed sufficient time for the State to act. However, the 1960 picture is even more irrational than the 1950 one.

8

Of course this was not the case in the Georgia county unit system, South v. Peters, supra, or the Illinois initiative plan, MacDougall v. Green, supra, where recognized political units having independent significance were given minimum political weight.

9

It is interesting to note that state judges often rest their decisions on the ground that this Court has precluded adjudication of the federal claim. See, e. g., Scholle v. Secretary of State, 360 Mich. 1, 104 N. W. 2d 63 (1960).

10

I Farrand, The Records of the Federal Convention of 1787, 124.

11

Kant, Perpetual Peace.

1

See Wood v. Broom, 287 U. S. 1; Colegrove v. Green, 328 U. S. 549, rehearing denied, 329 U. S. 825, motion for reargument before the full bench denied, 329 U. S. 828; Cook v. Fortson, 329 U. S. 675, rehearing denied, 329 U. S. 829; Turman v. Duckworth, 329 U. S. 675, rehearing denied, 329 U. S. 829; Colegrove v. Barrett, 330 U. S. 804; MacDougall v. Green, 335 U. S. 281; South v. Peters, 339 U. S. 276; Tedesco v. Board of Supervisors, 339 U. S. 940; Remmey v. Smith, 342 U. S. 916; Cox v. Peters, 342 U. S. 936, rehearing denied, 343 U. S. 921; Anderson v. Jordan, 343 U. S. 912; Kidd v. McCanless, 352 U. S. 920; Radford v. Gary, 352 U. S. 991; Hartsfield v. Sloan, 357 U. S. 916; Matthews v. Handley, 361 U. S. 127; Perry v. Folsom, 144 F. Supp. 874 (D. C. N. D. Ala.); Magraw v. Donovan, 163 F. Supp. 184 (D. C. D. Minn.); cf. Dyer v. Kazuhisa Abe, 138 F. Supp. 220 (D. C. D. Hawaii). And see Keogh v. Neely, 50 F. 2d 685 (C. A. 7th Cir.).

*265MR. Justice Stewart,

concurring.

The separate writings of my dissenting and concurring Brothers stray so far from the subject of today’s decision as to convey, I think, a distressingly inaccurate impression of what the Court decides. For that reason, I think it appropriate, in joining the opinion of the Court, to emphasize in a few words what the opinion does and does not say.

The Court today decides three things and no more: “(a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) . . . that the appellants have standing to challenge the Tennessee apportionment statutes.” Ante, pp. 197-198.

The complaint in this case asserts that Tennessee’s system of apportionment is utterly arbitrary — without any possible justification in rationality. The District Court did not reach the merits of that claim, and this Court quite properly expresses no view on the subject. Contrary to the suggestion of my Brother Harlan, the Court does not say or imply that “state legislatures must be so structured as to reflect with approximate equality the voice of every voter.” Post, p. 332. The Court does not say or imply that there is anything in the Federal Constitution “to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people.” Post, p. 334. And contrary to the suggestion of my Brother Douglas, the Court most assuredly does not decide the question, “may a State weight the vote of one county or one district more heavily than it weights the vote in another?” Ante, p. 244.

In MacDougall v. Green, 335 U. S. 281, the Court held that the Equal Protection Clause does not “deny a State the power to assure a proper diffusion of political initia*266tive as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.” 335 U. S., at 284. In case after case arising under the Equal Protection Clause the Court has said what it said again only last Term — that “the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others.” McGowan v. Maryland, 366 U. S. 420, 425. In case after case arising under that Clause we have also said that “the burden of establishing the unconstitutionality of a statute rests on him who assails it.” Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580, 584.

Today’s decision does not turn its back on these settled precedents. I repeat, the Court today decides only: (1) that the District Court possessed jurisdiction of the subject matter; (2) that the complaint presents a justi-ciable controversy; (3) that the appellants have standing. My Brother Clark has made a convincing prima facie showing that Tennessee’s system of apportionment is in fact utterly arbitrary — without any possible justification in rationality. My Brother Harlan has, with imagination and ingenuity, hypothesized possibly rational bases for Tennessee’s system. But the merits of this case are not before us now. The defendants have not yet had an opportunity to be heard in defense of the State’s system of apportionment; indeed, they have not yet even filed an answer to the complaint. As in other cases, the proper place for the trial is in the trial court, not here.

Mr. Justice Frankfurter,

whom Mr. Justice Harlan joins,

dissenting.

The Court today reverses a uniform course of decision established by a dozen cases, including one by which the very claim now sustained was unanimously rejected *267only five years ago. The impressive body of rulings thus cast aside reflected the equally uniform course of our political history regarding the relationship between population and legislative representation — a wholly different matter from denial of the franchise to individuals because of race, color, religion or sex. Such a massive repudiation of the experience of our whole past in asserting destructively novel judicial power demands a detailed analysis of the role of this Court in our constitutional scheme. Disregard of inherent limits in the effective exercise of the Court’s “judicial Power” not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined. It may well impair the Court’s position as the ultimate organ of “the supreme Law of the Land” in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court’s authority — possessed of neither the purse nor the sword — ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.

A hypothetical claim resting on abstract assumptions is now for the first time made the basis for affording illusory relief for a particular evil even though it foreshadows deeper and more pervasive difficulties in consequence. The claim is hypothetical and the assumptions are abstract because the Court does not vouchsafe the lower courts — state and federal — guidelines for formulating specific, definite, wholly unprecedented remedies for the inevitable litigations that today’s umbrageous disposition is bound to stimulate in connection with politically motivated reapportionments in so many States. In *268such a setting, to promulgate jurisdiction in the abstract is meaningless. It is as devoid of reality as “a brooding omnipresence in the sky,” for it conveys no intimation what relief, if any, a District Court is capable of affording that would not invite legislatures to play ducks and drakes with the judiciary. Eor this Court to direct the District Court to enforce a claim to which the Court has over the years consistently found itself required to deny legal enforcement and at the same time to find it necessary to withhold any guidance to the lower court how to enforce this turnabout, new legal claim, manifests an odd— indeed an esoteric — conception of judicial propriety. One of the Court’s supporting opinions, as elucidated by commentary, unwittingly affords a disheartening preview of the mathematical quagmire (apart from divers judicially inappropriate and elusive determinants) into which this Court today catapults the lower courts of the country without so much as adumbrating the basis for a legal calculus as a means of extrication. Even assuming the indispensable intellectual disinterestedness on the part of judges in such matters, they do not have accepted legal standards or criteria or even reliable analogies to draw upon for making judicial judgments. To charge courts with the task of accommodating the incommensurable factors of policy that underlie these mathematical puzzles is to attribute, however flatteringly, omnicompetence to judges. The Framers of the Constitution persistently rejected a proposal that embodied this assumption and Thomas Jefferson never entertained it.

Recent legislation, creating a district appropriately described as “an atrocity of ingenuity,” is not unique. Considering the gross inequality among legislative electoral units within almost every State, the Court naturally shrinks from asserting that in districting at least substantial equality is a constitutional requirement enforceable *269by courts.* Room continues to be allowed for weighting. This of course implies that geography, economics, urban-rural conflict, and all the other non-legal factors which have throughout our history entered into political dis-tricting are to some extent not to be ruled out in the undefined vista now opened up by review in the federal courts of state reapportionments. To some extent — aye, there’s the rub. In effect, today’s decision empowers the courts of the country to devise what should constitute the proper composition of the legislatures of the fifty States. If state courts should for one reason or another find themselves unable to discharge this task, the duty of doing so is put on the federal courts or on this Court, if State views do not satisfy this Court’s notion of what is proper districting.

We were soothingly told at the bar of this Court that we need not worry about the kind of remedy a court could effectively fashion once the abstract constitutional right to have courts pass on a state-wide system of electoral districting is recognized as a matter of judicial rhetoric, because legislatures would heed the Court’s admonition. This is not only a euphoric hope. It implies a sorry *270confession of judicial impotence in place of a frank acknowledgment that there is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The Framers carefully and with deliberate forethought refused so to enthrone the judiciary. In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives. In any event there is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope.

This is the latest in the series of cases in which the Equal Protection and Due Process Clauses of the Fourteenth Amendment have been invoked in federal courts as restrictions upon the power of the States to allocate electoral weight among the voting populations of their various geographical subdivisions.1 The present action, which *271comes here on appeal from an order of a statutory three-judge District Court dismissing amended complaints seeking declaratory and injunctive relief, challenges the provisions of Tenn. Code Ann., 1955, §§ 3-101 to 3-109, which apportion state representative and senatorial seats among Tennessee’s ninety-five counties.

The original plaintiffs, citizens and qualified voters entitled to vote for members of the Tennessee Legislature in the several counties in which they respectively reside, bring this action in their own behalf and “on behalf of all other voters in the State of Tennessee,” or, as they alternatively assert, “on behalf of all qualified voters of their respective counties, and further, on behalf of all voters of the State of Tennessee who are similarly situated.” The cities of Knoxville and Chattanooga, and the Mayor of Nashville — on his own behalf as a qualified voter and, pursuant to an authorizing resolution by the Nashville City Council, as a representative of all the city’s residents — -were permitted to intervene as parties plaintiff.2 The defendants are executive officials charged with statutory duties in connection with state elections.3

*272The original plaintiffs’ amended complaint avers, in substance, the following.4 The Constitution of the State of Tennessee declares that “elections shall be free and equal,” provides that no qualifications other than age, citizenship and specified residence requirements shall be attached to the right of suffrage, and prohibits denying to any person the suffrage to which he is entitled except upon conviction of an infamous crime. Art. I, § 5; Art. IV, § 1. It requires an enumeration of qualified voters within every term of ten years after 1871 and an apportionment of representatives and senators among the several counties or districts according to the number of qualified voters in each 5 at the time of each decennial *273enumeration. Art. II, §§ 4, 5, 6. Notwithstanding these provisions, the State Legislature has not reapportioned itself since 1901. The Reapportionment Act of that year, Tenn. Acts 1901, c. 122, now Tenn. Code Ann., 1955, §§ 3-101 to 3-109,6 was unconstitutional when enacted, because not preceded by the required enumeration of qualified voters and because it allocated legislative seats arbitrarily, unequally and discriminatorily, as measured by the 1900 federal census. Moreover, irrespective of the question of its validity in 1901, it is asserted that the Act became “unconstitutional and obsolete” in 1911 by virtue of the decennial reapportionment requirement of the Tennessee Constitution. Continuing a “purposeful and systematic plan to discriminate against a geographical class of persons,” recent Tennessee Legislatures have failed, as did their predecessors, to enact reapportionment legislation, although a number of bills providing for reapportionment have been introduced. Because of population shifts since 1901, the apportionment fixed by the Act of that year and still in effect is not proportionate to population, denies to the counties in which the plaintiffs *274live an additional number of representatives to which they are entitled, and renders plaintiffs’ votes “not as effective as the votes of the voters residing in other senatorial and representative districts . . . Plaintiffs “suffer a debasement of their votes by virtue of the incorrect, arbitrary, obsolete and unconstitutional apportionment of the General Assembly . . . ,” and the totality of the malap-portionment’s effect — which permits a minority of about thirty-seven percent of the voting population of the State to control twenty of the thirty-three members of Tennessee’s Senate, and a minority of forty percent of the voting population to control sixty-three of the ninety-nine members of the House — results in “a distortion of the constitutional system” established by the Federal and State Constitutions, prevents the General Assembly “from being a body representative of the people of the State of Tennessee, . . .” and is “contrary to the basic principle of representative government . . . ,” and “contrary to the philosophy of government in the United States and all Anglo-Saxon jurisprudence . . . .”

Exhibits appended to the complaint purport to demonstrate the extent of the inequalities of which plaintiffs complain. Based upon “approximate voting population,” 7 these set forth figures showing that the State *275Senator from Tennessee’s most populous senatorial district represents five and two-tenths times the number of voters represented by the Senator from the least populous district, while the corresponding ratio for most and least populous House districts is more than eighteen to one. The General Assembly thus apportioned has discriminated against the underrepresented counties and in favor of the overrepresented counties in the collection and distribution of various taxes and tax revenues, notably in the distribution of school and highway-improvement funds,8 this discrimination being “made possible and effective” by the Legislature’s failure to reapportion itself. Plaintiffs conclude that election of the State Legislature pursuant to the apportionment fixed by the 1901 Act violates the Tennessee Constitution and deprives them of due process of law and of the equal protection of the laws guaranteed by the Fourteenth Amendment. Their prayer below was for a declaratory judgment striking down the Act, an injunction restraining defendants from any acts necessary to the holding of elections in the districts prescribed by Tenn. Code Ann., 1955, §§ 3-101 to 3-109, until such time as the legislature is reapportioned “according to the *276Constitution of the State of Tennessee,” and an order directing defendants to declare the next primary and general elections for members of the Tennessee Legislature on an at-large basis — the thirty-three senatorial candidates and the ninety-nine representative candidates receiving the highest number of votes to be declared elected.9

Motions to dismiss for want of jurisdiction of the subject matter and for failure to state a claim were made and granted, 179 F. Supp. 824, the District Court relying upon this Court’s series of decisions beginning with Colegrove v. Green, 328 U. S. 549, rehearing denied, 329 U. S. 825, motion for reargument before the full bench denied, 329 U. S. 828. The original and intervening plaintiffs bring the case here on appeal. 364 U. S. 898. In this Court they have altered their request for relief, suggesting a “step-by-step approach.” The first step is a remand to the District Court with directions to vacate the order dismissing the complaint and to enter an order retaining jurisdiction, providing “the necessary spur to legislative action . . . .” If this proves insufficient, appellants will ask the “additional spur” of an injunction prohibiting elections under the 1901 Act, or a declaration of the Act’s unconstitutionality, or both. Finally, all other means failing, the District Court is invited by the plaintiffs, greatly daring, to order an election at large or redistrict the State itself or through a master. The Solicitor General of the United States, who has filed a brief amicus and argued in favor of reversal, asks the Court on this appeal to hold only that the District Court has “jurisdiction” and may properly exercise it to entertain the plaintiffs’ claims on the merits. This would leave to that court after remand the questions of the challenged stat*277ute’s constitutionality and of some undefined, unadum-brated relief in the event a constitutional violation is found. After an argument at the last Term, the case was set down for reargument, 366 U. S. 907, and heard this Term.

I.

In sustaining appellants’ claim, based on the Fourteenth Amendment, that the District Court may entertain this suit, this Court’s uniform course of decision over the years is overruled or disregarded. Explicitly it begins with Colegrove v. Green, supra, decided in 1946, but its roots run deep in the Court’s historic adjudicatory process.

Colegrove held that a federal court should not entertain an action for declaratory and injunctive relief to adjudicate the constitutionality, under the Equal Protection Clause and other federal constitutional and statutory provisions, of a state statute establishing the respective districts for the State’s election of Representatives to the Congress. Two opinions were written by the four Justices who composed the majority of the seven sitting members of the Court. Both opinions joining in the result in Colegrove v. Green agreed that considerations were controlling which dictated denial of jurisdiction though not in the strict sense of want of power. While the two opinions show a divergence of view regarding some of these considerations, there are important points of concurrence. Both opinions demonstrate a predominant concern, first, with avoiding federal judicial involvement in matters traditionally left to legislative policy making ; second, with respect to the difficulty — in view of the nature of the problems of apportionment and its history in this country — of drawing on or devising judicial standards for judgment, as opposed to legislative determinations, of the part which mere numerical equality among voters should play as a criterion for the allocation of *278political power; and, third, with problems of finding appropriate modes of relief — particularly, the problem of resolving the essentially political issue of the relative merits of at-large elections and elections held in districts of unequal population.

The broad applicability of these considerations — summarized in the loose shorthand phrase, “political question” — in cases involving a State’s apportionment of voting power among its numerous localities has led the Court, since 1946, to recognize their controlling effect in a variety of situations. (In all these cases decision was by a full Court.) The “political question” principle as applied in Colegrove has found wide application commensurate with its function as “one of the rules basic to the federal system and this Court’s appropriate place within that structure.” Rescue Army v. Municipal Court, 331 U. S. 549, 570. In Colegrove v. Barrett, 330 U. S. 804, litigants brought suit in a Federal District Court challenging as offensive to the Equal Protection Clause Illinois’ state legislative-apportionment laws. They pointed to state constitutional provisions requiring decennial reapportionment and allocation of seats in proportion to population, alleged a failure to reapportion for more than forty-five years — during which time extensive population shifts had rendered the legislative districts grossly unequal — and sought declaratory and injunctive relief with respect to all elections to be held thereafter. After the complaint was dismissed by the District Court, this Court dismissed an appeal for want of a substantial federal question. A similar District Court decision was affirmed here in Radford v. Gary, 352 U. S. 991. And cf. Remmey v. Smith, 342 U. S. 916. In Tedesco v. Board of Supervisors, 339 U. S. 940, the Court declined to hear, for want of a substantial federal question, the claim that the division of a municipality into voting districts of unequal population for the selection for couneilmen fell *279afoul of the Fourteenth Amendment, and in Cox v. Peters, 342 U. S. 936, rehearing denied, 343 U. S. 921, it found no substantial federal question raised by a state court’s dismissal of a claim for damages for “devaluation” of plaintiff’s vote by application of Georgia’s county-unit system in a primary election for the Democratic gubernatorial candidate. The same Georgia system was subsequently attacked in a complaint for declaratory judgment and an injunction; the federal district judge declined to take the requisite steps for the convening of a statutory three-judge court; and this Court, in Hartsfield v. Sloan, 357 U. S. 916, denied a motion for leave to file a petition for a writ of mandamus to compel the district judge to act. In MacDougall v. Green, 335 U. S. 281, 283, the Court noted that “To assume that political power is a function exclusively of numbers is to disregard the practicalities of government,” and, citing the Colegrove cases, declined to find in “such broad constitutional concepts as due process and equal protection of the laws,” id., at 284, a warrant for federal judicial invalidation of an Illinois statute requiring as a condition for the formation of a new political party the securing of at least two hundred signatures from each of fifty counties. And in South v. Peters, 339 U. S. 276, another suit attacking Georgia’s county-unit law, it affirmed a District Court dismissal, saying -

“Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state’s geographical distribution of electoral strength among its political subdivisions.” Id., at 277.

Of course it is important to recognize particular, relevant diversities among comprehensively similar situations. Appellants seek to distinguish several of this Court’s prior decisions on one or another ground — Colegrove v. *280Green on the ground that federal, not state, legislative apportionment was involved; Remmey v. Smith on the ground that state judicial remedies had not been tried; Radford v. Gary on the ground that Oklahoma has the initiative, whereas Tennessee does not. It would only darken counsel to discuss the relevance and significance of each of these assertedly distinguishing factors here and in the context of this entire line of cases. Suffice it that they do not serve to distinguish Colegrove v. Barrett, supra, which is on all fours with the present case, or to distinguish Kidd v. McCanless, 352 U. S. 920, in which the full Court without dissent, only five years ago, dismissed on authority of Colegrove v. Green and Anderson v. Jordan, 343 U. S. 912, an appeal from the Supreme Court of Tennessee in which a precisely similar attack was made upon the very statute now challenged. If the weight and momentum of an unvarying course of carefully considered decisions are to be respected, appellants' claims are foreclosed not only by precedents governing the exact facts of the present case but are themselves supported by authority the more persuasive in that it gives effect to the Colegrove principle in distinctly varying circumstances in which state arrangements allocating relative degrees of political influence among geographic groups of voters were challenged under the Fourteenth Amendment.

n.

The Colegrove doctrine, in the form in which repeated decisions have settled it, was not an innovation. It represents long judicial thought and experience. From its earliest opinions this Court has consistently recognized a class of controversies which do not lend themselves to judicial standards and judicial remedies. To classify the various instances as “political questions” is rather a form *281of stating this conclusion than revealing of analysis.10 Some of the cases so labelled have no relevance here. But from others emerge unifying considerations that are compelling.

1. The cases concerning war or foreign affairs, for example, are usually explained by the necessity of the country’s speaking with one voice in such matters. While this concern alone undoubtedly accounts for many of the decisions,11 others do not fit the pattern. It would hardly embarrass the conduct of war were this Court to determine, in connection with private transactions between litigants, the date upon which war is to be deemed terminated. But the Court has refused to do so. See, e. g., The Protector, 12 Wall. 700; Brown v. Hiatts, 15 Wall. 177; Adger v. Alston, 15 Wall. 555; Williams v. Bruffy, 96 U. S. 176, 192-193. It does not suffice to explain such cases as Ludecke v. Watkins, 335 U. S. 160 — deferring to political determination the question of the duration of war for purposes of the Presidential power to deport alien enemies — that judicial intrusion would seriously *282impede the President’s power effectively to protect the country’s interests in time of war. Of course, this is true; but the precise issue presented is the duration of the time of war which demands the power. Cf. Martin v. Mott, 12 Wheat. 19; Lamar v. Browne, 92 U. S. 187, 193; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146; Kahn v. Anderson, 255 U. S. 1. And even for the purpose of determining the extent of congressional regulatory power over the tribes and dependent communities of Indians, it is ordinarily for Congress, not the Court, to determine whether or not a particular Indian group retains the characteristics constitutionally requisite to confer the power.12 E. g., United States v. Holliday, 3 Wall. 407; Tiger v. Western Investment Co., 221 U. S. 286; United States v. Sandoval, 231 U. S. 28. A controlling factor in such cases is that, decision respecting these kinds of complex matters of policy being traditionally committed not to courts but to the politicial agencies of government for determination by criteria of political expediency, there exists no standard ascertainable by settled judicial experience or process by /reference to which a political decision affecting the question at issue between the parties can be judged. Where the question arises in the course of a litigation involving primarily the adjudication of other issues between the litigants, the Court accepts as a basis for adjudication the political departments’ decision of it. But where its determination is the sole function to be served by the exercise of the judicial power, the Court will not entertain the action. See Chicago & Southern Air Lines, Inc., v. Waterman S. S. Corp., *283333 U. S. 103. The dominant consideration is “the lack of satisfactory criteria for a judicial determination . . . Mr. Chief Jusice Hughes, for the Court, in Coleman v. Miller, 307 U. S. 433, 454-455. Compare United States v. Rogers, 4 How. 567, 572, with Worcester v. Georgia, 6 Pet. 515.13

This may be, like so many questions of law, a matter of degree. Questions have arisen under the Constitution to which adjudication gives answer although the criteria for decision are less than unwavering bright lines. Often in these cases illumination was found in the federal structures established by, or the underlying presuppositions of, the Constitution. With respect to such questions, the Court has recognized that, concerning a particular power of Congress put in issue, “. . . effective restraints on its exercise must proceed from political rather than from judicial processes.” Wickard v. Filburn, 317 U. S. 111, 120. It is also true that even regarding the duration of war and the status of Indian tribes, referred to above as subjects ordinarily committed exclusively to the non-judicial branches, the Court has suggested that some limitations exist upon the range within which the decisions of those branches will be permitted to go unreviewed. See United States v. Sandoval, supra, at 46; cf. Chastleton Corp. v. Sinclair, 264 U. S. 543. But this is merely to acknowledge that particular circumstances may differ so greatly in degree as to differ thereby in kind, and that, although within a certain range of cases on a continuum, no standard of distinction can be found to tell between them, other cases will fall above or below the range. The doctrine of political questions, like any other, is not to *284be applied beyond the limits of its own logic, with all the quiddities and abstract disharmonies it may manifest. See the disposition of contentions based on logically distorting views of Colegrove v. Green and Hunter v. Pittsburgh, 207 U. S. 161, in Gomillion v. Lightfoot, 364 U. S. 339.

2. The Court has been particularly unwilling to intervene in matters concerning the structure and organization of the political institutions of the States. The abstention from judicial entry into such areas has been greater even than that which marks the Court’s ordinary approach to issues of state power challenged under broad federal guarantees. “We should be very reluctant to decide that we had jurisdiction in such a case, and thus in an action of this nature to supervise and review the political administration of a state government by its own officials and through its own courts. The jurisdiction of this court would only exist in case there had been . . . such a plain and substantial departure from the fundamental principles upon which our government is based that it could with truth and propriety be said that if the judgment were suffered to remain, the party aggrieved would be deprived of his life, liberty or property in violation of the provisions of the Federal Constitution.” Wilson v. North Carolina, 169 U. S. 586, 596. See Taylor and Marshall v. Beckham (No. 1), 178 U. S. 548; Walton v. House of Representatives, 265 U. S. 487; Snowden v. Hughes, 321 U. S. 1. Cf. In re Sawyer, 124 U. S. 200, 220-221.

Where, however; state law has made particular federal questions determinative of relations within the structure of state government, not in .challenge of it, the Court has resolved such narrow, legally defined questions in proper proceedings. See Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135. In such instances there is no conflict between state policy and the exercise of federal judicial *285power. This distinction explains the decisions in Smiley v. Holm, 285 U. S. 355; Koenig v. Flynn, 285 U. S. 375; and Carroll v. Becker, 285 U. S. 380, in which the Court released state constitutional provisions prescribing local lawmaking procedures from misconceived restriction of superior federal requirements. Adjudication of the federal claim involved in those cases was not one demanding the accommodation of conflicting interests for which no readily accessible judicial standards could be found. See McPherson v. Blacker, 146 U. S. 1, in which, in a case coming here on writ of error from the judgment of a state court which had entertained it on the merits, the Court treated as justiciable the claim that a State could not constitutionally select its presidential electors by districts, but held that Art. II, § 1, cl. 2, of the Constitution left the mode of choosing electors in the absolute discretion of the States. Cf. Pope v. Williams, 193 U. S. 621; Breedlove v. Suttles, 302 U. S. 277. To read with literalness the abstracted jurisdictional discussion in the McPherson opinion reveals the danger of conceptions of “justiciability” derived from talk and not from the effective decision in a case. In probing beneath the surface of cases in which the Court has declined to interfere with the actions of political organs of government, of decisive significance is whether in each situation the ultimate decision has been to intervene or not to intervene. Compare the reliance in South v. Peters, 339 U. S. 276, on MacDougall v. Green, 335 U. S. 281, and the “jurisdictional” form of the opinion in Wilson v. North Carolina, 169 U. S. 586, 596, supra.

3. The cases involving Negro disfranchisement are no exception to the principle. >of avoiding federal judicial intervention into matters of state government in the absence of an explicit and clear constitutional imperative. For here the controlling command of Supreme Law is plain and unequivocal. An end of discrimination against *286the Negro was the compelling motive of the Civil War Amendments. The Fifteenth expresses this in terms, and it is no less true of the Equal Protection Clause of the Fourteenth. Slaughter-House Cases, 16 Wall. 36, 67-72; Strauder v. West Virginia, 100 U. S. 303, 306-307; Nixon v. Herndon, 273 U. S. 536, 541. Thus the Court, in cases involving discrimination against the Negro’s right to vote, has recognized not only the action at law for damages,14 but, in appropriate circumstances, the extraordinary remedy of declaratory or injunctive relief.15 Schnell v. Davis, 336 U. S. 933; Terry v. Adams, 345 U. S. 461.16 Injunctions in these cases, it should be noted, would not have restrained state-wide general elections. Compare Giles v. Harris, 189 U. S. 475.

4. The Court has refused to exercise its jurisdiction to pass on “abstract questions of political power, of sovereignty, of government.” Massachusetts v. Mellon, 262 U. S. 447, 485. See Texas v. Interstate Commerce Commission, 258 U. S. 158, 162; New Jersey v. Sargent, 269 U. S. 328, 337. The “political question” doctrine, in this aspect, reflects the policies underlying the requirement of “standing”: that the litigant who would challenge offi*287cial action must claim infringement of an interest particular and personal to himself, as distinguished from a cause of dissatisfaction with the general frame and functioning of government — a complaint that the political institutions are awry. ) See Stearns v. Wood, 236 U. S. 75; Fairchild v. Hughes, 258 U. S. 126; United Public Workers v. Mitchell, 330 U. S. 75, 89-91. What renders cases of this kind non-justiciable is not necessarily the nature of the parties to them, for the Court has resolved other issues between similar parties;17 nor is it the nature of the legal question involved, for the same type of question has been adjudicated when presented in other forms of controversy.18 The crux of the matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those large contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of governments are made and unmade. See Texas v. White, 7 Wall. 700; White v. Hart, 13 Wall. 646; Phillips v. Payne, 92 U. S. 130; Marsh v. Burroughs, 1 Woods 463, 471-472 (Bradley, Circuit Justice); cf. Wilson v. Shaw, 204 U. S. 24; but see Coyle v. Smith, 221 U. S. 559. Thus, where the Cherokee Nation sought by an original motion to restrain the State of Georgia from the enforcement of laws which assimilated Cherokee territory to the State’s counties, abrogated Cherokee law, and abolished Cherokee government, the Court held that such a claim was not judicially cognizable. Cherokee Nation v. Georgia, 5 Pet. 1.19 And in Georgia *288v. Stanton, 6 Wall. 60, the Court dismissed for want of jurisdiction a bill by the State of Georgia seeking to enjoin enforcement of the Reconstruction Acts on the ground that the command by military districts which they established extinguished existing state government and replaced it with a form of government unauthorized by the Constitution: 20

“That these matters, both as stated in the body of the bill; and, in the prayers for relief, call for the judgment of the court upon political questions, and, upon rights, not of persons or property, but of a political character, will hardly be denied. For the rights for the protection of which our authority is invoked, are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a State, with all its constitutional powers and privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in a judicial form, for the judgment of the court.” Id., at 77.21

*2895. The influence of these converging considerations— the caution not to undertake decision where standards meet for judicial judgment are lacking, the reluctance to interfere with matters of state government in the absence of an unquestionable and effectively enforceable mandate, the unwillingness to make courts arbiters of the broad issues of political organization historically committed to other institutions and for whose adjustment the judicial process is ill-adapted — has been decisive of the settled line of cases, reaching back more than a century, which holds that Art. IV, § 4, of the Constitution, guaranteeing to the States “a Republican Form of Government,"22 is not enforceable through the courts. E. g., O’Neill v. Leamer, 239 U. S. 244; Mountain Timber Co. v. Washington, 243 U. S. 219; Cochran v. Board of Education, 281 U. S. 370; Highland Farms Dairy, Inc., v. Agnew, 300 U. S. 608.23 Claims resting on this specific *290guarantee of the Constitution have been held non-justiciable which challenged state distribution of powers between the legislative and judicial branches, Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U. S. 74, state delegation of power to municipalities, Kiernan v. Portland, Oregon, 223 U. S. 151, state adoption of the referendum as a legislative institution, Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 569, and state restriction upon the power of state constitutional amendment, Marshall v. Dye, 231 U. S. 250, 256-257. The subject was fully considered in Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118, in which the Court dismissed for want of jurisdiction a writ of error attacking a state license-tax statute enacted by the initiative, on the claim that this mode of legislation was inconsistent with a Republican Form of Government and violated the Equal Protection Clause and other federal guarantees. After noting “. . . the ruinous destruction of legislative authority in matters purely political which would necessarily be occasioned by giving sanction *291to the doctrine which underlies and would be necessarily involved in sustaining the propositions contended for,” 24 the Court said:

. . [The] essentially political nature [of this claim] is at once made manifest by understanding that the assault which the contention here advanced makes it [sic] not on the tax as a tax, but on the State as a State. It is addressed to the framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power assailed, on the ground that its exertion *292has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the State that it establish its right to exist as a State, republican in form.” Id., at 150-151.

The starting point of the doctrine applied in these cases is, of course, Luther v. Borden, 7 How. 1. The case arose out of the Dorr Rebellion in Rhode Island in 1841-1842. Rhode Island, at the time of the separation from England, had not adopted a new constitution but had continued, in its existence as an independent State, under its original royal Charter, with certain statutory alterations. This frame of government provided no means for amendment of the fundamental law; the right of suffrage was to be prescribed by legislation, which limited it to freeholders. In the 1830’s, largely because of the growth of towns in which there developed a propertied class whose means were not represented by freehold estates, dissatisfaction arose with the suffrage qualifications of the charter government. In addition, population shifts had caused a dated apportionment of seats in the lower house to yield substantial numerical inequality of political influence, even among qualified voters. The towns felt themselves underrepresented, and agitation began for electoral reform. When the charter government failed to respond, popular meetings of those who favored the broader suffrage were held and delegates elected to a convention which met and drafted a state constitution. This constitution provided for universal manhood suffrage (with certain qualifications); and it was to be adopted by vote of the people at elections at which a similarly expansive franchise obtained. This new scheme of government was ratified at the polls and declared effective by the convention, but the government elected and organized under it, with Dorr at its head, never came to power. The *293charter government denied the validity of the convention, the constitution and its government and, after an insignificant skirmish, routed Dorr and his followers. It meanwhile provided for the calling of its own convention, which drafted a constitution that went peacefully into effect in 1843.25

Luther v. Borden was a trespass action brought by one of Dorr’s supporters in a United States Circuit Court to recover damages for the breaking and entering of his house. The defendants justified under military orders pursuant to martial law declared by the charter government, and plaintiff, by his reply, joined issue on the legality of the charter government subsequent to the adoption of the Dorr constitution. Evidence offered by the plaintiff tending to establish that the Dorr government was the rightful government of Rhode Island was rejected by the Circuit Court; the court charged the jury that the charter government was lawful; and on a verdict for defendants, plaintiff brought a writ of error to this Court.

The Court, through Mr. Chief Justice Taney, affirmed, After noting that the issue of the charter government’s legality had been resolved in that government’s favor by the state courts of Rhode Island — that the state courts, deeming the matter a political one unfit for judicial determination, had declined to entertain attacks upon the existence and authority of the charter government — the Chief Justice held that the courts of the United States must follow those of the State in this regard. Id., at 39-40. It was recognized that the compulsion to follow *294state law would not apply in a federal court in the face of a superior command found in the Federal Constitution, ibid., but no such command was found. The Constitution, the Court said — referring to the Guarantee Clause of the Fourth Article — “. . . as far as it has provided for an emergency of this kind, and authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department.” Id., at 42.

“Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this casé did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts.” Ibid.26

*295In determining this issue non-justiciable, the Court was sensitive to the same considerations to which its later decisions have given the varied applications already discussed. It adverted to the delicacy of judicial intervention into the very structure of government.27 It acknowledged that tradition had long entrusted questions of this nature to non-judicial processes,28 and that judicial processes were unsuited to their decision.29 The absence of guiding standards for judgment was critical, for the question whether the Dorr constitution had been rightfully adopted depended, in part, upon the extent of the franchise to be recognized — the very point of contention over which rebellion had been fought.

“. . . [I] f the Circuit Court had entered upon this inquiry, by what rule could it have determined the qualification of voters upon the adoption or rejection of the proposed constitution, unless there was some previous law of the State to guide it? It is the province of a court to expound the law, not to make it. And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, giving the right to those to whom it is denied by the written and established constitution and laws of the State, or taking it away from those to whom it is given; nor has it the right to determine what political privileges *296the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision.” Id., at 41.

Mr. Justice Woodbury (who dissented with respect to the effect of martial law) agreed with the Court regarding the inappropriateness of judicial inquiry into the issues:

“But, fortunately for our freedom from political excitements in judicial duties, this court can never with propriety be called on officially to be the umpire in questions merely political. The adjustment of these questions belongs to the people and their political representatives, either in the State or general government. These questions relate to matters not to be settled on strict legal principles. They are adjusted rather by inclination, — or prejudice or compromise, often. Some of them succeed or are defeated even by public policy alone, or mere naked power, rather than intrinsic right. . . .

“Another evil, alarming and little foreseen, involved in regarding these as questions for the final arbitrament of judges would be, that in such an event all political privileges and rights would, in a dispute among the people, depend on our decision finally. . . . [DJisputed points in making constitutions, depending often, as before shown, on policy, inclination, popular resolves, and popular will, . . . if the people, in the distribution of powers under the constitution, should ever think of making judges supreme arbiters in political controversies, when not selected by nor, frequently, amenable to them, nor at liberty to follow such various considerations in their judgments as belong to mere political questions, they will dethrone themselves and lose one of their own invaluable birthrights; building up in this way— slowly, but surely — a new sovereign power in the *297republic, in most respects irresponsible and unchangeable for life, and one more dangerous, in theory at least, than the worst elective oligarchy in the worst of times. . . Id., at 51-53.30

III.

The present case involves all of the elements that have made the Guarantee Clause cases non-justiciable. It is, in effect, a Guarantee Clause claim masquerading under a different label. But it cannot make the case more fit for judicial action that appellants invoke the Fourteenth Amendment rather than Art. IV, § 4, where, in fact, the gist of their complaint is the same — unless it can be found that the Fourteenth Amendment speaks with greater particularity to their situation, f We have been admonished "to avoid “the tyranny of labels.” Snyder v. Massachusetts, 291 U. S. 97, 114. Art. IV, § 4, is not committed by express constitutional terms to Congress. It is the nature of the controversies arising under it, nothing else, which has made it judicially unenforceable. Of course, if a controversy falls within judicial power, it depends “on how he [the plaintiff] casts his action,” Pan American Petroleum Corp. v. Superior Court, 366 U. S. 656, 662, whether he brings himself within a jurisdictional statute. But where judicial competence is wanting, it cannot be created by invoking one clause of the Constitution rather than another. When what was essentially a Guarantee Clause claim was sought to be laid, as well, under the Equal Protection Clause in Pacific States Telephone & Telegraph Co. v. Oregon, supra, the Court had no difficulty in “dis*298pelling any mere confusion resulting from forms of expression and considering the substance of things . . . .” 223 U. S., at 140.

Here appellants attack “the State as a State,” precisely as it was perceived to be attacked in the Pacific States case, id., at 150. Their complaint is that the basis of representation of the Tennessee Legislature hurts them. They assert that “a minority now rules in Tennessee,” that the apportionment statute results in a “distortion of the constitutional system,” that the General Assembly is no longer “a body representative of the people of the State of Tennessee,” all “contrary to the basic principle of representative government . . . .” Accepting appellants’ own formulation of the issue, one can know this handsaw from a hawk. Such a claim would be non-justiciable not merely under Art. IV, § 4, but under any clause of the Constitution, by virtue of the very fact that a federal court is not a forum for political debate. Massachusetts v. Mellon, supra.

But appellants, of course, do not rest on this claim simpliciter. In invoking the Equal Protection Clause, they assert that the .distortion of representative government complained of is produced by systematic discrimination against them, by way of “a debasement of their votes . . . .” Does this characterization, with due regard for the facts from which it is derived, add anything to appellants’ case? 31

At first blush, this charge of discrimination based on legislative underrepresentation is given the appearance of *299a more private, less impersonal claim, than the assertion that the frame of government is askew. Appellants appear as representatives of a class that is prejudiced as a class, in contradistinction to the polity in its entirety. However, the discrimination relied on is the deprivation of what appellants conceive to be their proportionate share of political influence. This, of course, is the practical effect of any allocation of power within the institutions of government. Hardly any distribution of political authority that could be assailed as rendering government non-republican would fail similarly to operate to the prejudice of some groups, and to the advantage of others, within the body politic. It would be ingenuous not to see, or consciously blind to deny, that the real battle over the initiative and referendum, or over a delegation of power to local rather than state-wide authority, is the battle between forces whose influence is disparate among the various organs of government to whom power may be given. No shift of power but works a corresponding shift iin political influence among the groups composing a : society.

What, then, is this question of legislative apportionment? Appellants invoke the right to vote and to have their votes counted.32 But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state *300councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful — in short, that Tennessee has adopted a basis of representation with which they are dissatisfied. Talk of “debasement” or “dilution” is circular talk. One cannot speak of “debasement” or “dilution” of the value of a vote until there is first defined a standard of reference as to what a vote should be worth. What is actually asked of the Court in this case is to choose among competing bases of representation — ultimately, really, among competing theories of political philosophy — in order to establish an appropriate frame of government for the State of Tennessee and thereby for all the States of the Union.

In such a matter, abstract analogies which ignore the facts of history deal in unrealities; they betray reason. This is not a case in which a State has, through a device however oblique and sophisticated, denied Negroes or Jews or redheaded persons a vote, or given them only a third or a sixth of a vote. That was Gomillion v. Lightfoot, 364 U. S. 339. What Tennessee illustrates is an old and still widespread method of representation — representation by local geographical division, only in part respective of population — in preference to others, others, forsooth, more appealing. Appellants contest this choice and seek to make this Court the arbiter of the disagreement. They would make the Equal Protection Clause the charter of adjudication, asserting that the equality which it guarantees comports, if not the assurance of equal weight to every voter’s vote, at least the basic conception that representation ought to be proportionate to population, a standard by reference to which the reasonableness of apportionment plans may be judged.

To find such a political conception legally enforceable in the broad and unspecific guarantee of equal protection to rewrite the.. Constitution. See Luther v. Borden, supra. "Certainly, “equal protection” is no more secure *301a foundation for judicial judgment of the permissibility of varying forms of representative government than is “Republican Form.” Indeed since “equal protection of the laws” can only mean an equality of persons standing in the same relation to whatever governmental action is challenged, the determination whether treatment is equal presupposes a determination concerning the nature of the relationship. This, with respect to apportionment, means an inquiry into the theoretic base of representation in an acceptably republican state. For a court could not determine the equal-protection issue without in fact first determining the Republican-Form issue, simply because what is reasonable for equal-protection purposes will depend upon what frame of government, basically, is allowed. To divorce “equal protection” from “Republican Form” is to talk about half a question.

The notion that representation proportioned to the geographic spread of population is so universally accepted as a necessary element of equality between man and man that it must be taken to be the standard of a political equality preserved by the Fourteenth Amendment — that it is, in appellants’ words “the basic principle of representative government” — is, to put it bluntly, not true. However desirable and however desired by some among the great political thinkers and framers of our government, it has never been generally practiced, today or in the past. It was not the English system, it was not the colonial system, it was not the system chosen for the national government by the Constitution, it was not the system exclusively or even predominantly practiced by the States at the time of adoption of the Fourteenth Amendment, it is not predominantly practiced by the States today. Unless judges, the judges of this Court, are to make their private views of political wisdom the measure of the Constitution — views which in all honesty cannot but give the appearance, if not reflect the reality, of *302involvement with the business of partisan politics so inescapably a part of apportionment controversies — the Fourteenth Amendment, “itself a historical product,” Jackman v. Rosenbaum Co., 260 U. S. 22, 31, provides no guide for judicial oversight of the representation problem.

1. Great Britain. Writing in 1958, Professor W. J. M. Mackenzie aptly summarized the British history of the principle of representation proportioned to population: “ ‘Equal electoral districts’ formed part of the programme of radical reform in England in the 1830s, the only part of that programme which has not been realised.” 33 Until the late nineteenth century, the sole base of representation (with certain exceptions not now relevant) was the local geographical unit: each county or borough returned its fixed number of members, usually two for the English units, regardless of population.34 Prior to the Reform Act of 1832, this system was marked by the almost total disfranchisement of the populous northern industrial centers, which had grown to significant size at the advent of the Industrial Revolution and had not been granted borough representation, and by the existence of the rotten borough, playing its substantial part in the Crown’s struggle for continued control of the Commons.35 In 1831, ten southernmost English counties, numbering three and a quarter million people, had two hundred and thirty-five parliamentary representatives, while the six northernmost counties, with more than three and a half million people, had sixty-eight.36 It was said that one hundred and eighty persons appointed three hundred and *303fifty members in the Commons.37 Less than a half century earlier, Madison in the Federalist had remarked that half the House was returned by less than six thousand of the eight million people of England and Scotland.38

The Act of 1832, the product of a fierce partisan political struggle and the occasion of charges of gerrymandering not without foundation,39 effected eradication of only the most extreme numerical inequalities of the unreformed system. It did not adopt the principle of representation based on population, but merely disfranchised certain among the rotten borough and enfranchised most of the urban centers — still quite without regard to their relative numbers.40 In the wake of the Act there remained substantial electoral inequality: the boroughs of Cornwall were represented sixteen times as weightily, judged by population, as the county’s eastern division; the average ratio of seats to population in ten agricultural counties was four and a half times that in ten manufacturing divisions; Honiton, with about three thousand inhabitants, was equally represented with Liverpool, which had four hundred thousand.41 In 1866 apportionment by population began to be advocated generally in the House, but was not made the basis of the redistribution of 1867, although the act of that year did apportion representation more evenly, gauged by the population standard.42 Population shifts increased the surviving inequalities; by 1884 the representation ratio *304in many small boroughs was more than twenty-two times that of Birmingham or Manchester, forty-to-one disparities could be found elsewhere, and, in sum, in the 1870’s and 1880’s, a fourth of the electorate returned two-thirds of the members of the House.43

The first systematic English attempt to distribute seats by population was the Redistribution Act of 1885.44 The statute still left ratios of inequality of as much as seven to one,45 which had increased to fifteen to one by 1912.46 In 1918 Parliament again responded to “shockingly bad” conditions of inequality,47 and to partisan political inspiration,48 by redistribution.49 In 1944, redistribution was put on a periodic footing by the House of Commons (Redistribution of Seats) Act of that year,50 which committed a continuing primary responsibility for reapportioning the Commons to administrative agencies (Boundary Commissions for England, Scotland, Wales and Northern Ireland, respectively).51 The Commissions, having regard to certain rules prescribed for their guidance, are to prepare at designated intervals reports for the Home Secretary’s submission to Parliament, along with the draft of an Order in Council to give effect to the *305Commissions’ recommendations. The districting rules adopt the basic principle of representation by population, although the principle is significantly modified by directions to respect local geographic boundaries as far as practicable, and by discretion to take account of special geographical conditions, including the size, shape and accessibility of constituencies. Under the original 1944 Act, the rules provided that (subject to the exercise of the discretion respecting special geographical conditions and to regard for the total size of the House of Commons as prescribed by the Act) so far as practicable, the single-member districts should not deviate more than twenty-five percent from the electoral quota (population divided by number of constituencies). However, apparently at the recommendation of the Boundary Commission for England, the twenty-five percent standard was eliminated as too restrictive in 1947, and replaced by the flexible provision that constituencies are to be as near the electoral quota as practicable, a rule which is expressly subordinated both to the consideration of special geographic conditions and to that of preserving local boundaries.52 Free of the twenty-five percent rule, the Commissions drew up plans of distribution in which inequalities among the districts run, in ordinary eases, as high as two to one and, in the case of a few extraordinary constituencies, three to one.53 The action of the Boundary Commission for England was twice challenged in the courts in 1954 — the claim being that the Commission had violated statutory rules *306prescribing the standards for its judgment — and in both cases the Judges declined to intervene. In Hammersmith Borough Council v. Boundary Commission for England,54, Harm an, J., was of opinion that the nature of the controversy and the scheme of the Acts made the matter inappropriate for judicial interference, and in Harper v. Home Secretary55 the Court of Appeal, per Evershed, M. R., quoting Harman, J., with approval, adverting to the wide range of discretion entrusted to the Commission under the Acts, and remarking the delicate character of the parliamentary issues in which it was sought to engage the court, reached the same conclusion.56

The House of Commons (Redistribution of Seats) Act, 1958,57 made two further amendments to the law. Responsive to the recommendation of the Boundary Commission for England,58 the interval permitted between Commission reports was more than doubled, to a new maximum of fifteen years.59 And at the suggestion of the same Commission that “It would ease the future labours of the Commission and remove much local irritation if Rule 5 [requiring that the electorate of each constituency be as near the electoral quota as practicable] were to be so amended as to allow us to make recommendations preserving the status quo in any area where such a course appeared to be desirable and not inconsistent *307with the broad intention of the Rules,” 60 the Commissions were directed to consider the inconveniences attendant upon the alteration of constituencies, and the local ties which such alteration might break. The Home Secretary’s view of this amendment was that it worked to erect “a presumption against making changes unless there is a very strong case for them.” 61

2. The Colonies and the Union. For the guiding political theorists of the Revolutionary generation, the English system of representation, in its most salient aspects of numerical inequality, was a model to be avoided, not followed.62 Nevertheless, the basic English principle of apportioning representatives among the local governmental entities, towns or counties, rather than among units of approximately equal population, had early taken root in the colonies.63 In some, as in Massachusetts and Rhode Island, numbers of electors were taken into account, in a rough fashion, by allotting increasing fixed quotas of representatives to several towns or classes of towns graduated by population, but in most of the colonies delegates were allowed to the local units without respect to numbers.64 This resulted in grossly unequal electoral units.65 The representation ratio in one North Carolina county was more than eight times that in another.66 Moreover, American rotten boroughs had appeared,67 and apportionment was made an instrument first in the politi*308cal struggles between the King or the royal governors and the colonial legislatures,68 and, later, between the older tidewater regions in the colonies and the growing interior.69 Madison in the Philadelphia Convention adverted to the “inequality of the Representation in the Legislatures of particular States, . . .”70 arguing that it was necessary to confer on Congress the power ultimately to regulate the times, places and manner of selecting Representatives,71 in order to forestall the overrepresented counties’ securing themselves a similar over-representation in the national councils. The example of South Carolina, where Charleston’s overrepresentation was a continuing bone of contention between the tidewater and the back country, was cited by Madison in the Virginia Convention and by King in the Massachusetts Convention, in support of the same power, and King also spoke of the extreme numerical inequality arising from Connecticut’s town-representation system.72

Such inequalities survived the constitutional period. The United States Constitution itself did not largely adopt the principle of numbers. Apportionment of the national legislature among the States was one of the most difficult problems for the Convention; 73 its solution— involving State representation in the Senate 74 and the three-fifths compromise in the House75 — left neither chamber apportioned proportionately to population. *309Within the States, electoral power continued to be allotted to favor the tidewater.76 Jefferson, in his Notes on Virginia, recorded the “very unequal” representation there: individual counties differing in population by a ratio of more than seventeen to one elected the same number of representatives, and those nineteen thousand of Virginia’s fifty thousand men who lived between the falls of the rivers and the seacoast returned half the State’s senators and almost half its delegates.77 In South Carolina in 1790, the three lower districts, with a white population of less than twenty-nine thousand elected twenty senators and seventy assembly members; while in the uplands more than one hundred and eleven thousand white persons elected seventeen senators and fifty-four assemblymen.78

In the early nineteenth century, the demands of the interior became more insistent. The apportionment quarrel in Virginia was a major factor in precipitating the calling of a constitutional convention in 1829. Bitter animosities racked the convention, threatening the State with disunion. At last a compromise which gave the three hundred and twenty thousand people of the west thirteen senators, as against the nineteen senators returned by the three hundred sixty-three thousand people of the east, commanded agreement. It was adopted at the polls but left the western counties so dissatisfied that there were threats of revolt and realignment with the State of Maryland.79

Maryland, however, had her own numerical disproportions. In 1820, one representative vote in Calvert County *310was worth five in Frederick County, and almost two hundred thousand people were represented by eighteen members, while fifty thousand others elected twenty.80 This was the result of the county-representation system of allotment. And, except for Massachusetts which, after a long struggle, did adopt representation by population at the mid-century, a similar town-representation principle continued to prevail in various forms throughout New England, with all its attendant, often gross inequalities.81

3. The States at the time of ratification of the Fourteenth Amendment, and those later admitted. The several state conventions throughout the first half of the nineteenth century were the scenes of fierce sectional and party strifes respecting the geographic allocation of representation.82 Their product was a wide variety of apportionment methods which recognized the element of population in differing ways and degrees. Particularly pertinent to appraisal of the contention that the Fourteenth Amendment embodied a standard limiting the freedom of the States with regard to the principles and bases of local legislative apportionment is an examination of the apportionment provisions of the thirty-three States which ratified the Amendment between 1866 and 1870, at their respective times of ratification. These may be considered in two groups: (A) the ratifying States other than the ten Southern States whose constitutions, at the time of ratification or shortly thereafter, were the work of the Reconstruction Act conventions;83 and *311(B) the ten Reconstruction-Act States. All thirty-three are significant, because they demonstrate how unfounded is the assumption that the ratifying States could have agreed on a standard apportionment theory or practice, and how baseless the suggestion that by voting for the Equal Protection Clause they sought to establish a test mold for apportionment which — if appellants’ argument is sound — struck down sub silentio not a few of their own state constitutional provisions. But the constitutions of the ten Reconstruction-Act States have an added importance, for it is scarcely to be thought that the Congress which was so solicitous for the adoption of the Fourteenth Amendment as to make the readmission of the late rebel States to Congress turn on their respective ratifications of it, would have approved constitutions which — again, under appellants’ theory — contemporaneously offended the Amendment.

A. Of the twenty-three ratifying States of the first group, seven or eight had constitutions which demanded or allowed apportionment of both houses on the basis of population,84 unqualifiedly or with only qualifications respecting the preservation of local boundaries.85 Three *312more apportioned on what was essentially a population base, but provided that in one house counties having a specified fraction of a ratio — a moiety or two-thirds— should have a representative.86 Since each of these three States limited the size of their chambers, the fractional rule could operate — and, at least in Michigan, has in fact operated87 — to produce substantial numerical inequalities *313in favor of the sparsely populated counties.88 Iowa favored her small counties by the rule that no more than four counties might be combined in a representative district,89 and New York and Kansas compromised population and county-representation principles by assuring every county, regardless of the number of its inhabitants, at least one seat in their respective Houses.90

Ohio and Maine recognized the factor of numbers by a different device. The former gave a House representative to each county having half a ratio, two representatives for a ratio and three-quarters, three representatives for three ratios, and a single additional representative for each additional ratio.91 The latter, after apportioning among counties on a population base, gave each town of fifteen hundred inhabitants one representative, each town of three thousand, seven hundred and fifty inhabitants two representatives, and so on in increasing intervals to twenty-six thousand, two hundred and fifty inhabitants— towns of that size or larger receiving the maximum permitted number of representatives: seven.92 The departure from numerical equality under these systems is apparent: in Maine, assuming the incidence of towns in *314all categories, representative ratios would differ by factors of two and a half to one, at a minimum. Similarly, Missouri gave each of its counties, however small, one representative, two representatives for three ratios, three representatives for six ratios, and one additional representative for each three ratios above six.93 New Hampshire allotted a representative to each town of one hundred and fifty ratable male polls of voting age and one more representative for each increment of three hundred above that figure;94 its Senate was not apportioned by population but among districts based on the proportion of direct taxes paid.95 In Pennsylvania, the basis of apportionment in both houses was taxable inhabitants; and in the House every county of at least thirty-five hundred taxables had a representative, nor could more than three counties be joined in forming a representative district; while in the Senate no city or county could have more than four of the State’s twenty-five to thirty-three senators.96

Finally, four States apportioned at least one House with no regard whatever to population. In Connecticut97 and Vermont98 representation in the House was on a town basis; Rhode Island gave one senator to each of its towns or cities,99 and New Jersey, one to each of its counties.100 *315Nor, in any of these States, was the other House apportioned on a strict principle of equal numbers: Connecticut gave each of its counties a minimum of two senators101 and Vermont, one;102 New Jersey assured each county a representative;103 and in Rhode Island, which gave at least one representative to each town or city, no town or city could have more than one-sixth of the total number in the House.104

B. Among the ten late Confederate States affected by the Reconstruction Acts, in only four did it appear that apportionment of both state legislative houses would or might be based strictly on population.105 In North Carolina,106 South Carolina,107 Louisiana,108 and Alabama,109 each county (in the case of Louisiana, each parish) was assured at least one seat in the lower House irrespective of numbers — a distribution which exhausted, respectively, *316on the basis of the number of then-existing counties, three-quarters, one-quarter, two-fifths and three-fifths of the maximum possible number of representatives, before a single seat was available for assignment on a population basis; and in South Carolina, moreover, the Senate was composed of one member elected from each county, except that Charleston sent two.110 In Florida’s House, each county had one seat guaranteed and an additional seat for every thousand registered voters up to a maximum of four representatives; 111 while Georgia, whose Senate seats were distributed among forty-four single-member districts each composed of three contiguous counties,112 assigned representation in its House as follows: three seats to each of the six most populous counties, two to each of the thirty-one next most populous, one to each of the remaining ninety-five.113 As might be expected, the one-representative-per-county minimum pattern has proved incompatible with numerical equality,114 and Georgia’s *317county-clustering system has produced representative-ratio disparities, between the largest and smallest counties, of more than sixty to one.115

C. The constitutions 116 of the thirteen States which Congress admitted to the Union after the ratification of the Fourteenth Amendment showed a similar pattern. Six of them required or permitted apportionment of both Houses by population, subject only to qualifications concerning local boundaries.117 Wyoming, apportioning by population, guaranteed to each of its counties at least one seat in each House,118 and Idaho, which prescribed (after the first legislative session) that apportionment should be “as may be provided by law,” gave each county at least one representative.119 In Oklahoma, House members were apportioned among counties so as to give one *318seat for half a ratio, two for a ratio and three-quarters, and one for each additional ratio up to a maximum of seven representatives per county.120 Montana required reapportionment of its House on the basis of periodic enumerations according to ratios to be fixed by law121 but its counties were represented as counties in the Senate, each county having one senator.122 Alaska123 and Hawaii124 each apportioned a number of senators among constitutionally fixed districts; their respective Houses were to be periodically reapportioned by population, subject to a moiety rule in Alaska125 and to Hawaii’s guarantee of one representative to each of four constitutionally designated areas.126 The Arizona Constitution assigned representation to each county in each house, giving one or two senators and from one to seven representatives to each, and making no provision for reapportionment.127

*3194. Contemporary apportionment. Detailed recent studies are available to describe the present-day constitutional and statutory status of apportionment in the fifty States.128 They demonstrate a decided twentieth-century trend away from population as the exclusive base of representation. Today, only a dozen state constitutions provide for periodic legislative reapportionment of both houses by a substantially unqualified application of the population standard,129 and only about a dozen more prescribe such reapportionment for even a single chamber. “Specific provision for county representation in at least one house of the state legislature has been increasingly adopted since the end of the 19th century. . . .”130 More than twenty States now guarantee each county at least one seat in one of their houses regardless of population, and in nine others county or town units are given equal representation in one legislative branch, whatever the number of each unit’s inhabitants. Of course, numerically considered, “These provisions invariably result in over-representation of the least populated areas. . . .” 131 And in an effort to curb the political dominance of metropolitan regions, at least ten States now limit the maximum entitlement of any single county (or, in some cases, city) *320in one legislative house — another source of substantial numerical disproportion.132

Moreover, it is common knowledge that the legislatures have not kept reapportionment up to date, even where state constitutions in terms require it.133 In particular, the pattern of according greater per capita representation to rural, relatively sparsely populated areas — the same pattern which finds expression in various state constitutional provisions,134 and which has been given effect in England and elsewhere135 — has, in some of the States, been made the law by legislative inaction in the face of *321population shifts.136 Throughout the country, urban and suburban areas tend to be given higher representation ratios than do rural areas.137

The stark fact is that if among the numerous widely varying principles and practices that control state legislative apportionment today there is any generally prevailing feature, that feature is geographic inequality in relation to the population standard.138 Examples could be endlessly multiplied. In New Jersey, counties of *322thirty-five thousand and of more than nine hundred and five thousand inhabitants respectively each have a single senator.139 Representative districts in Minnesota range from 7,290 inhabitants to 107,246 inhabitants.140 Ratios of senatorial representation in California vary as much as two hundred and ninety-seven to one.141 In Oklahoma, the range is ten to one for House constituencies and roughly sixteen to one for Senate constituencies.142 Cole-brook, Connecticut — population 592 — elects two House representatives; Hartford — population 177,397 — also elects two.143 The first, third and fifth of these examples are the products of constitutional provisions which subordinate population to regional considerations in apportionment; the second is the result of legislative inaction; the fourth derives from both constitutional and legislative sources. A survey made in 1955, in sum, reveals that less than thirty percent of the population inhabit districts sufficient to elect a House majority in thirteen States and a Senate majority in nineteen States.144 These figures show more than individual variations from a generally accepted standard of electoral equality. They show that there is not — as there has never been — a standard by *323which the place of equality as a factor in apportionment can be measured.

Manifestly, the Equal Protection Clause supplies no clearer guide for judicial examination of apportionment methods than would the Guarantee Clause itself. Apportionment, by its character, is a subject of extraordinary complexity, involving — even after the fundamental theoretical issues concerning what is to be represented in a representative legislature have been fought out or compromised — considerations of geography, demography, electoral convenience, economic and social cohesions or divergencies among particular local groups, communications, the practical effects of political institutions like the lobby and the city machine, ancient traditions and ties of settled usage, respect for proven incumbents of long experience and senior status, mathematical mechanics, censuses compiling relevant data, and a host of others.145 *324Legislative responses throughout the country to the reapportionment demands of the 1960 Census have glaringly confirmed that these are not factors that lend themselves to evaluations of a nature that are the staple of judicial determinations or for which judges are equipped to adjudicate by legal training or experience or native wit. And this is the more so true because in every strand of this complicated, intricate web of values meet the contending forces of partisan politics.146 The practical significance of apportionment is that the next election results may differ because of it. Apportionment battles are overwhelmingly party or intra-party contests.147 It will add a virulent source of friction and tension in federal-state relations to embroil the federal judiciary in them.148

*325IV.

Appellants, however, contend that the federal courts may provide the standard which the Fourteenth Amendment lacks by reference to the provisions of the constitution of Tennessee. The argument is that although the same or greater disparities of electoral strength may be suffered to exist immune from federal judicial review in States where they result from apportionment legislation consistent with state constitutions, the Tennessee Legislature may not abridge the rights which, on its face, its own constitution appears to give, without by that act denying equal protection of the laws. It is said that the law of Tennessee, as expressed by the words of its written constitution, has made the basic choice among policies in favor of representation proportioned to population, and that it is no longer open to the State to allot its voting power on other principles.

This reasoning does not bear analysis. Like claims invoking state constitutional requirement have been rejected here and for good reason. It is settled that whatever federal consequences may derive from a discrimination worked by a state statute must be the same as if the same discrimination were written into the *326State’s fundamental law. Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362. And see Castillo v. McConnico, 168 U. S. 674; Coulter v. Louisville & N. R. Co., 196 U. S. 599, 608-609; Owensboro Waterworks Co. v. Owensboro, 200 U. S. 38; Hebert v. Louisiana, 272 U. S. 312, 316-317; Snowden v. Hughes, 321 U. S. 1, 11. Appellants complain of a practice which, by their own allegations, has been the law of Tennessee for sixty years. They allege that the Apportionment Act of 1901 created unequal districts when passed and still maintains unequal districts. They allege that the Legislature has since 1901 purposefully retained unequal districts. And the Supreme Court of Tennessee has refused to invalidate the law establishing these unequal districts. Kidd v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40; appeal dismissed here in 352 U. S. 920. In these circumstances, what was said in the Browning case, supra, at 369, clearly governs this case:

“. . . Here, according to petitioner’s own claim, all the organs of the state are conforming to a practice, systematic, unbroken for more than forty years, and now questioned for the first time. It would be a narrow conception of jurisprudence to confine the notion of ‘laws’ to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text. . . . [T]he Equal Protection Clause is not a command of candor. . . .”

*327Tennessee’s law and its policy respecting apportionment are what 60 years of practice show them to be, not what appellants cull from the unenforced and, according to its own judiciary, unenforceable words of its Constitution. The statute comes here on the same footing, therefore, as would the apportionment laws of New Jersey, California or Connecticut,149 and is unaffected by its supposed repugnance to the state constitutional language on which appellants rely.150

In another aspect, however, the Kidd v. McCanless case, supra, introduces a factor peculiar to this litigation, which only emphasizes the duty of declining the exercise of federal judicial jurisdiction. In all of the apportionment cases which have come before the Court, a consideration which has been weighty in determining their non-justicia-bility has been the difficulty or impossibility of devising effective judicial remedies in this class of case. An injunction restraining a general election unless the legislature reapportions would paralyze the critical centers of a State’s political system and threaten political dislocation whose consequences are not foreseeable. A declaration devoid *328of implied compulsion of injunctive or other relief would be an idle threat.151 Surely a Federal District Court could not itself remap the State: the same complexities which impede effective judicial review of apportionment a fortiori make impossible a court’s consideration of these imponderables as an original matter. And the choice of elections at large as opposed to elections by district, however unequal the districts, is a matter of sweeping political judgment having enormous political implications, the nature and reach of which are certainly beyond the informed understanding of, and capacity for appraisal by, courts.

In Tennessee, moreover, the McCanless case has closed off several among even these unsatisfactory and dangerous modes of relief. <\That case was a suit in the state courts attacking the 1901 Reapportionment Act and seeking a declaration and an injunction of the Act’s enforcement or, alternatively, a writ of mandamus compelling state election officials to hold the elections at large, or, again alternatively, a decree of the court reapportioning the State. The Chancellor denied all coercive relief, but entertained the suit for the purpose of rendering a declaratory judgment. It was his view that despite an invalidation of the statute under 'which the present legislature was elected, that body would continue to possess de facto authority to reapportion, and that therefore the maintaining of the suit did not threaten the disruption of the government. The Tennessee Supreme Court agreed that no coercive relief could be granted; in particular, it said, “There is no provision of- law for election of our General Assembly by an election at large over the State.” 200 Tenn., at 277, 292 S. W. 2d, at 42. Thus, a legislature elected at *329large would not be the legally constituted legislative authority of the State. The court reversed, however, the Chancellor’s determination to give declaratory relief, holding that the ground of demurrer which asserted that a striking down of the statute would disrupt the orderly process of government should have been sustained:

“(4) It seems obvious and we therefore hold that if the Act of 1901 is to be declared unconstitutional, then the de facto doctrine cannot be applied to maintain the present members of the General Assembly in office. If the Chancellor is correct in holding that this statute has expired by the passage of the decade following its enactment then for the same reason all prior apportionment acts have expired by a like lapse of time and are non-existent. Therefore we would not only not have any existing members of the General Assembly but we would have no apportionment act whatever under which a new election could be held for the election of members to the General Assembly.

“The ultimate result of holding this Act unconstitutional by reason of the lapse of time would be to deprive us of the present Legislature and the means of electing a new one and ultimately bring about the destruction of the State itself.” 200 Tenn., at 281-282, 292 S. W. 2d, at 44.

A federal court enforcing the Federal Constitution is not, to be sure, bound by the remedial doctrines of the state courts. But it must consider as pertinent to the propriety or impropriety of exercising its jurisdiction those state-law effects of its decree which it cannot itself control. A federal court cannot provide the authority requisite to make a legislature the proper governing body of the State of Tennessee. And it cannot be doubted that the striking down *330of the statute here challenged on equal protection grounds, no less than on grounds of failure to reapportion decennially, would deprive the State of all valid apportionment legislation and — under the ruling in McCanless — deprive the State of an effective law-based legislative branch. Just such considerations, among others here present, were determinative in Luther v. Borden and the Oregon initiative cases.152

Although the District Court had jurisdiction in the very restricted sense of power to determine whether it could adjudicate the claim, the case is of that class of political controversy which, by the nature of its subject, is unfit for federal judicial action. The judgment of the District Court, in dismissing the complaint for failure to state a claim on which relief can be granted, should therefore be affirmed.

*

It is worth reminding that the problem of legislative apportionment is not one dividing North and South. Indeed, in the present House of Representatives, for example, Michigan’s congressional districts are far less representative of the numbers of inhabitants, according to the 1960 census, than are Louisiana’s. Michigan’s Sixteenth District, which is 93.1% urban, contains 802,994 persons and its Twelfth, which is 47.6% urban, contains 177,431 — one-fifth as many persons. Louisiana’s most populous district, the Sixth, is 53.6% urban and contains 536,029 persons, and its least populous, the Eighth, 36.7% urban, contains 263,850 — nearly half. Gross disregard of any assumption that our political system implies even approximation to the notion that individual votes in the various districts within a State should have equal weight is as true, e. g., of California, Illinois, and Ohio as it is of Georgia. See United States Department of Commerce, Census Release, February 24,1962, CB62-23.

2

Although the motion to intervene by the Mayor of Nashville asserted an interest in the litigation in only a representative capacity, the complaint which he subsequently filed set forth that he was a qualified voter who also sued in his own behalf. The municipalities of Knoxville and Chattanooga purport to represent their residents. Since the claims of the municipal intervenors do not differ materially from those of the parties who sue as individual voters, the Court need not now determine whether the municipalities are proper parties to this proceeding. See, e. g., Stewart v. Kansas City, 239 U. S. 14.

3

The original complaint named as defendants Tennessee’s Secretary of State, Attorney General, Coordinator of Elections, and the three members of the State Board of Elections, seeking to make the Board members representatives of all the State’s County Election Commissioners. The prayer in an intervening complaint by the City of Knoxville, that the Commissioners of Elections of Knox County be added as parties defendant seems not to have been acted on by the court below. Defendants moved to dismiss, inter alia, on the ground *272of failure to join indispensable parties, and they argue in this Court that only the County Election Commissioners of the ninety-five counties are the effective administrators of Tennessee’s elections laws, and that none of the defendants have substantial duties in connection therewith. The District Court deferred ruling on this ground of the motion. Inasmuch as it involves questions of local law more appropriately decided by judges sitting in Tennessee than by this Court, and since in any event the failure to join County Election Commissioners in this action looking to prospective relief could be corrected, if necessary, by amendment of the complaints, the issue does not concern the Court on this appeal.

4

Jurisdiction is predicated upon R. S. § 1979, 42 U. S. C. § 1983, and 28 U. S. C. § 1343 (3).

5

However, counties having two-thirds of the ratio required for a Representative are entitled to seat one member in the House, and there are certain geographical restrictions upon the formation of Senate districts. The applicable provisions of Article II of the Tennessee Constitution are:

“Sec. 4- Census. — An enumeration of the qualified voters, and an apportionment of the Representatives in the General Assembly, shall be made in the year one thousand eight hundred and seventy-one, and within every subsequent term of ten years.”

“Sec. 5. Apportionment of representatives. — The number of Representatives shall, at the several periods of making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each; and shall not exceed seventy-*273five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided that any county having two-thirds of the ratio shall be entitled to one member.”

“Sec. 6. Apportionment of senators. — The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no county shall be divided in forming a district.”

6

It is alleged that certain amendments to the Act of 1901 made only minor modifications of that Act, adjusting the boundaries of individual districts in a manner not material to plaintiffs’ claims.

7

The exhibits do not reveal the source of the population figures which they set forth, but it appears that the figures were taken from the United States Census of Population, 1950, Volume II, Part 42 (Tennessee), Table 41, at 76-91. These census figures represent the total population over twenty-one years of age in each Tennessee county; they do not purport to enumerate “qualified voters” or “qualified electors,” the measure of apportionment prescribed by the Tennessee Constitution. See note 5, supra. To qualify to vote in Tennessee, in addition to fulfilling the age requirement, an individual must be a citizen of the United States, a resident of the State for twelve months and of the county where he offers his vote for six months next preceding the election, and must not be under the dis*275qualification attaching to conviction for certain offenses. Tenn. Code Ann., 1955, §§ 2-201, 2-205. The statistics found in the United States Census of Population, 1950, Volume II, Part 42 (Tennessee), Table 42, at 92-97, suggest that the residence requirement, in particular, may be an unknown variable of considerable significance. Appellants do not suggest a means by which a court, on the basis of the federal census figures, can determine the number of qualified voters in the various Tennessee counties.

8

The “county aid funds” derived from a portion of a state gasoline privilege tax, for example, are distributed among the counties as follows: one-half equally among the ninety-five counties, one-quarter on the basis of area, one-quarter on the basis of population, to be used-by county authorities in the building, repairing and improving of county roads and bridges. Tenn. Code Ann., 1955, § 54-403. Appellants urge that this distribution is discriminatory.

9

Plaintiffs also suggested, as an alternative to at-large elections, that the District Court might itself redistrict the State. They did not, however, expressly pray such relief.

10

See Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 45 et seq. (1961).

11

See, e. g., United States v. Palmer, 3 Wheat. 610, 634, 635; The Divina Pastora, 4 Wheat. 52; Williams v. Suffolk Ins. Co., 13 Pet. 415; Kennett v. Chambers, 14 How. 38; Doe v. Braden, 16 How. 635; Jones v. United States, 137 U. S. 202; Terlinden v. Ames, 184 U. S. 270; Charlton v. Kelly, 229 U. S. 447; Oetjen v. Central Leather Co., 246 U. S. 297; Ex parte Peru, 318 U. S. 578; Clark v. Allen, 331 U. S. 503. Compare Foster and Elam v. Neilson, 2 Pet. 253, with United States v. Arredondo, 6 Pet. 691. Of course, judgment concerning the “political” nature of even a controversy affecting the Nation’s foreign affairs is not a simple mechanical matter, and certain of the Court’s decisions have accorded scant weight to the consideration of unity of action in the conduct of external relations. Compare Vermilya-Brown Co. v. Connell, 335 U. S. 377, with United States v. Pink, 315 U. S. 203.

12

Obviously, this is the equivalent of saying that the characteristics are not “constitutionally requisite” in a judicially enforceable sense. The recognition of their necessity as a condition of legislation is left, as is observance of certain other constitutional commands, to the conscience of the non-judicial organs. Cf. Kentucky v. Dennison, 24 How. 66.

13

Also compare the Coleman case and United States v. Sprague, 282 U. S. 716, with Hawke v. Smith (No. 1), 253 U. S. 221. See the National Prohibition Cases, 253 U. S. 350; and consider the Court’s treatment of the several contentions in Leser v. Garnett, 258 U. S. 130.

14

E. g., Myers v. Anderson, 238 U. S. 368; Nixon v. Condon, 286 U. S. 73; Lane v. Wilson, 307 U. S. 268; Smith v. Allwright, 321 U. S. 649. The action for damages for improperly rejecting an elector’s vote had been given by the English law since the time of Ashby v. White, 1 Brown’s Cases in Parliament 62; 2 Ld. Raym. 938; 3 Ld. Raym. 320, a case which in its own day precipitated an intra-parliamentary war of major dimensions. See 6 Hansard, Parliamentary History of England (1810), 225-324, 376-436. Prior to the racial-discrimination cases, this Court had recognized the action, by implication, in dictum in Swafford v. Templeton, 185 U. S. 487, and Wiley v. Sinkler, 179 U. S. 58, both respecting federal elections.

15

Cf. Gomillion v. Lightfoot, 364 U. S. 339.

16

By statute an action for preventive relief is now given the United States in certain voting cases. 71 Stat. 637, 42 U. S. C. § 1971 (c), amending R. S. § 2004. See United States v. Raines, 362 U. S. 17; United States v. Thomas, 362 U. S. 58.

17

Compare Rhode Island v. Massachusetts, 12 Pet. 657, and cases following, with Georgia v. Stanton, 6 Wall. 50.

18

Compare Worcester v. Georgia, 6 Pet. 515, with Cherokee Nation v. Georgia, 5 Pet. 1, 20, 28 (Mr. Justice Johnson, concurring), 51 and 75 (Mr. Justice Thompson, dissenting).

19

This was an alternative ground of Chief Justice Marshall’s opinion for the Court. Id., at 20. The question which Marshall reserved as “unnecessary to decide,” ibid., was not the justiciability of the bill *288in this aspect, but the “more doubtful” question whether that “part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession,” might be entertained. Ibid. Mr. Justice Johnson, concurring, found the controversy non-justiciable and would have put the ruling solely on this ground, id., at 28, and Mr. Justice Thompson, in dissent, agreed that much of the matter in the bill was not fit for judicial determination. Id., at 51, 75.

20

Cf. Mississippi v. Johnson, 4 Wall. 475.

21

Considerations similar to those which determined the Cherokee Nation case and Georgia v. Stanton no doubt explain the celebrated decision in Nabob of the Carnatic v. East India Co., 1 Ves. jun. *371; 2 Ves. jun. *56, rather than any attribution of a portion of British sovereignty, in respect of Indian affairs, to the company. The reluctance of the English Judges to involve themselves in contests of factional political power is of ancient standing. In The Duke *289of York’s Claim to the Croum, 5 Rotuli Parl. 375, printed in Wambaugh, Cases on Constitutional Law (1915), 1, the role which the Judges were asked to play appears to have been rather that of advocates than of judges, but the answer which they returned to the Lords relied on reasons equally applicable to either role.

22

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

23

Cf. the cases holding that the Fourteenth Amendment imposes no such restriction upon the form of a State’s governmental organization as will permit persons affected by government action to complain that in its organization principles of separation of powers have been violated. E. g., Dreyer v. Illinois, 187 U. S. 71; Soliah v. Heskin, 222 U. S. 522; Houck v. Little River Drainage District, 239 U. S. 254. The same consistent refusal of this Court to find that the Federal Constitution restricts state power to design the structure of state political institutions is reflected in the cases rejecting claims arising out of the States’ creation, alteration, or destruction of local *290subdivisions or their powers, insofar as these claims are made by the subdivisions themselves, see Laramie County v. Albany County, 92 U. S. 307; Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394; Trenton v. New Jersey, 262 U. S. 182; Risty v. Chicago, R. I. & P. R. Co., 270 U. S. 378, 389-390; Williams v. Mayor and City Council of Baltimore, 289 U. S. 36, or by the whole body of their residents who share only a general, undifferentiated interest in their preservation. See Hunter v. Pittsburgh, 207 U. S. 161. The policy is also given effect by the denial of “standing” to persons seeking to challenge state action as infringing the interest of some separate unit within the State’s administrative structure — a denial which precludes the arbitrament by federal courts of what are only disputes over the local allocation of government functions and powers. See, e. g., Smith v. Indiana, 191 U. S. 138; Braxton County Court v. West Virginia, 208 U. S. 192; Marshall v. Dye, 231 U. S. 250; Stewart v. Kansas City, 239 U. S. 14.

24

223 U. S., at 141. . . [T]he contention, if held to be sound, would necessarily affect the validity, not only of the particular statute which is before us, but of every other statute passed in Oregon since the adoption of the initiative and referendum. And indeed the propositions go further than this, since in their essence they assert that there is no governmental function, legislative or judicial, in Oregon, because it cannot be assumed, if the proposition be well founded, that there is at one and the same time one and the same government which is republican in form and not of that character.” Compare Luther v. Borden, 7 How. 1, 38—39:

“. . . For, if this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned, — if it had been annulled by the adoption of the opposing government, — then the laws passed by its legislature during that time were nullities; its taxes wrongfully collected; its salaries and compensation to its officers illegally paid; its public accounts improperly settled; and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals.

“When the decision of this court might lead to such results, it becomes its duty to examine very carefully its own powers before it undertakes to exercise jurisdiction.”

25

See Bowen, The Recent Contest in Rhode Island (1844); Frieze, A Concise History of the Efforts to Obtain an Extension of Suffrage in Rhode Island; From the Year 1811 to 1842 (2d ed. 1842); Mowry, The Dorr War (1901); Wayland, The Affairs of Rhode Island (2d ed. 1842).

26

The Court reasoned, with respect to the guarantee against domestic violence also contained in Art. IV, §4, that this, too, was an authority committed solely to Congress; that Congress had empowered the President, not the courts, to enforce it; and that it *295was inconceivable that the courts should assume a power to make determinations in the premises which might conflict with those of the Executive. It noted further that, in fact, the President had recognized the governor of the charter government as the lawful authority in Rhode Island, although it had been unnecessary to call out the militia in his support.

27

See note 24, supra.

28

Id., at 39, 46-47.

29

Id., at 41-42.

30

In evaluating the Court’s determination not to inquire into the authority of the charter government, it must be remembered that, throughout the country, Dorr “had received the sympathy of the Democratic press. His cause, therefore, became distinctly a party issue.” 2 Warren, The Supreme Court in United States History (Rev. ed. 1937), 186.

31

Appellants also allege discrimination in the legislature’s allocation of certain tax burdens and benefits. Whether or not such discrimination would violate the Equal Protection Clause if the tax statutes were challenged in a proper proceeding, see Dane v. Jackson, 256 U. S. 589; cf. Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249, 268, these recitative allegations do not affect the nature of the controversy which appellants’ complaints present.

32

Appellants would find a “right” to have one’s ballot counted on authority of United States v. Mosley, 238 U. S. 383; United States v. Classic, 313 U. S. 299; United States v. Saylor, 322 U. S. 385. All that these cases hold is that conspiracies to commit certain sharp election practices which, in a federal election, cause ballots not to receive the weight which the law has in fact given them, may amount to deprivations of the constitutionally secured right to vote for federal officers. But see United States v. Bathgate, 246 U. S. 220. The cases do not so much as suggest that there exists a constitutional limitation upon the relative weight to which the law might properly entitle respective ballots, even in federal elections.

33

Mackenzie, Free Elections (1958) (hereafter, Mackenzie), 108.

34

Ogg, English Government and Politics (2d ed. 1936) (hereafter, Ogg), 248-250, 257; Seymour, Electoral Reform in England and Wales (1915) (hereafter, Seymour), 46-47.

35

Ogg 257-259; Seymour 45-52; Carpenter, The Development of American Political Thought (1930) (hereafter, Carpenter), 45-46.

36

Ogg 258.

37

Seymour 51.

38

The Federalist, No. 56 (Wright ed. 1961), at 382. Compare Seymour 49. This takes account of the restricted franchise as well as the effect of the local-unit apportionment principle.

39

Seymour 52-76.

40

Ogg 26-4-265; Seymour 318-319.

41

For these and other instances of gross inequality, see Seymour 320-325.

42

Seymour 333-346; Ogg 265.

43

Seymour 349, 490-491.

44

Seymour 489-518.

45

Mackenzie 108; see also Seymour 513-517.

46

Ogg 270.

47

Ogg 253.

48

Ogg 270-271.

49

Ogg 273-274.

50

7 & 8 Geo. VI, c. 41. The 1944 Act was amended by the House of Commons (Redistribution of Seats) Act, 1947, 10 & 11 Geo. VI, c. 10, and the two, with other provisions, were consolidated in the House of Commons (Redistribution of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, since amended by the House of Commons (Redistribution of Seats) Act, 1958, 6 & 7 Eliz. II, c. 26.

51

See generally Butler, The Redistribution of Seats, 33 Public Administration 125 (1955).

52

See note 50, supra. However, Commissions are given discretion to depart from the strict application of the local boundary rule to avoid excessive disparities between the electorate of a constituency and the electoral quota, or between the electorate of a constituency and that of neighboring constituencies. For detailed discussion, see Craig, Parliament and Boundary Commissions, [1959] Public Law 23. See also Butler, supra, note 51, at 127.

53

Mackenzie 108, 113.

54

The Times, Dee. 15, 1954, p. 4, cols 3-4.

55

[1955] 1 Ch. 238.

56

The court reserved the question whether a judicial remedy might be found in a case in which it appeared that a Commission had manifestly acted in complete disregard of the Acts.

57

Note 50, supra.

58

First Periodical Report of the Boundary Commission for England [Cmd. 9311] (1954), 4, par. 19.

59

Under the 1949 Act, see note 50, supra, the intervals between reports were to be not less than three nor more than seven years, with certain qualifications. The 1958 Act raised the minimum to ten and the maximum to fifteen years.

60

First Periodical Report, supra, note 58, at 4, par. 20.

61

582 H. C. Deb. (5th ser. 1957-1958), 230.

62

See The Federalist, No. 56, supra, note 38; Tudor, Life of James Otis (1823), 188-190.

63

Griffith, The Rise and Development of the Gerrymander (1907) (hereafter, Griffith), 23-24.

64

Luce, Legislative Principles (1930) (hereafter, Luce), 336-342.

65

Griffith 25.

66

Griffith 15-16, n. 1.

67

Griffith 28.

68

Carpenter 48-49, 54; Griffith 26, 28-29; Luce 339-340.

69

Carpenter 87; Griffith 26-29, 31.

70

II Farrand, Records of the Federal Convention (1911), 241.

71

The power was provided. Art. I, §4, cl. 1.

72

III Elliot’s Debates (2d ed. 1891), 367; II id., at 50-51.

73

See Madison, in I Farrand, op. cit., supra, note 70, at 321: “The great difficulty lies in the affair of Representation; and if this could be adjusted, all others would be surmountable.”

74

See The Federalist, No. 62 (Wright ed. 1961), at 408-409.

75

See The Federalist, No. 54, id., at 369-374.

76

Carpenter 130.

77

Jefferson, Notes on the State of Virginia (Peden ed. 1955), 118-119. See also II Writings of Thomas Jefferson (Memorial ed. 1903), 160-162.

78

Carpenter 139-140.

79

Griffith 102-104.

80

Griffith 104-105.

81

Luce 343-350. Bowen, supra, note 25, at 17-18, records that in 1824 Providence County, having three-fifths of Rhode Island’s population, elected only twenty-two of its seventy-two representatives, and that the town of Providence, more than double the size of Newport, had half Newport’s number of representatives.

82

Carpenter 130-137; Luce 364-367; Griffith 116-117.

83

See 14 Stat. 428; 15 Stat. 2, 14, 41.

84

Various indices of population were employed among the States which took account of the factor of numbers. Some counted all inhabitants, e. g., N. J. Const., 1844, Art. IV, § 3; some, only white inhabitants, e. g., Ill. Const., 1848, Art. III, § 8; some, male inhabitants over twenty-one, e. g., Ind. Const., 1851, Art. IV, §§ 4-5; some, qualified voters, e. g., Tenn. Const., 1834, Art. II, §§4 to 6; some excluded aliens, e. g., N. Y. Const., 1846, Art. II, §§ 4, 5 (and untaxed persons of color); some excluded untaxed Indians and military personnel, e. g., Neb. Const., 1866-1867, Art. II, §3. For present purposes these differences, although not unimportant as revealing fundamental divergences in representation theory, will be disregarded.

85

Ore. Const., 1857, Art. IV, §§ 5, 6, 7; Ill. Const., 1848, Art. III, §§ 8, 9; Ind. Const., 1851, Art. IV, §§ 4, 5, 6; Minn. Const., 1857, *312Art. IV, § 2; Wis. Const., 1848, Art. IV, §§ 3 to 5; Mass. Const., 1780, Amends. XXI, XXII; Neb. Const., 1866-1867, Art.. II, § 3. All of these but Minnesota made provision for periodic reapportionment. Nevada’s Constitution of 1864, Art. XV, § 13, provided that the federal censuses and interim state decennial enumerations should serve as the bases of representation for both houses, but did not expressly require either numerical equality or reapportionment at fixed intervals.

Several of these constitutions contain provisions which forbid splitting counties or which otherwise require recognition of local boundaries. See, e. g., the severe restriction in Ill. Const., 1848, Art. Ill, § 9. Such provisions will almost inevitably produce numerical inequalities. See, for example, University of Oklahoma, Bureau of Government Research, Legislative Apportionment in Oklahoma (1956), 21-23. However, because their effect in this regard will turn on idiosyncratic local factors, and because other constitutional provisions are a more significant source of inequality, these provisions are here disregarded.

86

Tenn. Const., 1834, Art. II, §§ 4 to 6 (two-thirds of a ratio entitles a co.unty to one representative in the House); W. Va. Const., 1861-1863, Art. IV, §§ 4, 5, 7, 8, 9 (one-half of a ratio entitles a county to one representative in the House); Mich. Const., 1850, Art. IV, §§ 2 to 4 (one-half of a ratio entitles each county thereafter organized to one representative in the House). In Oregon and Iowa a major-fraction rule applied which gave a House seat not only to counties having a moiety of a single ratio, but to all counties having more than half a ratio in excess of the multiple of a ratio. Ore. Const., 1857, Art. IV, § 6, note 85, supra; Iowa Const., 1857, Art. III, §§ 33, 34, 35, 37, note 89, infra.

87

See Bone, States Attempting to Comply with Reapportionment Requirements, 17 Law & Contemp. Prob. 387, 391 (1952).

88

It also appears, although the section is not altogether clear, that the provisions of West Virginia’s Constitution controlling apportionment of senators would operate in favor of the State’s less populous regions by limiting any single county to a maximum of two senators. W. Va. Const., 1861-1863, Art. IV, § 4.

89

Iowa Const., 1857, Art. III, §§ 33, 34, 35, 37.

90

N. Y. Const., 1846, Art. III, §§ 4, 5 (except Hamilton County); Kan. Const., 1859, Art. 2, § 2; Art. 10. The Kansas provisions require periodic apportionment based on censuses, but do not in terms demand equal districts.

91

Ohio Const., 1851, Art. XI, §§ 1 to 5. See Art. XI, §§ 6 to 9 for Senate apportionment.

92

Me. Const., 1819, Art. IV, Pt. First, §§ 2, 3. See Art. IV, Pt. Second, § 2, for Senate apportionment based on numbers.

93

Mo. Const., 1865, Art. IV, §§ 2, 7, 8. See Art. IV, §§ 4 to 8, for Senate apportionment based on numbers.

94

Towns smaller than one hundred and fifty, if so situated that it was “very inconvenient” to join them to other towns for voting purposes, might be permitted by the legislature to send a representative.

95

N. H. Const., 1792, Pt. Second, §§ IX to XI; Pt. Second, § XXVI.

96

Pa. Const., 1838, as amended, Art. I, §§ 4, 6, 7.

97

Conn. Const., 1818, Art. Third, § 3.

98

Vt. Const., 1793, c. II, § 7.

99

R. I. Const., 1842, Art. VI, § 1.

100

N. J. Const., 1844, Art. IV, § 2, cl. One.

101

Conn. Const., 1818, Amend. II.

102

Vt. Const., 1793, Amend. 23.

103

N. J. Const., 1844, Art. IV, § 3, cl. One.

104

R. I. Const., 1842, Art. V, § 1.

105

Ark. Const., 1868, Art. V, §§ 8, 9; Va. Const., 1864, Art. IV, § 6 (this constitution was in effect when Virginia ratified the Fourteenth Amendment); Va. Const., 1870, Art. V, § 4 (this was Virginia’s Reconstruction-Act convention constitution); Miss. Const., 1868, Art. IV, §§ 33 to 35; Tex. Const., 1868, Art. III, §§ 11, 34. The Virginia Constitutions and Texas’ provisions for apportioning its lower chamber do not in terms require equality of numbers, although they call for reapportionment following a census. In Arkansas, the legislature was authorized, but not commanded, to reapportion periodically; it is not clear that equality was required.

106

N. C. Const., 1868, Art. II, §§ 6, 7. See Art. II, § 5, for Senate apportionment based on numbers.

107

S. C. Const., 1868, Art. I, § 34; Art. II, §§ 4 to 6.

108

La. Const., 1868, Tit. II, Arts. 20, 21. See Tit. II, Arts. 28 to 30, for Senate apportionment based on numbers.

109

Ala. Const., 1867, Art. VIII, § 1. See Art. VIII, § 3, for Senate apportionment based on numbers.

110

S. C. Const., 1868, Art. II, § 8.

111

Fla. Const., 1868, Art. XIV, par. 1. See Art. XIV, par. 2, for Senate apportionment.

112

Ga. Const., 1868, Art. III, § 2. The extent of legislative authority to alter these districts is unclear, but it appears that the structure of three contiguous counties for each of forty-four districts is meant to be permanent.

113

Ga. Const., 1868, Art. III, § 3. The extent of legislative authority to alter the apportionment is unclear, but it appears that the three-tiered structure is meant to be permanent.

114

See, e. g., Durfee, Apportionment of Representation in the Legislature: A Study of State Constitutions, 43 Mich. L. Rev. 1091, 1097 (1945); Short, States That Have Not Met Their Constitutional Requirements, 17 Law & Contemp. Prob. 377 (1952); Harvey, Reap-portionments of State Legislatures — Legal Requirements, 17 Law & Contemp. Prob. 364, 370 (1952). For an excellent case study of numerical inequalities deriving solely from a one-member-per-county minimum provision in Ohio, see Aumann, Rural Ohio Hangs On, 46 Nat. Mun. Rev. 189, 191-192 (1957).

115

Dauer and Kelsay, Unrepresentative States, 44 Nat. Mun. Rev. 571, 574 (1955). (This is the effect of a later Georgia constitutional provision, Ga. Const., 1945, § 2-1501, substantially similar to that of 1868.) The same three-tiered system has subsequently been adopted in Florida, Fla. Const., 1885, Art. VII, §§ 3, 4, where its effects have been inequalities of the order of eighty to one. Dauer and Kelsay, supra, at 575, 587.

116

The constitutions discussed are those under which the new States entered the Union.

117

Colo. Const., 1876, Art. V, §§ 45, 47; N. D. Const., 1889, Art. 2, §§ 29, 35; S. D. Const., 1889, Art. III, § 5; Wash. Const., 1889, Art. II, §§ 3, 6; Utah Const., 1895, Art. IX, §§ 2, 4; N. M. Const., 1911, Art. IV, following § 41. The Colorado and Utah Constitutions provide for reapportionment “according to ratios to be fixed by law” after periodic census and enumeration. In New Mexico the legislature is authorized, but not commanded, to reapportion periodically. North Dakota does not in terms demand equality in House representation; members are to be assigned among the several senatorial districts, which are of equal population.

118

Wyo. Const., 1889, Art. III, Legislative Department, § 3; Art. III, Apportionment, §§ 2, 3.

119

Idaho Const., 1889, Art. III, § 4.

120

Okla. Const., 1907, Art. V, § 10 (b) to (j). See Art. V, §§ 9 (a), 9 (b) for Senate apportionment based on numbers.

121

Mont. Const., 1889, Art. VI, §§ 2, 3.

122

Mont. Const., 1889, Art. V, §4; Art. VI, §4. The effective provisions are, first, that there shall be no more than one senator from each county, and, second, that no senatorial district shall consist of more than one county.

123

Alaska Const., 1956, Art. VI, § 7; Art. XIV, § 2. The exact boundaries of the districts may be modified to conform to changes in House districts, but their numbers of senators and their approximate perimeters are to be preserved.

124

Hawaii Const., 1950, Art. III, § 2.

125

Alaska Const., 1956, Art. VI, §§ 3, 4, 6. The method of equal proportions is used.

126

Hawaii Const., 1950, Art. III, § 4. The method of equal proportions is used, and, for sub-apportionment within the four “basic” areas, a form of moiety rule obtains.

127

Ariz. Const., 1910, Art. IV, Pt. 2, §1. On the basis of 1910 census figures, this apportionment yielded, for example, a senatorial-ratio differential of more than four to one between Mohave and Cochise or between Mohave and Maricopa Counties. II Thirteenth Census of the United States (1910), 71-73.

128

The pertinent state constitutional provisions are set forth in tabular form in XIII Book of the States (1960-1961), 54-58; and Greenfield, Ford and Emery, Legislative Reapportionment: California in National Perspective (University of California, Berkeley, 1959), 81-85. An earlier treatment now outdated in several respects but still useful is Durfee, supra, note 114. See discussions in Harvey, supra, note 114; Shull, Political and Partisan Implications of State Legislative Apportionment, 17 Law & Contemp. Prob. 417, 418-421 (1952).

129

Nebraska’s unicameral legislature is included in this count.

130

Greenfield, Ford and Emery, supra, note 128, at 7.

131

Harvey, supra, note 114, at 367. See Tabor, The Gerrymandering of State and Federal Legislative Districts, 16 Md. L. Rev. 277, 282-283 (1956).

132

See, e. g., Mather and Ray, The Iowa Senatorial Districts Can Be Reapportioned — A Possible Plan, 39 Iowa L. Rev. 535, 536-537 (1954).

133

See, e. g., Walter, Reapportionment and Urban Representation, 195 Annals of the American Academy of Political and Social Science 11, 12-13 (1938); Bone, supra, note 87. Legislative inaction and state constitutional provisions rejecting the principle of equal numbers have both contributed to the generally prevailing numerical inequality of representation in this country. Compare Walter, supra, with Baker, One Vote, One Value, 47 Nat. Mun. Rev. 16, 18 (1958).

134

See, e. g., Griffith 116-117; Luce 364-367, 370; Merriam, American Political Ideas (1929), 244-245; Legislation, Apportionment of the New York State Senate, 31 St. John’s L. Rev. 335, 341-342 (1957).

135

In 1947, the Boundary Commission for England, “. . . impressed by the advantages of accessibility [that large compact urban regions] . . . enjoy over widely scattered rural areas . . . came to the conclusion that they could conveniently support electorates in excess of the electoral quota, and would in the majority of cases prefer to do so rather than suffer severance of local unity for parliamentary purposes” — that “in general urban constituencies could more conveniently support large electorates than rural constituencies . . . .” Initial Report of the Boundary Commission for England [Cmd. 7260] (1947), 5. See also Mackenzie 110-111; De Grazia, General Theory of Apportionment, 17 Law & Contemp. Prob. 256, 261-262 (1952).

136

See Walter, supra, note 133; Walter, Reapportionment of State Legislative Districts, 37 Ill. L. Rev. 20, 37-38 (1942). The urban-rural conflict is often the core of apportionment controversy. See Durfee, supra, note 114, at 1093-1094; Short, supra, note 114, at 381.

137

Baker, Rural Versus Urban Political Power (1955), 11-19; MacNeil, Urban Representation in State Legislatures, 18 State Government 59 (1945); United States Conference of Mayors, Government Of the People, By the People, For the People (ca. 1947).

138

See, in addition to the authorities cited in notes 130, 131, 136 and 137, supra, and 140 to 144, infra, (all containing other examples than those remarked in text), Hurst, The Growth of American Law, The Law Makers (1950), 41-42; American Political Science Assn., Committee on American Legislatures, American State Legislatures (Zeller ed. 1954), 34-35; Gosnell, Democracy, The Threshold of Freedom (1948), 179-181; Lewis, Legislative Apportionment and the Federal Courts, 71 Harv. L. Rev. 1057, 1059-1064 (1958); Friedman, Reapportionment Myth, 49 Nat. Civ. Rev. 184,185-186 (1960); 106 Cong. Rec. 14901-14916 (remarks of Senator Clark and supporting materials); H. R. Rep. No. 2533, 85th Cong., 2d Sess. 24; H. R. Doc. No. 198, 84th Cong., 1st Sess. 38-40; Hadwiger, Representation in the Missouri General Assembly, 24 Mo. L. Rev. 178, 180-181 (1959); Hamilton, Beardsley and Coats, Legislative Reapportionment in Indiana: Some Observations and a Suggestion, 35 Notre Dame Law. 368-370 (1960); Corter, Pennsylvania Ponders Apportionment, 32 Temple L. Q. 279, 283-288 (1959). Concerning the classical gerrymander, see Griffith, passim; Luce 395-404; Brooks, Political Parties and Electoral Problems (3d ed. 1933), 472-481. For foreign examples of numerical disproportion, see Hogan, Election and Representation (1945), 95; Finer, Theory and Practice of Modern Government (Rev. ed. 1949), 551-552.

139

Baker, supra, note 137, at 11. Recent New Jersey legislation provides for reapportionment of the State’s lower House by executive action following each United States census subsequent to that of 1960. N. J. Laws 1961, c. 1. The apportionment is to be made on the basis of population, save that each county is assured at least one House seat. In the State’s Senate, however, by constitutional command, each county elects a single senator, regardless of population. N. J. Const., 1947, Art. IV, § II, par. 1.

140

Note, 42 Minn. L. Rev. 617, 618-619 (1958).

141

Greenfield, Ford and Emery, supra, note 128, at 3.

142

University of Oklahoma, Bureau of Government Research, The Apportionment Problem in Oklahoma (1959), 16-29.

143

1 Labor’s Economic Rev. 89, 96 (1956).

144

Dauer and Kelsay, Unrepresentative States, 44 Nat. Mun. Rev. 571, 572, 574 (1955).

145

See the Second Schedule to the House of Commons (Redistribution of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, as amended by the House of Commons (Redistribution of Seats) Act, 1958, 6 & 7 Eliz. II, c. 26, § 2, and the English experience described in text at notes 50 to 61, supra. See also the Report of the Assembly Interim Committee on Elections and Reapportionment, California Assembly (1951) (hereafter, California Committee Report), 37: “The geographic — the socio-economic — the desires of the people — the desires of the elected officeholders — the desires of political parties — all these can and do legitimately operate not only within the framework of the ‘relatively equal in population districts’ factor, but also within the factors of contiguity and compactness. The county and Assembly line legal restrictions operate outside the framework of theoretically ‘equal in population districts.’ All the factors might conceivably have the same weight in one situation; in another, some factors might be considerably more important than others in making the final determination.” A Virginia legislative committee adverted to “. . . many difficulties such as natural topographical barriers, divergent business and social interests, lack of communication by rail or highway, and disinclinations of communities to breaking up political ties of long standing, resulting in some cases of districts requesting to remain with populations more than their averages rather than have their equal *324representation with the changed conditions.” Report of the Joint Committee on the Re-apportionment of the State into Senatorial and House Districts, Virginia General Assembly, House of Delegates, H. Doc. No. 9 (1922), 1-2. And the Tennessee State Planning Commission, concerning the problem of congressional redistricting in 1950, spoke of a “tradition [which] relates to the sense of belonging- — loyalties to groups and items of common interest with friends and fellow citizens of like circumstance, environment or region.” Tennessee State Planning Commission, Pub. No. 222, Redistricting for Congress (1950), first page.

146

See, e. g., California Committee Report, at 52.

"... [T]he reapportionment process is, by its very nature, political. . . . There will be politics in reapportionment as long as a representative form of government exists ....

“It is impossible to draw a district boundary line without that line’s having some political significance. . . .”

147

See, e. g., Celler, Congressional Apportionment — Past, Present, and Future, 17 Law & Contemp. Prob. 268 (1952), speaking of the history of congressional apportionment:

“. . .A mere reading of the debates [from the Constitutional Convention down to contemporary Congresses] on this question of apportionment reveals the conflicting interests of the large and small states and the extent to which partisan politics permeates the entire problem.”

148

See Standards for Congressional Districts (Apportionment), Hearings before Subcommittee No. 2 of the Committee on the *325Judiciary, House of Representatives, 86th Cong., 1st Sess. 23, concerning a proposed provision for judicial enforcement of certain standards in the laying out of districts:

“Mr. Kasem. You do not think that that [a provision embodying the language: ‘in as compact form as practicable’] might result in a decision depending upon the political inclinations of the judge?

“Mr. Celler. Are you impugning the integrity of our Federal judiciary?

“Mr. Kasem. No; I just recognize their human frailties.”

For an instance of a court torn, in fact or fancy, over the political issues involved in reapportionment, see State ex rel. Lashly v. Becker, 290 Mo. 560, 235 S. W. 1017, and.especially the dissenting opinion of Higbee, J., 290 Mo., at 613, 235 S. W., at 1037.

149

See text at notes 139-143, supra.

150

Decisions of state courts which have entertained apportionment cases under their respective state constitutions do not, of course, involve the very different considerations relevant to federal judicial intervention. State-court adjudication does not involve the delicate problems of federal-state relations which would inhere in the exercise of federal judicial power to impose restrictions upon the States’ shaping of their own governmental institutions. Moreover, state constitutions generally speak with a specificity totally lacking in attempted utilization of the generalities of the Fourteenth Amendment to apportionment matters. Some expressly commit apportionment to state judicial review, see, e. g., N. Y. Const., 1938, Art. III, § 5, and even where they do not, they do precisely fix the criteria for judicial judgment respecting the allocation of representative strength within the electorate. See, e. g., Asbury Park Press. Inc., v. Woolley, 33 N. J. 1, 161 A. 2d 705.

151

Appellants’ suggestion that, although no relief may need be given, jurisdiction ought to be retained as a “spur” to legislative action does not merit discussion.

152

See note 24, supra.

Dissenting opinion of

Mr. Justice Harlan,

whom Mr. Justice Frankfurter joins.

The dissenting opinion of Mr. Justice Frankfurter, in which I join, demonstrates the abrupt departure the majority makes from judicial history by putting the federal courts into this area of state concerns — an area which, in this instance, the Tennessee state courts themselves have refused to enter.

It does not detract from his opinion to say that the panorama of judicial history it unfolds, though evincing a steadfast underlying principle of keeping the federal courts out of these domains, has a tendency, because of variants in expression, to becloud analysis in a given case. With due respect to the majority, I think that has happened here.

Once one cuts through the thicket of discussion devoted to “jurisdiction,” “standing,” “justiciability,” and “po*331litical question,” there emerges a straightforward issue which, in my view, is determinative of this case. Does the complaint disclose a violation of a federal constitutional right, in other words, a claim over which a United States District Court would have jurisdiction under 28 U. S. C. § 1343 (3) and 42 U. S. C. § 1983? The majority opinion does not actually discuss this basic question, but, as one concurring Justice observes, seems to decide it “sub silentio.” Ante, p. 261. However, in my opinion, appellants’ allegations, accepting all of them as true, do not, parsed down or as a whole, show an infringement by Tennessee of any rights assured by the Fourteenth Amendment. Accordingly, I believe the complaint should have been dismissed for “failure to state a claim upon which relief can be granted.” Fed. Rules Civ. Proc., Rule 12 (b) (6).

It is at once essential to recognize this case for what it is. The issue here relates not to a method of state electoral apportionment by which seats in the federal House of Representatives are allocated, but solely to the right of a State' to fix the "basis of representation in its own legislature. Until it is first decided to what extent that right is limited by the Federal Constitution, and whether what Tennessee has done or failed to do in this instance runs afoul of any such limitation, we need not reach the issues of “justiciability” or “political question” or any of the other considerations which in such cases as Colegrove v. Green, 328 U. S. 549, led the Court to decline to adjudicate a challenge to a state apportionment affecting seats in the federal House of Representatives, in the absence of a controlling Act of Congress. See also Wood v. Broom, 287 U. S. 1.

The appellants’ claim in this case ultimately rests entirely on the Equal Protection Clause of the Fourteenth Amendment. It is asserted that Tennessee has violated the Equal Protection Clause by maintaining in effect a *332system of apportionment that grossly favors in legislative representation the rural sections of the State as against its urban communities. Stripped to its essentials the complaint purports to set forth three constitutional claims of varying breadth:

(1) The Equal Protection Clause requires that each vote cast in state legislative elections be given approximately equal weight.

(2) Short of this, the existing apportionment of state legislators is so unreasonable as to amount to an arbitrary and capricious act of classification on the part of the Tennessee Legislature, which is offensive to the Equal Protection Clause.

(3) In any event, the existing apportionment is rendered invalid under the Fourteenth Amendment because it flies in the face of the Tennessee Constitution.

For reasons given in Mr. Justice Frankfurter’s opinion, ante, pp. 325-327, the last of these propositions is manifestly untenable, and need not be dealt with further. I turn to the other two.

I.

I can find nothing in the Equal Protection Clause or elsewhere in the Federal Constitution which expressly or impliedly supports the view that state legislatures must be so structured as to reflect with approximate equality the voice of every voter. Not only is that proposition refuted by history, as shown by my Brother Frankfurter, but it strikes deep into the heart of our federal system. Its acceptance would require us to turn our backs on the regard which this Court has always shown for the judgment of state legislatures and courts on matters of basically local concern.

*333In the last analysis, what lies at the core of this controversy is a difference of opinion as to the function of representative government. It is surely beyond argument that those who have the responsibility for devising a system of representation may permissibly consider that factors other than bare numbers should be taken into account. The existence of the United States Senate is proof enough of that. To consider that we may ignore the Tennessee Legislature’s judgment in this instance because that body was the product of an asymmetrical electoral apportionment would in effect be to assume the very conclusion here disputed. Hence we must accept the present form of the Tennessee Legislature as the embodiment of the State’s choice, or, more realistically, its compromise, between competing political philosophies. The federal courts have not been empowered by the Equal Protection Clause to judge whether this resolution of the State’s internal political conflict is desirable or undesirable, wise or unwise.

With respect to state tax statutes and regulatory measures, for example, it has been said that the “day is gone when this Court uses the . . . Fourteenth Amendment to strike down state laws . . . because they may be unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical Co., 348 U. S. 483, 488. I would think it all the more compelling for us to follow this principle of self-restraint when what is involved is the freedom of a State to deal with so intimate a concern as the structure of its own legislative branch. The Federal Constitution imposes no limitation on the form which a state government may take other than generally committing to the United States the duty to guarantee to every State “a Republican Form of Government.” And, as my Brother Frankfurter so conclusively proves (ante, pp. 308-317), no intention to fix immutably the *334means of selecting representatives for state governments could have been in the minds of either the Founders or the draftsmen of the Fourteenth Amendment.

In short, there is nothing in the Federal Constitution to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people. I would have thought this proposition settled by MacDougall v. Green, 335 U. S. 281, in which the Court observed (at p. 283) that to “assume that political power is a function exclusively of numbers is to disregard the practicalities of government,” and reaffirmed by South v. Peters, 339 U. S. 276. A State’s choice to distribute electoral strength among geographical units, rather than according to a census of population, is certainly no less a rational decision of policy than would be .its choice to levy a tax on property rather than a tax on income. Both are legislative judgments entitled to equal respect from this Court.

II.

The claim that Tennessee’s system of apportionment is so unreasonable as to amount to a capricious classification of voting strength stands up no better under dispassionate analysis.

The Court has said time and again that the Equal Protection Clause does not demand of state enactments either mathematical identity or rigid equality. E. g., Allied Stores of Ohio v. Bowers, 358 U. S. 522, 527-528, and authorities there cited; McGowan v. Maryland, 366 U. S. 420, 425-426. All that is prohibited is “invidious discrimination” bearing no rational relation to any permissible policy of the State. Williamson v. Lee Optical Co., supra, at 489. And in deciding whether such discrimination has been practiced by a State, it must be borne in mind that a “statutory discrimination will not be set aside if any state of facts reasonably may be con*335ceived to justify it.” McGowan v. Maryland, supra. It is not inequality alone that calls for a holding of unconstitutionality; only if the inequality is based on an impermissible standard may this Court condemn it.

What then is the basis for the claim made in this case that the distribution of state senators and representatives is the product of capriciousness or of some constitutionally prohibited policy? It is not that Tennessee has arranged its electoral districts with a deliberate purpose to dilute the voting strength of one race, cf. Gomillion v. Lightfoot, 364 U. S. 339, or that some religious group is intentionally underrepresented. Nor is it a charge that the legislature has indulged in sheer caprice by allotting representatives to each county on the basis of a throw of the dice, or of some other determinant bearing no rational relation to the question of apportionment. Rather, the claim is that the State Legislature has unreasonably retained substantially the same allocation of senators and representatives as was established by statute in 1901, refusing to recognize the great shift in the population balance between urban and rural communities that has occurred in the meantime.

It is further alleged that even as of 1901 the apportionment was invalid, in that it did not allocate state legislators among the counties in accordance with the formula set out in Art. II, § 5, of the Tennessee Constitution. In support of this the appellants have furnished a Table which indicates that as of 1901 six counties were overrepresented and 11 were underrepresented. But that Table in fact shows nothing in the way of significant discrepancy; in the instance of each county it is only one representative who is either lacking or added. And it is further perfectly evident that the variations are attributable to nothing more than the circumstance that the then enumeration of voters resulted in fractional remainders with respect to which the precise formula of the Tennessee Constitution was in some *336instances slightly disregarded. Unless such de minimis departures are to be deemed of significance, these statistics certainly provide no substantiation for the charge that the 1901 apportionment was arbitrary and capricious. Indeed, they show the contrary.

Thus reduced to its essentials, the charge of arbitrariness and capriciousness rests entirely on the consistent refusal of the Tennessee Legislature over the past 60 years to alter a pattern of apportionment that was reasonable when conceived.

A Federal District Court is asked to say that the passage of time has rendered the 1901 apportionment obsolete to the point where its continuance becomes vulnerable under the Fourteenth Amendment. But is not this matter one that involves a classic legislative judgment? Surely it lies within the province of a state legislature to conclude that an existing allocation of senators and representatives constitutes a desirable balance of geographical and demo-graphical representation, or that in the interest of stability of government it would be best to defer for some further time the redistribution of seats in the state legislature.

Indeed, I would hardly think it unconstitutional if a state legislature’s expressed reason for establishing or maintaining an electoral imbalance between its rural and urban population were to protect the State’s agricultural interests from the sheer weight of numbers of those residing in its cities. A State may, after all, take account of the interests of its rural population in the distribution of tax burdens, e. g., American Sugar Rfg. Co. v. Louisiana, 179 U. S. 89, and recognition of the special problems of agricultural interests has repeatedly been reflected in federal legislation, e. g., Capper-Volstead Act, 42 Stat. 388; Agricultural Adjustment Act of 1938, 52 Stat. 31. Even the exemption of agricultural activities from state criminal statutes of otherwise general application has not been deemed offensive to the Equal Protection Clause. *337Tigner v. Texas, 310 U. S. 141. Does the Fourteenth Amendment impose a stricter limitation upon a State’s apportionment of political representatives to its central government? I think not. These are matters of local policy, on the wisdom of which the federal judiciary is neither permitted nor qualified to sit in judgment.

The suggestion of my Brother Frankfurter that courts lack standards by which to decide such cases as this, is relevant not only to the question of “justiciability,” but also, and perhaps more fundamentally, to the determination whether any cognizable constitutional claim has been asserted in this case. Courts are unable to decide when it is that an apportionment originally valid becomes void because the factors entering into such a decision are basically matters appropriate only for legislative judgment. And so long as there exists a possible rational legislative policy for retaining an existing apportionment, such a legislative decision cannot be said to breach the bulwark against arbitrariness and caprice that the Fourteenth Amendment affords. Certainly, with all due respect, the facile arithmetical argument contained in Part II of my Brother Clark’s separate opinion (ante, pp. 253-258) provides no tenable basis for considering that there has been such a breach in this instance. (See the Appendix to this opinion.)

These conclusions can hardly be escaped by suggesting that capricious state action might be found were it to appear that a majority of the Tennessee legislators, in refusing to consider reapportionment, had been actuated by self-interest in perpetuating their own political offices or by other unworthy or improper motives. Since Fletcher v. Peck, 6 Cranch 87, was decided many years ago, it has repeatedly been pointed out that it is not the business of the federal courts to inquire into the personal motives of legislators. E. g., Arizona v. California, 283 U. S. 423, 455 & n. 7. The function of the federal judiciary ends in *338matters of this kind once it appears, as I think it does here on the undisputed facts, that the state action complained of could have rested on some rational basis. (See the Appendix to this opinion.)

It is my view that the majority opinion has failed to point to any recognizable constitutional claim alleged in this complaint. Indeed, it is interesting to note that my Brother Stewart is at pains to disclaim for himself, and to point out that the majority opinion does not suggest, that the Federal Constitution requires of the States any particular kind of electoral apportionment, still less that they must accord to each voter approximately equal voting strength. Concurring opinion, ante, p. 265. But that being so, what, may it be asked, is left of this complaint? Surely the bare allegations that the existing Tennessee apportionment is “incorrect,” “arbitrary,” “obsolete” and “unconstitutional” — amounting to nothing more than legal conclusions — do not themselves save the complaint from dismissal. See Snowden v. Hughes, 321 U. S. 1; Collins v. Hardyman, 341 U. S. 651. Nor do those allegations shift to the appellees the burden of proving the constitutionality of this state statute; as is so correctly emphasized by my Brother Stewart {ante, p. 266), this Court has consistently held in cases .arising under the Equal Protection Clause that “ ‘the burden of establishing the unconstitutionality of a statute rests on him who assails it.’ Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580, 584.” (Emphasis added.) Moreover, the appellants do not suggest that they could show at a trial anything beyond the matters previously discussed in this opinion, which add up to nothing in the way of a supportable constitutional challenge against this statute. And finally, the majority’s failure to come to grips with the question whether the complaint states a claim cognizable under the Federal Constitution — an issue necessarily presented by appellees’ motion to dismiss— *339does not of course furnish any ground for permitting this action to go to trial.

From a reading of the majority and concurring opinions one will not find it difficult to catch the premises that underlie this decision. The fact that the appellants have been unable to obtain political redress of their asserted grievances appears to be regarded as a matter which should lead the Court to stretch to find some basis for judicial intervention. While the Equal Protection Clause is invoked, the opinion for the Court notably eschews explaining how, consonant with past decisions, the undisputed facts in this case can be considered to show a violation of that constitutional provision. The majority seems to have accepted the argument, pressed at the bar, that if this Court merely asserts authority in this field, Tennessee and other “malapportioning” States will quickly respond with appropriate political action, so that this Court need not be greatly concerned about the federal courts becoming further involved in these matters. At the same time the majority has wholly failed to reckon with what the future may hold in store if this optimistic prediction is not fulfilled. Thus, what the Court is doing reflects more an adventure in judicial experimentation than a solid piece of constitutional adjudication. Whether dismissal of this case should have been for want of jurisdiction or, as is suggested in Bell v. Hood, 327 U. S. 678, 682-683, for failure of the complaint to state a claim upon which relief could be granted, the judgment of the District Court was correct.

In conclusion, it is appropriate to say that one need not agree, as a citizen, with what Tennessee has done or failed to do, in order to deprecate, as a judge, what the majority is doing today. Those observers of the Court who see it primarily as the last refuge for the correction of all inequality or injustice, no matter what its nature or source, will no doubt applaud this decision and its break *340with the past. Those who consider that continuing national respect for the Court’s authority depends in large measure upon its wise exercise of self-restraint and discipline in constitutional adjudication, will view the decision with deep concern.

I would affirm.

APPENDIX TO OPINION OF

MR. JUSTICE HARLAN.

The Inadequacy op Arithmetical Formulas as Measures op the Rationality op Tennessee’s Apportionment.

Two of the three separate concurring opinions appear to concede that the Equal Protection Clause does not guarantee to each state voter a vote of approximately equal weight for the State Legislature. Whether the existing Tennessee apportionment is constitutional is recognized to depend only on whether it can find “any possible justification in rationality” (ante, p. 265); it is to be struck down only if “the discrimination here does not fit any pattern” (ante, p. 258).

One of the concurring opinions, that of my Brother Stewart, suggests no reasons which would justify a finding that the present distribution of state legislators is unconstitutionally arbitrary. The same is true of the majority opinion. My Brother Clark, on the other hand, concludes that “the apportionment picture in Tennessee is a topsy-turvical of gigantic proportions” (ante, p. 254), solely on the basis of certain statistics presented in the text of his separate opinion and included in a more extensive Table appended thereto. In my view, that analysis is defective not only because the “total representation” formula set out in footnote 7 of the opinion (ante, p. 255), rests on faulty mathematical foundations, but, more basically, because the approach taken wholly *341ignores all other factors justifying a legislative determination of the sort involved in devising a proper apportionment for a State Legislature.

In failing to take any of such other matters into account and in focusing on a particular mathematical formula which, as will be shown, is patently unsound, my Brother Clark’s opinion has, I submit, unwittingly served to bring into bas-relief the very reasons that support the view that this complaint does not state a claim on which relief could be granted. For in order to warrant holding a state electoral apportionment invalid under the Equal Protection Clause, a court, in line with well-established constitutional doctrine, must find that none of the permissible policies and none of the possible formulas on which it might have been based could rationally justify particular inequalities.

I.

At the outset, it cannot be denied that the apportionment rules explicitly set out in the Tennessee Constitution are rational. These rules are based on the following obviously permissible policy determinations: (1) to utilize counties as electoral units; (2)' to prohibit the division of any county in the composition of electoral districts; (3) to allot to each county that has a substantial voting population — at least two-thirds of the average voting population per county — a separate “direct representative” ; (4) to create “floterial” districts (multicounty representative districts) made up of more than one county; and (5) to require that such districts be composed of adjoining counties.1 Such a framework unavoidably *342leads to unreliable arithmetic inequalities under any mathematical formula whereby the counties’ “total representation” is sought to be measured. It particularly results in egregiously deceptive disparities if the formula proposed in my Brother Clark’s opinion is applied.

That formula computes a county’s “total representation” by adding (1) the number of “direct representatives” the county is entitled to elect; (2) a fraction of any other seats in the Tennessee House which are allocated to that county jointly with one or more others in a “floterial district”; (3) triple the number of senators the county is entitled to elect alone; and (4) triple a fraction of any seats in the Tennessee Senate which are allocated to that county jointly with one or more others in a multicounty senatorial district. The fractions used for items (2) and (4) are computed by allotting to each county in a combined district an equal share of the House or Senate seat, regardless of the voting population of each of the counties that make up the election district.2

*343This formula is patently deficient in that it eliminates from consideration the relative voting power of the counties that are joined together in a single election district. As a result, the formula unrealistically assigns to Moore County one-third of a senator, in addition to its direct representative {ante, p. 255), although it must be obvious that Moore’s voting strength in the Eighteenth Senatorial District is almost negligible. Since Moore County could cast only 2,340 votes of a total eligible vote of 30,478 in the senatorial district, it should in truth be considered as represented by one-fifteenth of a senator. Assuming, arguendo, that any “total representation” figure is of significance, Moore’s “total representation” should be 1.23, not 2.3

The formula suggested by my Brother Clark must be adjusted regardless whether one thinks, as I assuredly do not, that the Federal Constitution requires that each vote be given equal weight. The correction is necessary simply to reflect the real facts of political life. It may, of course, be true that the floterial representative’s “function *344is to represent the whole district” {ante, p. 256). But can it be gainsaid that so long as elections within the district are decided not by a county-unit system, in which each county casts one vote, but by adding the total number of individual votes cast for each candidate, the concern of the elected representatives will primarily be with the most populous counties in the district?

II.

I do not mean to suggest that any mathematical formula, albeit an “adjusted” one, would be a proper touchstone to measure the rationality of the present or of appellants’ proposed apportionment plan. For, as the Table appended to my Brother Clark’s opinion so conclusively shows, whether one applies the formula he suggests or one that is adjusted to reflect proportional voting strength within an election district, no plan of apportionment consistent with the principal policies of the Tennessee Constitution could provide proportionately equal “total representation” for each of Tennessee’s 95 counties.

The pattern suggested by the appellants in Exhibits “A” and “B” attached to their complaint is said to be a “fair distribution” which accords with the Tennessee Constitution, and under which each of the election districts represents approximately equal voting population. But even when tested by the “adjusted” formula, the plan reveals gross “total representation” disparities that would make it appear to be a “crazy quilt.” For example, Loudon County, with twice the voting population of Humphreys County would have less representation than Humphreys, and about one-third the representation of Warren County, which has only 73 more voters. Among the more populous counties, similar discrepancies would appear. Although Anderson County has only somewhat over 10% more voters than Blount County, it would have *345approximately 75% more representation. And Blount would have approximately two-thirds the representation of Montgomery County, which has about 13% less voters.4

III.

The fault with a purely statistical approach to the case at hand lies not with the particular mathematical formula used, but in the failure to take account of the fact that a multitude of legitimate legislative policies, along with circumstances of .geography and demography, could account for the seeming electoral disparities among counties. The principles set out in the Tennessee Constitution are just some of those that were deemed significant. Others may have been considered and accepted by those entrusted with the responsibility for Tennessee’s apportionment. And for the purposes of judging constitutionality under the Equal Protection Clause it must be remembered that what is controlling on the issue of “rationality” is not what the State Legislature may actually have considered but what it may be deemed to have considered.

For example, in the list of “horribles” cited by my Brother Clark (ante, p. 255), all the “underrepresented” counties are semiurban: all contain municipalities of over 10,000 population.5 This is not to say, however, that the *346presence of any such municipality within a county necessarily demands that its proportional representation be reduced in order to render it consistent with an “urban versus rural” plan of apportionment. Other considerations may intervene and outweigh the Legislature’s desire to distribute seats so as to achieve a proper balance between urban and rural interests. The size of a county, in terms of its total area, may be a factor.6 Or the location within a county of some major industry may be thought to call for dilution of voting strength.7 Again, the combination of certain smaller counties with their more heavily populated neighbors in senatorial or “floterial” districts may result in apparent arithmetic inequalities.8

More broadly, the disparities in electoral strength among the various counties in Tennessee, both those relied upon by my Brother Clark and others, may be *347accounted for by various economic,9 political,10 and geographic 11 considerations. No allegation is made by the appellants that the existing apportionment is the result of any other forces than are always at work in any legislative process; and the record, briefs, and arguments in this Court themselves attest to the fact that the appellants could put forward nothing further at a trial.

By disregarding the wide variety of permissible legislative considerations that may enter into a state electoral apportionment my Brother Clark has turned a highly complex process into an elementary arithmetical puzzle. *348It is only by blinking reality that such an analysis can stand and that the essentially legislative determination can be made the subject of judicial inquiry.

IV.

Apart from such policies as those suggested which would suffice to justify particular inequalities, there is a further consideration which could rationally have led the Tennessee Legislature, in the exercise of a deliberate choice, to maintain the status quo. Rigidity of an apportionment pattern may be as much a legislative policy decision as is a provision for periodic reapportionment. In the interest of stability, a State may write into its fundamental law a permanent distribution of legislators among its various election districts, thus forever ignoring shifts in population. Indeed, several States have achieved this result by providing for minimum and maximum representation from various political subdivisions such as counties, districts, cities, or towns. See Harvey, Reapportionments of State Legislatures — Legal Requirements, 17 Law & Contemp. Probs. (1952), 364, 368-372.

It is said that one cannot find any rational standard in what the Tennessee Legislature has failed to do over the past 60 years. But surely one need not search far to find rationality in the Legislature’s continued refusal to recognize the growth of the urban population that has accompanied the development of industry over the past half decade. The existence of slight disparities between rural areas does not overcome the fact that the foremost apparent legislative motivation has been to preserve the electoral strength of the rural interests notwithstanding shifts in population. And I understand it to be conceded by at least some of the majority that this policy is not *349rendered unconstitutional merely because it favors rural voters.

Once the electoral apportionment process is recognized for what it is — the product of legislative give-and-take and of compromise among policies that often conflict— the relevant constitutional principles at once put these appellants out of the federal courts.

1

The relevant provisions of the Tennessee Constitution are Art. II, §§ 5 and 6:

“Sec. 5. Apportionment of representatives — The. number of Representatives shall, at the several periods of making the enumeration, be apportioned among the several counties or districts, according to the *342number of qualified voters in each; and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided, that any county having two-thirds of the ratio shall be entitled to one member.

“Sec. 6. Apportionment o/ senators. — The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no counties shall be divided in forming a district.”

2

This formula is not clearly spelled out in the opinion, but it is necessarily inferred from the figures that are presented. Knox County, for example, is said to have a “total representation” of 7.25. It *343elects (1) three direct representatives (value 3.00); (2) one representative from a two-county district (value .50); (3) one direct senator (value 3.00); and (4) one senator in a four-county district (value .75). See Appendix to opinion of Mr. Justice Clark, ante, pp. 262-264.

3

If this “adjusted” formula for measuring “total representation” is applied to the other “horribles” cited in the concurring opinion {ante, p. 255), it reveals that these counties — which purportedly have equal “total representation” but distinctly unequal voting population — do not have the same “total representation” at all. Rather than having the same representation as Rutherford County, Moore County has only about 40% of what Rutherford has. Decatur County has only 55% of the representation of Carter County. While Loudon and Anderson Counties are substantially underrepresented, this is because of their proximity to Knox County, which outweighs their votes in the Sixth Senatorial District and in the Eighth Floterial District.

4

These disparities are as serious, if not more so, when my Brother Clark’s formula is applied to the appellants’ proposal. For example, if the seven counties chosen by him as illustrative are examined as they would be represented under the appellants’ distribution, Moore County, with a voting population of 2,340, is given more electoral strength than Decatur County, with a voting population of 5,563. Carter County (voting population 23,302) has 20% more “total representation” than Anderson County (voting population 33,990), and 33% more than Rutherford County (voting population 25,316).

5

Murfreesboro, Rutherford County (pop. 16,017); Elizabethton, Carter County (pop. 10,754); Oak Ridge, Anderson County (pop. 27,387). Tennessee Blue Book, 1960, pp. 143-149.

6

For example, Carter and Washington Counties are each approximately 60% as large as Maury and Madison Counties in terms of square miles, and this may explain the disparity between their “total representation” figures.

7

For example, in addition to being “semi-urban,” Blount County is the location of the City of Alcoa, where the Aluminum Company of America has located a large aluminum smelting and rolling plant. This may explain the difference between its “total representation” and that of Gibson County, which has no such large industry and contains no municipality as large as Maryville.

8

For example, Chester County (voting population 6,391) is one of those that is presently said to be overrepresented. But under the appellants’ proposal, Chester would be combined with populous Madison County in a “floterial district” and with four others, including Shelby County, in a senatorial district. Consequently, its total representation according to the Appendix to my Brother Clark’s opinion would be .19. (Ante, p. 262.) This would have the effect of disenfranchising all the county’s voters. Similarly, Rhea County’s almost 9,000 voters would find their voting strength so diluted as to be practically nonexistent.

9

For example, it is primarily the eastern portion of the State that is complaining of malapportionment (along with the Cities of Memphis and Nashville). But the eastern section is where industry is principally located and where population density, even outside the large urban areas, is highest. Consequently, if Tennessee is apportioning in favor of its agricultural interests, as constitutionally it was entitled to do, it would pecessarily reduce representation from the east.

10

For example, sound political reasons surely justify limiting the legislative chambers to workable numbers; in Tennessee, the House is set at 99 and the Senate at 33. It might have been deemed desirable, therefore, to set a ceiling on representation from any single county so as not to deprive others of individual representation. The proportional discrepancies among the four counties with large urban centers may be attributable to a conscious policy of limiting representation in this manner.

11

For example, Moore County is surrounded by four counties each of which has sufficient voting population to exceed two-thirds of the average voting population per county (which is the standard prescribed by the Tennessee Constitution for the assignment of a direct representative), thus qualifying for direct representatives. Consequently Moore County must be assigned a representative of its own despite its small voting population because it cannot be joined with any of its neighbors in a multicounty district, and the Tennessee Constitution prohibits combining it with nonadjacent counties. See note 1, supra.

          [Syllabus from pages 486-488 intentionally omitted]

Page 488

          Arthur Kinoy, New York City, and Herbert O. Reid, Washington, D.C., for petitioners.

          Bruce Bromley, New York City, for respondents.

Page 489

           Mr. Chief Justice WARREN delivered the opinion of the Court.

    In November 1966, petitioner Adam Clayton Powell, Jr., was duly elected from the 18th Congressional District of New York to serve in the United States House of Representatives for the 90th Congress. However, pursuant to a House resolution, he was not permitted to take his seat. Powell (and some of the voters of his district) then filed suit in Federal District Court, claiming that the House could exclude him only if it found he failed to meet the standing requirements of age, citizenship, and residence contained in Art. I, § 2, of the Constitution—requirements the House specifically found Powell met—and thus had excluded him unconstitutionally. The District Court dismissed petitioners' complaint 'for want of jurisdiction of the subject matter.' A panel of the Court of Appeals affirmed the dismissal, althougho n somewhat different grounds, each judge filing a separate opinion. We have determined that it was error to dismiss the complaint and that petitioner Powell is entitled to a declaratory judgment that he was unlawfully excluded from the 90th Congress.

  During the 89th Congress, a Special Subcommittee on Contracts of the Committee on House Administration conducted an investigation into the expenditures of the Committee on Education and Labor, of which petitioner

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Adam Clayton Powell, Jr., was chairman. The Special Subcommittee issued a report concluding that Powell and certain staff employees had deceived the House authorities as to travel expenses. The report also indicated there was strong evidence that certain illegal salary payments had been made to Powell's wife at his direction. See H.R. Rep. No. 2349, 89th Cong., 2d Sess., 6—7 (1966). No formal action was taken during the 89th Congress. However, prior to the organization of the 90th Congress, the Democratic members-elect met in caucus and voted to remove Powell as chairman of the Committee on Education and Labor. See H.R. Rep. No. 27 90th Cong., 1st Sess., 1—2 (1967).

          When the 90th Congress met to organize in January 1967, Powell was asked to step aside while the oath was administered to the other members-elect. Following the administration of the oath to the remaining members, the House discussed the procedure to be followed in determining whether Powell was eligible to take his seat. After some debate, by a vote of 363 to 65 the House adopted House Resolution No. 1, which provided that the Speaker appoint a Select Committee to determine Powell's eligibility. 113 Cong. Rec. 26—27. Although the resolution prohibited Powell from taking his seat until the House acted on the Select Committee's report, it did provide that he should receive all the pay and allowances due a member during the period.

          The Select Committee, composed of nine lawyer-members, issued an invitation to Powell to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include Powell's qualifications as to age, citizenship, and residency; his involvement in a civil suit (in which he had been held in contempt); and '(m)atters of * * * alleged official misconduct since January 3, 1961.' See Hearings on

Page 491

H.R. Res. No. 1 before Select Committee Pursuant to H.R. Res. No. 1, 90th Cong., 1st Sess., 5 (1967) (hereinafter Hearings). Powell appeared at the Committee hearing held on February 8, 1967. After the Committee denied in part Powell's request that certain adversary-type procedures be followed,¹ Powell testified. He would, however, give information relating only to his age, citizenship, and residency; upon the advice of counsel, he refused to answer other questions.

          On February 10, 1967, the Select Committee issued another invitation to Powell. In the letter, the Select Committee informed Powell that its responsibility under the House Resolution extended to determining not only whether he met the standing qualifications of Art. I, § 2, but also to 'inquir(ing) into the question of whethr you should be punished or expelled pursuant to the powers granted * * * the House under Article I, Section 5, * * * of the Constitution. In other words, the Select Committee is of the opinion that at the conclusion of the present inquiry, it has authority to report back to the House recommendations with respect to * * * seating, expulsion or other punishment.' See Hearings 110. Powell did

Page 492

not appear at the next hearing, held February 14, 1967. However, his attorneys were present, and they informed the Committee that Powell would not testify about matters other than his eligibility under the standing qualifications of Art. I, § 2. Powell's attorneys reasserted Powell's contention that the standing qualifications were the exclusive requirements for membership, and they further urged that punishment or expulsion was not possible until a member had been seated. See Hearings 111—113.

          The Committee held one further hearing at which neither Powell nor his attorneys were present. Then, on February 23, 1967, the Committee issued its report, finding that Powell met the standing qualifications of Art. I, § 2. H.R.Rep. No. 27, 90th Cong., 1st Sess., 31 (1967). However, the Committee further reported that Powell had asserted an unwarranted privilege and immunity from the processes of the courts of New York; that he had wrongfully diverted House funds for the use of others and himself; and that he had made false reports on expenditures of foreign currency to the Committee on House Administration. Id., at 31—32. The Committee recommended that Powell be sworn and seated as a member of the 90th Congress but that he be censured by the House, fined $40,000 and be deprived of his seniority. Id., at 33.

          The report was presented to the House on March 1, 1967, and the House debated the Select Committee's proposed resolution. At the conclusion of the debate, by a vote of 222 of 202 the House rejected a motion to bring the resolution to a vote. An amendment to the resolution was then offered; it called for the exclusion of Powell and a declaration that his seat was vacant. The Speaker ruled that a majority vote of the House would be sufficient to pass the resolution if it were so

Page 493

amended 113 Cong.Rec. 5020. After further debate, the amendment was adopted by a vote of 248 to 176. Then the House adopted by a vote of 307 to 116 House Resolution No. 278 in its amended form, thereby excluding Powell and directing that the Speaker notify the Governor of New York that the seat was vacant.

          Powell and 13 voters of the 18th Congressional District of New York subsequently instituted this suit in the United States District Court for the District of Columbia. Five members of the House of Representatives were named as defendants individually and 'as representatives of a class of citizens who are presently serving * * * as members of the House of Representatives.' John W. McCormack was named in his official capacity as Speaker, and the Clerk of the House of Representatives, the Sergeant at Arms and the Doorkeeper were named individually and in their official capacities. The complaint alleged that House Resolution No. 278 violated the Constitution, specifically Art. I, § 2, cl. 1, because the resolution was inconsistent with the mandate that the members of the House shall be elected by the people of each State, and Art. I, § 2, cl. 2, which, petitioners alleged, sets forth the exclusive qualifications for membership.² The complaint further alleged that the Clerk of the House threatened to refuse to perform the service for Powell to which a duly elected Congressman is entitled, that the Sergeant at Arms refused to pay Powell his salary, and that the Doorkeeper threatened to deny Powell admission to the House chamber.

Page 494

          Petitioners asked that the three-judge court be convened.³ Further, they requested that the District Court grant a permanent injunction restraining respondents from executing the House Resolution, and enjoining the Speaker from refusing to administer the oath, the Clerk from refusing to perform the duties due a Representative, the Sergeant at Arms from refusing to pay Powell his salary, and the Doorkeeper from refusing to admit Powell to the Chamber.⁴ The complaint also requested a declaratory judgment that Powell's exclusion was unconstitutional.

          The District Court granted respondents' motion to dismiss the complaint 'for want of jurisdiction of the subject matter.' Powell v. McCormack, 266 F. Supp. 354 (D.C.D.C.1967).⁵ The Court of Appeals for the District of Columbia Circuit affirmed on somewhat different grounds, with each judge of the panel filing a separate opinion. Powell v. McCormack, 129 U.S.App.D.C. 354, 395 F.2d 577 (1968). We granted certiorari. 393 U.S. 949, 89 S.Ct. 371, 21 L.Ed.2d 361 (1968). While the case was pending on our docket, the 90th Congress officially terminated and the 91st Congress was seated. In November 1968, Powell was again elected as the representative of the 18th Congressional District of New York, and he was seated by the 91st Congress. The resolution seating Powell also

Page 495

fined him $25,000. See H.R.Res. No. 2, 91st Cong., 1st Sess., 15 Cong.Rec. H21 (daily ed., January 3, 1969). Respondents then filed a suggestion of mootness. We postponed further consideration of this suggestion to a hearing on the merits. 393 U.S. 1060, 89 S.Ct. 713, 21 L.Ed.2d 704 (1969).

          Respondents press upon us a variety of arguments to support the court below; they will be considered in the following order. (1) Events occurring subsequent to the grant of certiorari have rendered this litigation moot. (2) The Speech or Debate Clause of the Constitution, Art. I, § 6, insulates respondents' action from judicial review. (3) The decision to exclude petitioner Powell is supported by the power granted to the House of Representatives to expel a member. (4) This Court lacks subject matter jurisdiction over petitioners' action. (5) Even if subject matter jurisdiction is present, this litigation is not justiciable eitehr under the general criteria established by this Court or because a political question is involved.

          After certiorari was granted, respondents filed a memorandum suggesting that two events which occurred subsequent to our grant of certiorari require that the case be dismissed as moot. On January 3, 1969 the House of Representatives of the 90th Congress officially terminated, and petitioner Powell was seated as a member of the 91st Congress. 115 Cong.Rec. H22 (daily ed., January 3, 1969). Respondents insist that the gravamen of petitioners' complaint was the failure of the 90th Congress to seat Petitioner Powell and that, since the House of Representatives is not a continuing body⁶

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and Powell has now been seated, his claims are moot. Petitioners counter that three issues remain unresolved and thus this litigation presents a 'case o controversy' within the meaning of Art. III:⁷ (1) whether Powell was unconstitutionally deprived of his seniority by his exclusion from the 90th Congress; (2) whether the resolution of the 91st Congress imposing as 'punishment' a $25,000 fine is a continuation of respondents' allegedly unconstitutional exclusion, see H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969); and (3) whether Powell is entitled to salary withheld after his exclusion from the 90th Congress. We conclude that Powell's claim for back salary remains viable even though he has been seated in the 91st Congress and thus find it unnecessary to determine whether the other issues have become moot.⁸

          Simply stated, a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome. See E. Borchard, Declara-

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tory Judgments 35—37 (2d ed. 1941). Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers of America v. Mitchell, 330 U.S. 75, 86—94, 67 S.Ct. 556, 562, 566, 91 L.Ed. 754 (1947); 6A J. Moore, Federal Practice 57.13 (2d ed. 1966). Despite Powell's obvious and continuing interest in his withheld salary, respondents insist that Alejandrino v. Quezon, 271 U.S. 528, 46 S.Ct. 600, 70 L.Ed. 1071 (1926), leaves us no choice but to dismiss this litigation as moot. Alejandrino, a duly appointed Senator of the Philippine Islands, was suspended for one year by a resolution of the Philippine Senate and deprived of all 'prerogatives, privileges and emoluments' for the period of his suspension. The Supreme Court of the Philippines refused to enjoin the suspension. By the time the case reached this Court, the suspension had expired and the Court dismissed as moot Alejandrino's request that the suspension be enjoined. Then, sua sponte,⁹ the Court considered whether the possibility that Alejandrino was entitled to back salary required it 'to retain the case for the purpose of determining whether he (Alejandrino) may not have a mandamus for this purpose.' Id., at 533, 46 S.Ct. 601. Characerizing the issue of Alejandrino's salary as a 'mere incident' to his claim that the suspension was improper, the Court noted that he had not briefed the salary issue and that his request for mandamus did not set out with sufficient clarity the official or set of officials against whom the mandamus should issue. Id., at 533—54 , 46 S.Ct. at 601 602. The Court therefore refused to treat the salary claim and dismissed the entire action as moot.

Page 498

          Respondents believe that Powell's salary claim is also a 'mere incident' to his insistence that he was unconstitutionally excluded so that we should likewise dismiss this entire action as moot. This argument fails to grasp that the reason for the dismissal in Alejandrino was not that Alejandrino's deprivation of salary was insufficiently substantial to prevent the case from becoming moot, but rather that his failure to plead sufficient facts to establish his mandamus claim made it impossible for any court to resolve the mandamus request.¹⁰ By contrast, petitioners' complaint names the official responsible for the payment of congressional salaries and asks for both mandamus and an injunction against that official.¹¹

          Furthermore, even if respondents are correct that petitioners' averments as to injunctive relief are not sufficiently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly unconstitional House resolution. That claim is still unresolved and hotly contested by clearly adverse parties. Declaratory relief has been requested, a form of relief not available

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when Alejandrino was decided.¹² A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. See United Public Workers of America v. Mitchell, supra, at 93, 67 S.Ct. 556, 566; cf. United States v. California, 332 U.S. 19, 25—26, 67 S.Ct. 1658, 1661—1662, 91 L.Ed. 1889 (1947). A declaratory judgment can then be used as a predicate to further relief, including an injunction. 28 U.S.C. § 2202; see Vermont Structural Slate Co. v. Tatko Brothers Slate Co., 253 F.2d 29 (C.A.2d Cir. 1958); United States Lines Co. v. Shaughnessy, 195 F.2d 385 (C.A.2d Cir. 1952). Alejandrino stands only for the proposition that, where one claim has become moot and the pleadings are insufficient to determine whether the plaintiff is entitled to another remedy, the action should be dismissed as moot.¹³ There is no suggestion that petitioners' averments as to declaratory relief are insufficient and Powell's allegedly unconstitutional deprivation of salary remains unresolved.

          Respondents furthe argue that Powell's 'wholly incidental and subordinate' demand for salary is insufficient to prevent this litigation from becoming moot. They suggest that the 'primary and principal relief' sought was the seating of petitioner Powell in the 90th Congress rendering his presumably secondary claims not worthy of judicial consideration. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966), rejects respondents' theory that the mootness of a 'primary' claim requires a conclusion that all 'secondary' claims are moot. At the Bond oral argument it was suggested that the expiration of the session of the Georgia Legislature which excluded Bond had rendered

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the case moot. We replied: 'The State has not pressed this argument, and it could not do so, because the State has stipulated that if Bond succeeds on this appeal he will receive back salary for the term from which he was excluded.' 385 U.S., at 128, 87 S.Ct., at 345, n. 4. Bond is not controlling, argue respondents, because the legislative term from which Bond was excluded did not end until December 31, 1966,¹⁴ and our decision was rendered December 5; further, when Bond was decided, Bond had not as yet been seated while in this case Powell has been.¹⁵ Respondents do not tell us, however, why these factual distinctions create a legally significant difference between Bond and this case. We relied in Bond on the outstanding salary claim, not the facts respondents stress, to hold that the case was not moot.

          Finally, respondents seem to argue that Powell's proper action to recover salary is a suit in the Court of Claims, so that, having brought the wrong action, a dismissal for mootness is appropriate. The short answer to this argument is that it confuses mootness with whether Powell has established a right to recover against the Sergeant at Arms, a question which it is inappropriate to treat at this stage of the litigation.¹⁶

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          Respondents assert that the Speech or Debate Clause of the Constitution, Art. I, § 6,¹⁷ is an absolute bar to petitioners' action. This Court has on four prior occasions—Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967); United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); and Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881)—been called upon to determine if allegedly unconstitutional action taken by legislators or legislatie employees is insulated from judicial review by the Speech or Debate Clause. Both parties insist that their respective positions find support in these cases and tender for decision three distinct issues: (1) whether respondents in participating in the exclusion of petitioner Powell were 'acting in the sphere of legitimate legislative activity,' Tenney v. Brandhove, supra, at 376, 71 S.Ct. at 788; (2) assuming that respondents were so acting, whether the fact that petitioners seek neither damages from any of the respondents nor a criminal prosecution lifts the bar of the clause;¹⁸ and (3) even if this

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action may not be maintained against a Congressman, whether those respondents who are merely employees of the House may plead the bar of the clause. We find it necessary to treat only the last of these issues.

          The Speech or Debate Clause, adopted by the Constitutional Convention without debate or opposition,¹⁹ finds its roots in the conflict between Parliament and the Crown culminating in the Glorious Revolution of 1688 and the English Bill of Rights of 1689.²⁰ Drawing upon this history, we concluded in United States v. Johnson, supra, at 181, 86 S.Ct. at 755, that the purpose of this clause was 'to prevent intimidation (of legislators) by the executive and accountability before a possibly hostile judiciary.' Although the clause sprang from a fear of seditious libel actions instituted by the Crown to punish unfavorable speeches made in Parliament,²¹ we have held that it would be a 'narrow view' to confine the protection of the Speech or Debate Clause to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are 'things generally done in a session of the House by one of its members in relation to the business before it.' Kilbourn v. Thompson, supra, at 204. Furthermore, the clause not only provides a

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defense on the merits but also protects a legislator from the burden of defending himself. Dombrowski v. Eastland, supra, at 85, 87 S.Ct. at 1427; see Tenney v. Brandhove, supra, at 377, 71 S.Ct. at 788.

          Our cases make it clear that the legislative immunity created by the Speech or Debate Clause performs an important function in representative government. It insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation. Thus, in Tenney v. Brandhove, supra, at 373, 71 S.Ct. at 786, the Court quoted the writings of James Wilson as illuminating the reason for legislative immunity: 'In order to enable and encourage a rp resentative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.'²²

          Legislative immunity does not, of course, bar all judicial review of legislative acts. That issue was settled by implication as early as 1803, see Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60, and expressly in Kilbourn v. Thompson, the first of this Court's cases interpreting the reach of the Speech or Debate Clause. Challenged in Kilbourn was the constitutionality of a House Resolution ordering the arrest and imprisonment of a recalcitrant witness who had refused to respond to a subpoena issued by a House investigating committee. While holding that the Speech or Debate Clause barred Kilbourn's action for false imprisonment brought against several members of the House, the Court nevertheless reached the merits of Kilbourn's attack and decided that, since the House had no power to punish for contempt, Kilbourn's imprisonment

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pursuant to the resolution was unconstitutional. It therefore allowed Kilbourn to bring his false imprisonment action against Thompson, the House's Sergeant at Arms, who had executed the warrant for Kilbourn's arrest.

          The Court first articulated in Kilbourn and followed in Dombrowski v. Eastland,²³ the doctrine that, although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts. Despite the fact that petitioners brought this suit against several House employees—the Sergeant at Arms, the Doorkeeper and the Clerk—as well as several Congressmen, respondents argue that Kilbourn and Dombrowski are distinguishable. Conceding that in Kilbourn the presence of the Sergeant at Arms and in Dombrowski the presence of a congressional subcommittee counsel as defendants in the litigation allowed judicial review of the challenged congressional action, respondents urge that both cases concerned an affirmative act performed by the employee outside the House having a direct effect upon a private citizen. Here, they continue, the relief sought relates to actions taken by House agents solely within the House. Alternatively, respondents insist that Kilbourn and Dombrowski prayed for damages while petitioner Powell asks that the Sergeant at Arms disburse funds, an assertedly greater interference with the legislative process. We reject the proffered distinctions.

          That House employees are acting pursuant to express orders of the House does not bar judicial review of the constitutionality of the underlying legislative decision

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Kilbourn decisively settles this question, since the Sergeant at Arms was held liable for false imprisonment even though he did nothing more than execute the House Resolution that Kilbourn be arrested and imprisoned.²⁴ Respondents' suggestions thus ask us to distinguish between affirmative acts of House employees and situations in which the House orders its employees not to act or between actions for damages and claims for salary. We can find no basis in either the history of the Speech or Debate Clause or our cases for either distinction. The purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions A legislator is nom ore or no less hindered or distracted by litigation against a legislative employee calling into question the employee's affirmative action than he would be by a lawsuit questioning the employee's failure to act. Nor is the distraction or hindrance increased because the claim is for salary rather than damages, or because the litigation questions action taken by the employee within rather than without the House. Freedom of legislative activity and the purposes of the Speech or Debate Clause are fully protected if legislators are relieved of the burden of defending themselves.²⁵ In Kilbourn and Dombrowski

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we thus dismissed the action against members of Congress but did not regard the Speech or Debate Clause as a bar to reviewing the merits of the challenged congressional action since congressional employees were also sued. Similarly, though this action may be dismissed against the Congressmen petitioners are entitled to maintain their action against House employees and to judicial review of the propriety of the decision to exclude petitioner Powell.²⁶ As was said in Kilbourn, in language which time has not dimmed:

          'Especially is it competent and proper for this court to consider whether its (the legislature's) proceedings are in conformity with the Constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution; and if they have not, to treat their acts as null and void.' 103 U.S., at 199.

          The resolution excluding petitioner Powell was adopted by a vote in excess of two-thirds of the 434 Members of

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Congress—307 to 116. 113 Cong.Rec. 5037—5038, Article I, § 5, grants the House authority to expel a member 'with the Concurrence of two thirds.'²⁷ Respondents assert that the House may expel a member for any reason whatsoever and that, since a two-thirds vote was obtained, the procedure by which Powell was denied his seat in the 90th Congress should be regarded as an expulsion, not an exclusion. Cautioning us not to exalt form over substance, respondents quote from the concurring opinion of Judge McGowan in the court below:

          'Appellant Powell's cause of action for a judicially compelled seating thus boils down, in my view, to the narrow issue of whether a member found by his colleagues * * * to have engaged in official misconduct must, because of the accidents of timing, be formally admitted before he can be either investigated or expelled. The sponsor of the motion to exclude stated on the floor that he was proceeding on the theory that the power to expel included the power to exclude, provided a 2/3 vote was forthcoming. It was. Therefore, success for Mr. Powell on the merits would mean that the District Court must admonish the House that it is form, not substance, that should govern in great affairs, and accordingly command the House members to act out a charade.' 129 U.S.App.D.C., at 383—384, 395 F.2d, at 606—607.

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          Although respondents repeatedly urge this Court not to speculate as to the reasons for Powell's exclusion, their attempt to equate exclusion with expulsion would require a similar speculation that the House would have voted to expel Powell had it been faced with that question. Powell had not been seated at the time House Resolution No. 278 was debated and passed. After a motion to bring the Select Committee's proposed resolution to an immediate vote had been defeated, an amendment was offered which mandated Powell's exclusion. ²⁸ Mr. Celler, chairman of the Select Committee, then posed a parliamentary inquiry to determine whether a two-thirds vote was necessary to pass the resolution if so amended 'in the sense that it might amount to an expulsion.' 113 Cong.Rec. 5020. The Speaker replied that 'action by a majority vote would be in accordance with the rules.' Ibid. Had the amendment been regarded as an attempt to expel Powell, a two-thirds vote would have been constitutionally required. The Speaker ruled that the House was voting to exclude Powell, and we will not speculate what the result might have been if Powell had been seated and expulsion proceedings subsequently instituted.

          Nor is the distinction between exclusion and expulsion merely one of form. The misconduct for which Powell was charged occurred prior to the convening of the 90th Congress. On several occasions the House has debated whether a member can be expelled for actions taken during a prior Congress and the House's own manual of procedure applicable in the 90th Congress states that 'both Houses have distrusted their power to punish in such cases.' Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., 25 (1967);

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see G. Galloway, History of the House of Representatives 32 (1961). The House rules manual reflects positions taken by prior Congresses. For example, the report of the Select Committee appointed to consider the expulsion of John W. Langley states unequivocally that the House will not expel a member for misconduct committed during an earlier Congress:

          '(I)t must be said that with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member, not even for conviction for an offense. On May 23, 1884, Speaker Carlisle decided that the House had no right to punish a Member for any offense alleged to have been committed previous to the time when he was elected a Member, and added, 'That has been so frequently decided in the House that it is no longer a matter of dispute." H.R.Rep. No. 30, 69th Cong., 1st Sess., 1—2 (1925).²⁹

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          Members of the House having expressed a belief that such strictures apply to its own power to expel, we will not assume that two-thirds of its members would have expelled Powell for his prior conduct had the Speaker announced that House Resolution No. 278 was for expulsion rather than exclusion.³⁰

          Finally, the proceedings which culminated in Powell's exclusion cast considerable doubt upon respondents' assumption that the two-thirds vote necessary to expel would have been mustered. These proceedings have been succinctly described by Congressman Eckhardt:

          'The House voted 202 votes for the previous question³¹ leading toward the adoption of the (Select) Committee report. It voted 222 votes against the previous question, opening the floor for the Curtis Amendment which ultimately excluded Powell.

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                    'Upon adoption of the Curtis Amendment, the vote again fell short of two-thirds, being 248 yeas to 176 nays. Only on the final vote, adopting the Resolution as amended, was more than a two-thirds vote obtained, the vote being 307 yeas to 116 nays. On this last vote, as a practical matter, members who would not have denied Powell a seat if they were given the choice to punish him had to cast an aye vote or else record themselves as opposed to the only punishment that was likely to come before the House. Had the matter come up through the processes of expulsion, it appears that the two-thirds vote woud have failed, and then members would have been able to apply a lesser penalty.' ³²

          We need express no opinion as to the accuracy of Congressman Eckhardt's prediction that expulsion proceedings would have produced a different result. However, the House's own views of the extent of its power to expel

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combined with the Congressman's analysis counsel that exclusion and expulsion are not fungible proceedings. The Speaker ruled that House Resolution No. 278 contemplated an exclusion proceeding. We must reject respondents' suggestion that we overrule the Speaker and hold that, although the House manifested an intent to exclude Powell, its action should be tested by whatever standards may govern an expulsion.

          As we pointed out in Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 699, 7 L.Ed.2d 663 (1962), there is a significant difference between determining whether a federal court has 'jurisdiction of the subject matter' and determining whether a cause over which a court has subject matter jurisdiction is 'justiciable.' The District Court determined that 'to decide this case on the merits * * * would constitute a clear violation of the doctrine of separation of powers' and then dismissed the complaint 'for want of jurisdiction of the subject matter.' Powell v. McCormack, 266 F.Supp. 354, 359, 360 (D.C.D.C.1967). However, as the Court of Appeals correctly recognized, the doctrine of separation of powers is more properly considered in determining whether the case is 'justiciable.' We agree with the unanimous conclusion of the Court of Appeals that the District Court had jurisdiction over the subject matter of this case.³³ However, for reasons set forth in Part VI, infra, we disagree with the Court of Appeals' conclusion that this case is not justiciable.

          In Baker v. Carr, supra, we noted that a federal district court lacks jurisdiction over the subject matter (1) if the

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cause does not 'arise under' the Federal Constitution, laws, or treaties (or fall within one of the other enumerated categories of Art. III); or (2) if it is not a 'case or controversy' within the meaning of that phrase in Art. III; or (3) if the cause is not one described by any jurisdictional statute. And, as in Baker v. Carr, supra, our determination (see Part VI, B(1) infra) that this cause presents no non-justiciable 'political question' disposes of respondents' contentions³⁴ that this cause is not a 'case or controversy.'³⁵

          Respondents first contend that this is not a case 'arising under' the Constitution within the meaning of Art. III. They emphasize that Art. I, § 5, assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior. Respondents also note that under Art. I, § 3, the Senate has the 'sole power' to try all impeachments. Respondents argue that these delegations (to 'judge,' to 'punish,' and to 'try') to the Legislative Branch are explicit grants of 'judicial power' to the Congress and constitute specific exceptions

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to the general mandate of Art. III that the 'judicial power' shall be vested in the federal courts. Thus, respondents maintain, the 'power conferred on the courts by article III does not authorize this Court to do anything more than declare its lack of jurisdiction to proceed.'³⁶

          We reject this contention. Article III, § 1, provides that the 'judicial Power * * * shall be vested in one supreme Court, and in such inferior Courts as the Congress may * * * establish.' Further, § 2 mandates that the 'judicial Power shall extend to all Cases * * * arising under this Constitution * * *.' It has long been held that a suit 'arises under' the Constitution if a petitioner's claim 'will be sustained if the Constitution * * * (is) given one construction and will be defeated if (it is) given another.'³⁷ Bell v. Hood, 327 U.S. 678, 685, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946). See King County v. Seattle School District No. 1, 263 U.S. 361, 363—364, 44 S.Ct. 127, 127—128, 68 L.Ed. 339 (1923). Cf. Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204 (1824). See generally C. Wright, Federal Courts 48—52 (1963). Thus, this case clearly is one 'arising under' the Constitution as the Court has interpreted that phrase. Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners' failure to state a claim based on federal law.

          Respondents next contend that the Court of Appeals erred in ruling that petitioners' suit is authorized by a jurisdictional statute, i.e., 28 U.S.C. § 1331(a)

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Section 1331(a) provides that district courts shall have jurisdiction in 'all civil actions wherein the matter in controversy * * * arises under the Constitution * * *.' Respondents urge that even though a case may 'arise under the Constitution' for purposes of Art. III, it does not necessarily 'arise under the Constitution' for purposes of § 1331(a). Although they recognize there is little legislative history concerning the enactment of § 1331(a), e spondents argue that the history of the period when the section was first enacted indicates that the drafters did not intend to include suits questioning the exclusion of Congressmen in this grant of 'federal question' jurisdiction.

          Respondents claim that the passage of the Force Act³⁸ in 1870 lends support to their interpretation of the intended scope of § 1331. The Force Act gives the district courts jurisdiction over 'any civil action to recover possession of any office * * * wherein it appears that the sole question * * * arises out of denial of the right to vote * * * on account of race, color or previous condition of servitude.' However, the Act specifically excludes suits concerning the office of Congressman. Respondents maintain that this exclusion demonstrates Congress' intention to prohibit federal courts from entertaining suits regarding the seating of Congressmen.

          We have noted that the grant of jurisdiction in § 1331(a), while made in the language used in Art. III, is not in all respects co-extensive with the potential for federal jurisdiction found in Art. III. See Zwickler v. Koota, 389 U.S. 241, 246, 88 S.Ct. 391, 394, 19 L.Ed.2d 444, n. 8 (1967). Nevertheless, it has generally been recognized that the intent of the drafters was to provide a broad jurisdictional grant to the federal courts. See, e.g., Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.

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Rev. 157, 160 (1953); Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 644—645 (1942). And, as noted above, the resolution of this case depends directly on construction of the Constitution. The Court has consistently held such suits are authorized by the statute. Bell v. Hood, supra; King County v. Seattle School District No. 1, supra. See, e.g., Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913).

          As respondents recognize, there is nothing in the wording or legislative history of § 1331 or in the decisions of this Court which would indicate that there is any basis for the interpretation they would give that section. Nor do we think the passage of the Force Act indicates that § 1331 does not confer jurisdiction in this case. The Force Act is limited to election challenges where a denial of the right to vote in violation of the Fifteenth Amendment is alleged. See 28 U.S.C. § 1344. Further, the Act was passed five years before the original version of § 1331 was enacted. While it might be inferred that Congress intended to give each House the exclusive power to decide congressional election challenges,³⁹ there is absolutely no indication that the passage of this Act evidences an intention to impose other restrictions on the broad grant of jurisdiction in § 1331.

          Having concluded that the Court of Appeals correctly ruled that the District Court had jurisdiction over the subject matter, we turn to the question whether the case is justiciable. Two determinations must be made in this regard. First, we must decide whether the claim

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presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a 'political question'—that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution.

          In deciding generally whether a claim is justiciable, a court must determine whether 'the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.' Baker v. Carr, supra, at 198, 82 S.Ct. at 700. Respondents do no seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements and that he was nevertheless excluded.

          Respondents do maintain, however, that this case is not justiciable because, they assert, it is impossible for a federal court to 'mold effective relief for resolving this case.' Respondents emphasize that petitioners asked for coercive relief against the officers of the House, and, they contend, federal courts cannot issue mandamus or injunctions compelling officers or employees of the House to perform specific official acts. Respondents rely primarily on the Speech or Debate Clause to support this contention.

          We need express no opinion about the appropriateness of coercive relief in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued. The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that a district court may 'declare the rights * * * of any interested party * * * whether or not further relief is or could be sought.' The

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availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. See United Public Workers of America v. Mitchell, 330 U.S. 75, 93, 67 S.Ct. 556, 566, 91 L.Ed. 754 (1947); 6A J. Moore, Federal Practice 57.08(3) (2d ed. 1966); cf. United States v. California, 332 U.S. 19, 25—26, 67 S.Ct. 1658, 1661—1662, 91 L.Ed. 1889 (1947). We thus conclude that in terms of the general criteria of justiciability, this case is justiciable.

          1. Textually Demonstrable Constitutional Commitment.

          Respondents maintain that even if this case is otherwise justiciable, it presents only a political question. It is well established that the federal courts will not adjudicate political questions. See, e.g., Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939); Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918). In Baker v. Carr, supra, we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of any case held to involve a political question was at least one of the following formulations:

          'a textually demonstrable constitutional commitment of the issue to a co-ordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality

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          of embarrassment from multifarious pronouncements by various departments on one question.' 369 U.S., at 217, 82 S.Ct., at 710.

          Respondents' first contention is that this case presents a political question because under Art. I, § 5, there has been a 'textually demonstrable constitutional commitment' to the House of the 'adjudicatory power' to determine Powell's qualifications. Thus it is argued that the House, and the House alone, has power to determine who is qualified to be a member.⁴⁰

          In order to determine whether there has been a textual commitment to a coordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, § 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. Re-

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spondents maintain that the House has broad power under § 5, and, they argue, the House may determine which are the qualifications necessary for membership. On the other hand, petitioners allege that the Constitution provides that an elected representative may be denied his seat only if the House finds he does not meet one of the standing qualifications expressly prescribed by the Constitution.

          If examination of § 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution,⁴¹ further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are

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'inextricable from the case at bar.'⁴² Baker v. Carr, supra, at 217, 82 S.Ct. at 710.

          In other words, whether there is a 'textually demonstrable constitutional commitment of the issue to a coordinate political department' of government and what is the scope of such commitment are questions we must resolve for the first time in this case.⁴³ For, as we pointed out in Baker v. Carr, supra, '(d)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.' Id., at 211, 82 S.Ct. at 706.

          In order to determine the scope of any 'textual commitment' under Art. I, § 5, we necessarily must determine the meaning of the phrase to 'be the Judge of the Qualifications of its own Members.' Petitioners argue that the records of the debates during the Constitutional Convention; available commentary from the post-Convention, pre-ratification period; and early congressional applications of Art. I, § 5, support their construction of the section. Respondents insist, however, that a careful examination of the pre-Convention practices of the English Parliament and American colonial assemblies demonstrates that by 1787, a legislature's power to judge the qualifications of its members was generally under-

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stood to encompass exclusion or expulsion on the ground that an individual's character or past conduct rendered him unfit to serve. When the Constitution and the debates over its adoption are thus viewed in historical perspective, argue respondents, it becomes clear that the 'qualifications' expressly set forth in the Constitution were not meant to limit the long-recognized legislative power to exclude or expel at will, but merely to establish 'standing incapacities,' which could be altered only by a constitutional amendment. Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct and that the Constitution leaves the House⁴⁴ without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.

                            a. The Pre-Convention Precedents.

          Since our rejection of respondents' interpretation of § 5 results in significant measure from a disagreement with their historical analysis, we must consider the relevant historical antecedents in considerable detail. As do respondents, we begin with the English and colonial precedents.

          The earliest English exclusion precedent appears to be a declaration by the House of Commons in 1553 'that Alex. Nowell, being Prebendary (i.e., a clergyman) in Westminster, and thereby having voice in the Convocation House, cannot be a member of this House * * *.' J. Tanner, Tudor Constitutional Documents: A.D. 1485 1603, p. 596 (2d ed. 1930). This decision, however, was

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consistent with a long-established tradition that clergy who participated in their own representative assemblies or convocations were ineligible for membership in the House of Commons.⁴⁵ See 1 E. Porritt, The Unreformed House of Commons 125 (1963); T. Taswell-Langmead's English Constitutional History 142 143 (11th ed. T. Plucknett 1960). The traditional ineligibility of clergymen was recognized as a standing incapacity.⁴⁶ See 1 W. Blackstone's Commentaries *175. Nowell's exclusion, therefore, is irrelevant to the present case, for petitioners concede—and we agree—that if Powell had not met one of the standing qualifications set forth in the Constitution, he could have been excluded under Art. I, § 5. The earliest colonial exclusions also fail to support respondents' theory.⁴⁷

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          Respondents' remaining 16th and 17th century English precedents all are cases of expulsion, although some were for misdeeds not encompassed within recognized standing incapacities existing either at the time of the expulsions or at the time the Constitution was drafted in 1787.⁴⁸ Although these early expulsion orders occasionally contained statements suggesting that the individual expelled was thereafter ineligible for re-election, at least for the duration of the Parliament from which he was expelled,⁴⁹

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there is no indication that any were re-elected and thereafter excluded. Respondents' colonial precedents during this period follow a similar pattern.⁵⁰

          Apparently the re-election of an expelled member first occurred in 1712. The House of Commons had expelled Robert Walpole for receiving kickbacks for contracts relating to 'foraging the Troops,' 17 H.C.Jur. 28, and committed him to the Tower. Nevertheless, two months later he was re-elected. The House thereupon resolved '(t)hat Robert Walpole, Esquire, having been, this Session of Parliament, committed a Prisoner to the Tower of London, and expelled (from) this House, * * * is, incapable of being elected a Member to serve in this present Parliament * * *.' Id., at 128. (Second emphasis added.) A new election was ordered, and Walpole was not re-elected. At least two similar exclusions after an initial expulsion were effected in the American colonies during the first half of the 18th century.⁵¹

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          Respondents urge that the Walpole case provides strong support for their conclusion that the pre-Convention English and colonial practice was that members-elect could be excluded for their prior misdeeds at the sole discretion of the legislative body to which they had been elected. However, this conclusion overlooks an important limiting characteristic of the Walpole case and of both the colonial exclusion cases on which respondents rely: the excluded member had been previously expelled. Moreover, Walpole was excluded only for the remainder of the Parliament from which he had been expelled. 'The theory seems to have been that expulsion lasted as long as the parliament * * *.' Taswell-Langmead, supra, at 584, n. 99. Accord, 1 W. Blackstone's Commentaries *176. Thus, Walpole's exclusion justifies only the proposition that an expulsion lasted for the remainder of the particular Parliament, and the expelled member was therefore subject to subsequent exclusion if reelected prior to the next general election. The two colonial cases arguably support a somewhat broader principle, i.. , that the assembly could permanently expel. Apparently the colonies did not consistently adhere to the theory that an expulsion lasted only until the election of a new assembly. M. Clarke, Parliamentary Privilege in the American Colonies 196—202 (1943).⁵² Clearly, however, none of these cases supports respondents' contention that by the 18th century the English Parliament

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and colonial assemblies had assumed absolute discretion to exclude any member-elect they deemed unfit to serve. Rather, they seem to demonstrate that a member could be excluded only if he had first been expelled.

          Even if these cases could be construed to support respondents' contention, their precedential value was nullified prior to the Constitutional Convention. By 1782, after a long struggle, the arbitrary exercise of the power to exclude was unequivocally repudiated by a House of Commons resolution which ended the most notorious English election dispute of the 18th century—the John Wilkes case. While serving as a member of Parliament in 1763, Wilkes published an attack on a recent peace treaty with France, calling it a product of bribery and condemning the Crown's ministers as "the tools of despotism and corruption." R. Postgate, That Devil Wilkes 53 (1929). Wilkes and others who were involved with the publication in which the attack appeared were arrested. ⁵³ Prior to Wilkes' trial, the House of Commons expelled him for publishing 'a false, scandalous, and seditious libel.' 15 Parl.Hist.Eng. 1393 (1764). Wilkes then fled to France and was subsequently sentenced to exile. 9 L. Gipson, The British Empire Before the American Revolution 37 (1956).

          Wilkes returned to England in 1768, the same year in which the Parliament from which he had been expelled was dissolved. He was elected to the next Parliament, and he then surrendered himself to the Court of King's Bench. Wilkes was convicted of seditious libel and sentenced to 22 months' imprisonment. The new Parlia-

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ment declared him ineligible for membership and ordered that he be 'expelled this House.' 16 Parl.Hist.Eng. 545 (1769). Although Wilkes was re-elected to fill the vacant seat three times, each time the same Parliament declared him ineligible and refused to seat him. See 1 Gipson, supra, at 207—215.⁵⁴

          Wilkes was released from prison in 1770 and was again elected to Parliament in 1774. For the next several years, he unsuccessfully campaigned to have the resolutions expelling him and declaring him incapable of re-election expunged from the record. Finally, in 1782, the House of Commons voted to expunge them, resolving that the prior House actions were 'subversive of the rights of the whole body of electors of this kingdom.' 22 Parl.Hist.Eng. 1411 (1782).

          With the successful resolution of Wilkes' long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that 'the law of the land had regulated the qualifications of members to serve in parliament' and those qualification were 'not occasional but fixed.' 16 Parl.Hist.Eng. 589, 590 (1769). Certainly English practice did not support, nor had it ever supported, respondents' assertion that the power to judge qualifications was generally understood to encompass the right to exclude members-elect for general misconduct not within standing qualifications. With the repudiation in 1782 of the only two precedents

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for excluding a member-elect who had been previously expelled,⁵⁵ it appears that the House of Commons also repudiated any 'control over the eligibility of candidates, except in the administration of the laws which define their (standing) qualifications.' T. May's Parliamentary Practice 66 (13th ed. T. Webster 1924). See Taswell-Langmead, supra, at 585.⁵⁶

          The resolution of the Wilkes case similarly undermined the precedential value of the earlier colonial exclusions, for the principles upon which they had been based were repudiated by the very body the colonial assemblies sought to imitate and whose precedents they generally followed. See Clarke, supra, at 54, 59 60, 196. Thus, in 1784 the Council of Censors of the Pennsylvania Assembly⁵⁷ denounced the prior expulsion of an unnamed assemblyman, ruling that his expulsion had not been effected in conformity with the recently enacted Pennsylvania Constitution.⁵⁸ In the course of its report, the

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Council denounced by name the Parliamentary exclusions of both Walpole and Wilkes, stating that they 'reflected dishonor on none but the authors of these violences.' Pennsylvania Convention Proceedings: 1776 and 1790, p. 89 (1825).

          Wilkes' struggle and his ultimate victory had a significant impact in the American colonies. His advocacy of libertarian causes⁵⁹ and his pursuit of the right to be

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seated in Parliament became a cause celebre for the colonists. '(T)he cry of 'Wilkes and Liberty' echoed loudly across the Atlantic Ocean as wide publicity was given to every step of Wolkes's public career in the colonial press * * *. The reaction in America took on significant proportions. Colonials tended to identify their cause with that of Wilkes. They saw him as a popular hero and a martyr to the struggle for liberty. * * * They named towns, counties, and even children in his honour.' 11 Gipson, supra, at 222.⁶⁰ It is within this historical context that we must examine the Convention debates in 1787, just five years after Wilkes' final victory.

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          Relying heavily on Charles Warren's analysis⁶¹ of the Convention debates, petitioners argue that the proceedings manifest the Framers' unequivocal intention to deny either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution. We do not completely agree, for the debates are subject to other interpretations. However, we have concluded that the records of the debates, viewed in the context of the bitter struggle for the right to freely choose representatives which had recently concluded in England and in light of the distinction the Framers made between the power to expel and the power to exclude, indicate that petitioners' ultimate conclusion is correct.

          The Convention opened in late May 1787. By the end of July, the delegates adopted, with a minimum of debate, age requirements for membership in both the Senate and the House. The Convention then apo inted a Committee of Detail to draft a constitution incorporating these and other resolutions adopted during the preceding months. Two days after the Committee was appointed, George Mason, of Virginia, moved that the Committee consider a clause "requiring certain qualifications of landed property & citizenship" and disqualifying from membership in Congress persons who had unsettled accounts or who were indebted to the United States. 2 Farrand 121. A vigorous debate ensued. Charles Pinckney and General Charles C. Pinckney, both of South Carolina, moved to extend these incapacities to both the judicial and executive branches of the new government. But John Dickinson, of Delaware, opposed the inclusion of any statement of qualifications in the Constitution. He argued that it would be 'im-

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possible to make a compleat one, and a partial one would by implication tie up the hands of the Legislature from supplying the omissions.' Id., at 123. ⁶² Dickinson's argument was rejected; and, after eliminating the disqualification of debtors and the limitation to 'landed' property, the Convention adopted Mason's proposal to instruct the Committee of Detail to draft a property qualification. Id., at 116—117.

          The Committee reported in early August, proposing no change in the age requirement; however, it did recommend adding citizenship and residency requirements for membership. After first debating what the precise requirements should be, on August 8, 1787, the delegates unanimously adopted the three qualifications embodied in Art. I, § 2. Id., at 213.⁶³

          On August 10, the Convention considered the Committee of Detail's proposal that the 'Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.' Id., at 179. The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. For example, James Madison urged its rejection, stating that the proposal would vest

          'an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature

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          could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect. * * * It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of (a weaker) faction.' Id., at 249—250.⁶⁴

          Significantly, Madison's argument was not aimed at the impost ion of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications. The parallel between Madison's arguments and those made in Wilkes' behalf is striking.⁶⁵

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          In view of what followed Madison's speech, it appears that on this critical day the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the 'indisputable right (of the people) to return whom they thought proper'⁶⁶ to the legislature. Oliver Ellsworth, of Connecticut, noted that a legislative power to establish property qualifications was exceptional and 'dangerous because it would be much more liable to abuse.' Id., at 250. Gouverneur Morris then moved to strike 'with regard to property' from the Committee's proposal. His intention was 'to leave the Legislature entirely at large.' Ibid. Hugh Williamson, of North Carolina, expressed concern that if a majority of the legislature should happen to be 'composed of any particular description of men, of lawyers for example, * * * the future elections might be secured to their own body.' Ibid.⁶⁷ Madison then referred to the British Parliament's assumption of the power to regulate the qualifications of both electors and the elected and noted that 'the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties.' Ibid.⁶⁸ Shortly thereafter,

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the Convention rejected both Gouverneur Morris' motion and the Committee's proposal. Later the same day, the Convention adopted without debate the provision authorizing each House to be 'the judge of the * * * qualifications of its own members.' Id., at 254.

          One other decision made the same day is very important to determining the meaning of Art. I, § 5. When the delegates reached the Committee of Detail's proposal to empower each House to expel its members, Madison 'observed that the right of expulsion * * * was too important to be exercised by a bare majority of a quorum: and in emergencies (one) faction might be dangerously abused.' Id., at 254. He therefore moved that 'with the concurrence of two-thirds' be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approve without debate, although Gouverneur Morris noted his opposition. The importance of this decision cannot be over-emphasized. None of the parties to this suit disputes that prior to 1787 the legislative powers to judge qualifications and to expel were exercised by a majority vote. Indeed, without exception, the English and colonial antecedents to Art. I, § 5, cls. 1 and 2, support this conclusion. Thus, the Convention's decision to increase the vote required to expel, because that power was 'too important to be exercised by a bare majority,' while at the same time not similarly restricting the power to judge qualifications, is compelling evidence that they considered the latter already limited by the standing qualifications previously adopted.⁶⁹

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          Respondents urge, however, that these events must be considered in light of what they regard as a very significant change made in Art. I, § 2, cl. 2, by the Committee of Style. When the Committee of Detail reported the provision to the Convention, it read:

          'Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen of (in) the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen.' Id., at 178.

          However, as finally drafted by the Committee of Style, these qualifications were stated in their present negative form. Respondents note that there are no records of the 'deliberations' of the Committee of Style. Nevertheless, they speculate that this particular change was designed to make the provision correspond to the form used by Blackstone in listing the 'standing incapacities' for membership in the House of Commons. See 1 W. Blackstone's Commentaries **175—176. Blackstone, who was an apologist for the anti-Wilkes forces in Parlia-

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ment,⁷⁰ had added to his Commentaries after Wilkes' exclusion the assertion that individuals who were not ineligible for the Commons W. Blackstone's Commentaries *175—176. be denied their seat if the Commons deemed them unfit for other reasons.⁷¹ Since Blackstone's Commentaries was widely circulated in the Colonies, respondents further speculate that the Committee of Style rephrased the qualifications provision in the negative to clarify the delegates' intention 'only to prescribe the standing incapacities without imposing any other limit on the historic power of each house to judge qualifications on a case by case basis.'⁷²

          Respondents' argument is inherently weak, however, because it assumes that legislative bodies historically possessed the power to judge qualifications on a case-by-case basis. As noted above, the basis for that conclusion was the Walpole and Wilkes cases, which, by the time of the Convention, had been denounced by the House of Commons and repudiated by at least one State government. Moreover, respondents' argument misrepresents the function of the Committee of Style. It was appointed only 'to revise the stile of and arrange the articles which had been agreed to * * *.' 2 Farrand 553.

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'(T)he Committee * * * had no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so; and certainly the Convention had no belief * * * that any important change was, in fact, made in the provisions as to qualifications adopted by it on August 10.' ⁷³

          Petitioners also argue that the post-Convention debates over the Constitution's ratification support their interpretation of § 5. For example, they emphasize Hamilton's reply to the antifed-eralist charge that the new Constitution favored the wealthy and well-born:

          'The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms on part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.'

          The Federalist Papers 371 (Mentor ed. 1961). (Emphasis in last sentence added.)

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          Madison had expressed similar views in an earlier essay,⁷⁴ and his arguments at the Convention leave no doubt about his agreement with Hamilton on this issue.

          Respondents counter that Hamilton was actually addressing himself to criticism of Art. I, § 4, which authorizes Congress to regulate the times, pa ces, and manner of electing members of Congress. They note that prominent antifederalists had argued that this power could be used to 'confer on the rich and well-born, all honours.' Brutus No. IV, N.Y. Journal, Nov. 29, 1787, p. 7. (Emphasis in original.) Respondents' contention, however, ignores Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution.⁷⁵

          The debates at the state conventions also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution. Before the New York convention, for example, Hamilton emphasized: '(T)he true principle of a republic is, that

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the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.' 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876) (hereinafter cited as Elliot's Debates).⁷⁶ In Virginia, where the Federalists faced powerful opposition by advocates of popular democracy, Wilson Carey Nicholas, a future member of both the House and Senate and later Governor of the State, met the arguments that the new Constitution violated democratic principles with the following interpretation of Art. I, § 2, cl. 2, as it respects the qualifications of the elected: 'It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their state.' 3 Elliot's Debates 8.

          As clear as these statements appear, respondents dismiss them as 'general statements * * * directed to other issues.'⁷⁷ They suggest that far more relevant is Congress' own understanding of its power to judge qualifications as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded memberselect for reasons other than their

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failure to meet the Constitution's standing qualifications. For almost the first 100 years of its existence, however, Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution.

          Congress was first confronted with the issue in 1807,⁷⁸ when the eligibility of William McCreery was challenged because he did not meet additional residency requirements imposed by the State of Maryland. In recommending that he be seated, the House Committee of Elections reasoned:

          'The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined, without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications; and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules * * *.' 17 annals of Cong. 871 (1807).

          Lest there be any misunderstanding of the basis for the committee's recommendation, during the ensuing debate the chairman explained the principles by which the committee was governed:

          'The Committee of Elections considered the qualifications of members to have been unalterably de-

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          termined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them. * * * Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only. These are the principles on which the Election Committee have made up their report, and upon which their resolution is founded.' Id., at 872.

          The chairman emphasized that the committee's narrow construction of the power of the House to judge qualifications was compelled by the 'fundamental principle in a free government,' id., at 873, that restrictions upon the people to choose their own representatives must be limited to those 'absolutely necessary for the safety of the society.' Id., at 874. At the conclusion of a lengthy debate, which tended to center on the more narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution, the House agreed by a vote of 89 to 18 to seat Congressman McCreery. Id., at 1237. See 1 A. Hinds, Precedents of the House of Representatives of the United States § 414 (1907) (hereinafter cited as Hinds).

          There was no significant challenge to these principles for the next several decades.⁷⁹ They came under heavy

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attack, however, 'during the stress of civil war (but initially) the House of Representatives declined to exercise the power (to exclude), even under circumstances of great provocation.'⁸⁰ Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, p. 7 (1967). The abandonment of such restraint, however, was among the casualties of the general upheaval produced in war's wake. In 1868, the House voted for the first time in its history to exclude a member-elect. It refused to seat two duly elected representatives for giving aid and comfort to the Confederacy. See 1 Hinds §§ 449—451.⁸¹ 'This change was produced by the North's bitter enmity toward those who failed to support the Union cause during the war, and was effected by the Radical Republican domination of Congress. It was a shift brought about by the naked urgency of power and was given little doctrinal support.' Comment, Legislative Exclusion: Julian Bond and Adam Clayton Powell, 35 U.Chi.L.Rev. 151, 157 (1967).⁸² From that time until

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the present, congressional practice has been erratic;⁸³ and on the few occasions when a member-elect was excluded although he met all the qualifications set forth in the

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Constitution, there were frequently vigorous dissent. ⁸⁴ Even the annotations to the official manual of procedure for the 90th Congress manifest doubt as to the House's power to exclude a member-elect who has met the constitutionally prescribed qualifications. See Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, pp. 7—8 (1967).

          Had these congressional exclusion precedents been more consistent, their precedential value still would be quite limited. See Note, The Power of a House of Congress to Judge the Qualifications of its Members, 81 Harv.L.Rev. 673, 679 (1968).⁸⁵ That an unconstitu-

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tional action has been taken before surely does not render that same action any less unconstitutional at a later date. Particularly in view of the Congress' own doubts in those few cases where it did exclude members-elect, we are not inclined to give its precedents controlling weight. The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen's intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. See Myers v. United States, 272 U.S. 52, 175, 47 S.Ct. 21, 45, 71 L.Ed. 160 (1926). And, what evidence we have of Congress' early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution's requirements for membership.

          Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow constuction of the scope of Congress' power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton's words, 'that the people should choose whom they please to govern them.' 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison's warning, borne out in the Wilkes case and some of Con-

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gress' own post-Civil War exclusion cases, against 'vesting an improper & dangerous power in the Legislature.' 2 Farrand 249. Moreover, it would effectively nullify the Convention's decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.

          For these reasons, we have concluded that Art. I, § 5, is at most a 'textually demonstrable commitment' to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the 'textual commitment' formulation of the political question doctrine does not bar federal courts from adjudicating petitioners' claims.

          Respondents' alternate contention is that the case presents a political question because judicial resolution of petitioners' claim would produce a 'potentially embarrassing confrontation between coordinate branches' of the Federal Government. But, as our interpretation of Art. I, § 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a 'lack of the respect due (a) coordinate (branch) of government,' nor does it involve an 'initial policy determination of a kind clearly for non-

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judicial discretion.' Baker v. Carr, 369 U.S. 186, at 217, 82 S.Ct. 691, at 710. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility.⁸⁶ See United States v. Brown, 381 U.S. 437, 462, 85 S.Ct. 1707, 1722, 14 L.Ed.2d 484 (1965); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613—614, 72 S.Ct. 863, 898, 96 L.Ed. 1153 (1952) (Frankfurter, J., concurring); Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 84 (1926) (Brandeis, J., dissenting).

          Nor are any of the other formulations of a political question 'inextricable from the case at bar.' Baker v. Carr, supra, at 217, 82 S.Ct. at 710. Petitioners seek a determination that the House was without power to exclude Powell from the 90th Congress, which, we have seen, requires an interpretation of the Constitution—a determination for which clearly there are 'judicially * * * manageable standards.' Finally, a judicial resolution of petitioners' claim will not result in 'multifarious pronouncements by various departments on one question.' For, as we noted in Baker v. Carr, supra, at 211, 82 S.Ct., at 706 it is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803). Thus, we conclude that petitioners' claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justiciable, we hold that the case is justiciable.

          To summarize, we have determined the following: (1) This case has not been mooted by Powell's seating in

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the 91st Congress. (2) Although this action should be dismissed against respondent Congressmen, it mayb e sustained against their agents. (3) The 90th Congress' denial of membership to Powell cannot be treated as an expulsion. (4) We have jurisdiction over the subject matter of this controversy. (5) The case is justiciable.

          Further, analysis of the 'textual commitment' under Art. I, § 5 (see Part VI, B (1)), has demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

          Petitioners seek additional forms of equitable relief, including mandamus for the release of petitioner Powell's back pay. The propriety of such remedies, however, is more appropriately considered in the first instance by the courts below. Therefore, as to respondents McCormack, Albert, Ford, Celler, and Moore, the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed. As to respondents Jennings, Johnson, and Miller, the judgment of the Court of Appeals for the District of Columbia Circuit is reversed and the case is remanded to the United States District Court for the District of Columbia with instructions to enter a declaratory judgment and for further proceedings consistent with this opinion.

          It is so ordered.

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          Mr. Justice DOUGLAS.

          While I join the opinion of the Court, I add a few words. As the Court says, the important constitutional question is whether the Congress has the power to deviate from or alter the qualifications for membership as a Representative contained in Art. I, § 2, cl. 2, of the Constitution.¹ Up to now the understanding has been quite clear to the effect that such authority does not exist.² To be sure, Art. I, § 5, provides that: 'Each

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House shall be the Judge of the Elections, Returns and Qualifications of its own Members * * *.' Contests may arise over whether an elected official meets the 'qualifications' of the Constitution, in which event the House is the sole judge.³ But the House is not the sole judge when 'qualifications' are added which are not specified in the Constitution.⁴

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          A man is not seated because he is a Socialist or a Communist.⁵

          Another is not seated because in his district members of a minority are systematically excluded from voting.⁶

          Another is not seated because he has spoken out in opposition to the war in Vietnam.⁷

          The possible list is long. Some cases will have the racist overtones of the present one.

          Others may reflect religious or ideological clashes.⁸

          At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of 'one man, one vote.' When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised?

          By Art. I, § 5, the House may 'expel a Member' by a vote of two-thirds. And if this were an expulsion case I would think that no justiciable controversy would be presented, the vote of the House being two-thirds or more. But it is not an expulsion case. Whether it could have been won as an expulsion case, no one knows. Expulsion for 'misconduct' may well raise different questions, different considerations. Policing the conduct of members, a recurring problem in the Senate and House as well, is quite different from the initial decs ion whether an elected official should be seated. It well might be easier to bar admission than to expel one already seated.

          The House excluded Representative-elect Powell from the 90th Congress allegedly for misappropriating public funds and for incurring the contempt of New York

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courts.⁹ Twenty-six years earlier, members of the upper chamber attempted to exclude Senator-elect William Langer of North Dakota for like reasons.¹⁰ Langer first became State's Attorney for Morton County, North Dakota, from 1914 to 1916, and then served as State Attorney General from 1916 to 1920. He became Governor of the State in 1932 and took office in January 1933. In 1934 he was indicted for conspiring to interfere with the enforcement of federal law by illegally soliciting political contributions from federal employees, and suit was filed in the State Supreme Court to remove him from office.¹¹ While that suit was pending, he called the State Legislature into special session.¹² When it became clear that the court would order his ouster, he signed a Declaration of Independence, invoked martial law, and called out the National Guard.¹³ Nonetheless, when his own officers refused to recognize him as the legal head of state, he left office in July 1934. As with Adam Clayton Powell, however, the people of the State still wanted him. In 1937 they re-elected him Governor and, in 1940, they sent him to the United States Senate.

          During the swearing-in ceremonies, Senator Barkley drew attention to certain complaints filed against Langer by citizens of North Dakota, yet asked that he be allowed to take the oath of office

          'without prejudice, which is a two-sided proposition—without prejudice to the Senator and without

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          prejudice to the Senate in the exercise of its right (to exclude him).'¹⁴

          The matter of Langer's qualifications to serve in the Senate was referred to committee which held confidential hearings on January 9 and 16, 1941, and open hearings on November 3 and 18, 1941. By a vote of 14 to 2, the committee reported that a majority of the Senate had jurisdiction under Art. I, § 5, cl. 1, of the Constitution to exclude Langer; and, by a vote of 13 to 3, it reported its recommendation that Langer not be seated.¹⁵

          The charges against Langer were various. As with Powell, they included claims that he had misappropriated public funds¹⁶ and that he had interfered with the judicial process in a way that beclouded the dignity of Congress.¹⁷ Reference was also made to his professional ethics as a lawyer.¹⁸

          Langer enjoyed the powerful advocacy of Senator Murdock from Utah. The Senate debate itself raged

Page 556

for over a year.¹⁹ Much of it related to purely factual allegations of 'moral turpitude.' Some of it, however, was addressed to the power of the Senate under Art. I, § 5, cl. 1, to exclude a member-elect for lacking qualifications not enumerated in Art. I, § 3.

          'Mr. MURDOCK. * * * (U)nder the Senator's theory that the Senate has the right to add qualifications which are not specified in the Constitution, does the Senator believe the Senate could adopt a rule specifying intellectual and moral qualifications?²⁰

          'Mr. LUCAS. The Senate can do anything it wants to do * * *. Yes; the Senate can deny a person his seat simply because it does not like the cut of his jaw, if it wishes to.'²¹

          Senator Murdock argued that the only qualifications for service in the Senate were those enumerated in the Constitution; that Congress had the power to review those enumerated qualifications; but that it could not—while purporting to 'judge' those qualifications—in reality add to them.

          'Mr. LUCAS. The Senator referred to article I, section 5. What does he think the framers of the Constitution meant when they gave to each House the power to determine or to judge the qualifications, and so forth, of its own Members? ²²

          'Mr. MURDOCK. I construe the term 'judge' to mean what it is held to mean in its common, ordinary usage. My understanding of the definition of the

Page 557

          word 'judge' as a verb is this: When we judge of a thing it is supposed that the rules are laid out; the law is there for us to look at and to apply to the facts.

          'But whoever heard the word 'judge' used as meaning the power to add to what already is the law?'²³

          It was also suggested from the floor that the enumerated qualifications in § 3 were only a minimum which the Senate could supplement; and that the Founding Fathers so intended by using words of the negative. To which Senator Murdock replied—

          'Mr. President, I think it is the very distinguished and able Senator from Georgia who makes the contention that the constitutional provisions relating to qualifications, because they are stated in the negative—that is, 'no person shall be a Senator'—are merely restrictions or prohibitions on the State; but—and I shall read it later on—when we read what Madison said, when we read what Hamilton said, when we read what the other framers of the Constitution said on that question, there cannot be a doubt as to what they intended and what they meant.²⁴

          'Madison knew that the qualifications should be contained in the Constitution and not left to the whim and caprice of the legislature.²⁵

          'Bear that in mind, that the positive or affirmative phraseology was not changed to the negative by debate or by amendment in the convention, but it

Page 558

          was changed by the committee of which Madison was a member, the committee on style.'²⁶

          The Senate was nonetheless troubled by the suggestion that the Constitution compelled it to accept anyone whom the people might elect, no matter how egregious and even criminal his behavior. No need to worry, said Murdock. It is true that the Senate cannot invoke its majority power to 'judge' under Art. I, § 5, cl. 1, as a device for excluding men elected by the people who possess the qualifications enumerated by the Constitution. But it does have the power under Art. I, § 5, cl. 2, to expel anyone it designates by a two-thirds vote. None-theless, he urged the Senate not to bypass the two-thirds requirement for expulsion b wrongfully invoking its power to exclude.²⁷

          'Mr. LUCAS. * * * The position the Senator from Utah takes is that it does not make any difference what a Senator does in the way of crime, that whenever he is elected by the people of his State, comes here with bona fide credentials, and there is no fraud in the election, the Senate cannot refuse to give him the oath. That is the position the Senator takes?

          'Mr. MURDOCK. That is my position; yes.²⁸

          'My position is that we do not have the right to exclude anyone who comes here clothed with the proper credentials and possessing the constitutional qualifications. My position is that we do not have

Page 559

          the right under the provision of the Constitution to which the Senator from Florida referred, to add to the qualifications. My position is that the State is the sole judge of the intellectual and the moral qualifications of the representatives it sends to Congress.'²⁹

          'MR. MURDOCK (quoting Senator Philander Knox). 'I know of no defect in the plain rule of the Constitution for which I am contending. * * * I cannot see that any danger to the Senate lies in the fact that an improper character cannot be excluded without a two-thirds vote. It requires the unanimous vote of a jury to convict a man accused of crime; it should require, and I believe that it does require, a two-thirds vote to eject a Senator from his position of honor and power, to which he has been elected by a sovereign State."³⁰

          Thus, after a year of debate, on March 27, 1942, the Senate overruled the recommendation of its committee and voted 52 to 30 to seat Langer.

          I believe that Senator Murdock stated the correct constitutional principle governing the present case.

           Mr. Justice STEWART, dissenting.

          I believe that events which have taken place since certiorari was granted in this case on November 18, 1968, have rendered it moot, and that the Court should therefore refrain from deciding the novel, difficult, and delicate constitutional questions which the case presented at its inception.

Page 560

          The essential purpose of this lawsuit by Congressman Powell and members of his constituency was to regain the seat from which he was barred by the 90th Congress. That purpose, however, became impossible of attainment on January 3, 1969, when the 90th Congress passed into history and the 91st Congress came into being. On that date, the petitioners' prayer for a judicial decree restraining enforcement of House Resolution No. 278 and commanding the respondents to admit Congressman Powell to membership in the 90th Congress became incontestably moot.

          The petitioners assert that actions of the House of Representatives of the 91st Congress have prolonged the controversy raised by Powell's exclusion and preserved the need for a judicial declaration in this case. I believe, to the contrary, that the conduct of the present House of Representatives confirms the mootness of the petitioners' suit against the 90th Congress. Had Powell been excluded from the 91st Congress, he might argue that there was a 'continuing controversy' concerning the exclusion attacked in this case.¹ And such an argument might be sound even though the present House of Representatives is a distinct legislative body rather than a continuation of its predecessor,² and though any griev

Page 561

ance caused by conduct of the 91st Congress is not redressable in this action. But on January 3, 1969, the House of Representatives of the 91st Congress admitted Congressman Powell to membership, and he now sits as the Representative of the 18th Congressional District of New York. With the 90th Congress terminated and Powell now a member of the 91st, it cannot seriously be contended that there remains a judicial controversy between these parties over the power of the House of Representatives to exclude Powell and the power of a court to order him reseated. Understandably, neither the Court nor the petitioners advance the wholly untenable proposition that the continuation of this case can be founded on the infinitely remote possibility that Congressman Powell, or any other Representative, may someday be excluded for the same reasons or in the same manner. And because no foreseeable possibility of such future conduct exists, the respondents have met their heavy burden of showing that 'subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364.³

          The petitioners further argue that this case cannot be deemed moot because of the principle that 'the voluntary abandonment of a practice does not relieve a court of adjudicating its legality * * *.' Gray v. Sanders, 372

Page 562

U.S. 368, 376, 83 S.Ct. 801, 806, 9 L.Ed.2d 821.⁴ I think it manifest, however, that this principle and the cases enunciating it have no application to the present case. In the first place, this case does not involve 'the voluntary abandonment of a practice.' Rather it became moot because of an event over which the respondents had no control—the expiration of the 90th Congress. Moreover, unlike the cases relied on by the petitioners, there has here been no ongoing course of conduct of indefinite duration against which a permanent injunction is necessary. Thus, it cannot be said of the respondents' actions in this case, as it was of the conduct sought to be enjoined in Gray, for example, that 'the practice is deeply rooted and long standing,' ibid., or that, without judicial relief, the respondents would be 'free to return to (their) old ways.' United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897.⁵ Finally, and

Page 563

most important, the 'voluntary abandonment' rule does not dispense with the requirement of a continuing controversy, nor could it under the definition of the judicial power in Article III of the Constitution. Voln tary cessation of unlawful conduct does make a case moot 'if the defendant can demonstrate that 'there is no reasonable expectation that the wrong will be repeated." Id., at 633, 73 S.Ct., at 897.⁶ Since that is the situation here, the case would be moot even if it could be said that it became so by the House's 'voluntary abandonment' of its 'practice' of excluding Congressman Powell.

          The petitioners' proposition that conduct of the 91st Congress has perpetuated the controversy is based on the fact that House Resolution No. 2—the same resolution by which the House voted to seat Powell—fined him $25,000 and provided that his seniority was to commence as of the date he became a member of the 91st Congress.⁷ That punishment, it is said, 'arises out of the

Page 564

prior actions of the House which originally impelled this action.' It is indisputable, however, that punishment of a House member involves constitutional issues entirely distinct from those raised by exclusion,⁸ and that a punishment in one Congress is in no legal sense a 'continuation' of an exclusion from the previous Congress. A judicial determination that the exclusion was improper would have no bearing on the constitutionality of the punishment, nor any conceivable practical impact on Powell's status in the 91st Congress. It is thus clear that the only connection between the exclusion by the 90th Congress and the punishment by the 91st is that they were evidently based on the same asserted derelictions of Congressman Powell. But this action was not brought to exonerate Powell or to expunge the legislative findings of his wrongdoing; its only purpose was to restrain the action taken in consequence of those findings—Powell's exclusion.

          Equally without substance is the petitioners' contention that this case is saved from mootness by application of the asserted 'principle' that a case challenging allegedly unconstitutional conduct cannot be rendered moot

Page 565

by further unconstitutional conduct of the defendants. Under this hypothesis, it is said that the 'Court can not determine that the conduct of the House of January 3, 1969, has mooted this controversy without inferentially, at least, holding that the action of the House of that day was legal and constitutionally permissible.' If there is in our jurisprudence any doctrine remotely resembling the petitioners' theory—which they offer without reference to any authority—it has no conceivable relevance to this case. For the events of January 3, 1969, that made this case moot were the termination of the 90th Congress and Powell's seating in the 91st, not the punishment which the petitioners allege to have been unconstitutional. That punishment is wholly irrelevant to the question of mootness and is in no wise before the Court in this case.

          The passage of time and intervening events have, therefore, made it impossible to afford the petitioners the principal relief they sought in this case. If any aspect of the case remains alive, it is only Congressman Powell's individual claim for the salary of which he was deprived by his absence from the 90th Congress.⁹ But even if that claim can be said to prevent this controversy from being moot, which I doubt, there is no need to reach the fundamental constitutional issues that the Court today undertakes to decide.

          This Court has not in the past found that an incidental claim for back pay preserves the controversy between a legislator and the legislative body which evicted him, once the term of his eviction has expired. Alejandrino v. Quezon, 271 U.S. 528, 46 S.Ct. 600, 70 L.Ed. 1071, was a case nearly identical to

Page 566

that before the Court today. The petitioner was a member of the Senate of the Philippines who had been suspended for one year for assaulting a colleague. He brought an action in the Supreme Court of the Philippines against the elected members of the Senate¹⁰ and its officers and employees (the President, Secretary, Sergeant at Arms, and Paymaster), seeking a writ of mandamus and an injunction restoring him to his seat and to all the privileges and emoluments of office. The Supreme Court of the Philippines dismissed the action for want of jurisdiction and Alejandrino brought the case here,¹¹ arguing that th suspension was not authorized by the Philippine Autonomy Act, a statute which incorporated most of the provisions of Article I of the United States Constitution.¹²

Page 567

          Because the period of the suspension had expired while the case was pending on certiorari, a unanimous Court, in an opinion by Chief Justice Taft, vacated the judgment and remanded the case with directions to dismiss it as moot. To Alejandrino's claim that his right to back pay kept the case alive, the Court gave the following answer, which, because of its particular pertinency to this case, I quote at length:

          'It may be suggested, as an objection to our vacating the action of the court below, and directing the dismissal of the petition as having become a moot case, that, while the lapse of time has made unnecessary and futile a writ of mandamus to restore Senator Alejandrino to the Island Senate, there still remains a right on his part to the recovery of his emoluments, which were withheld during his suspension, and that we ought to retain the case for the purpose of determining whether he may not have a mandamus for this purpose. * * * It is difficult for the Court to deal with this feature of the case, which is really only a mere incident to the main question made in the petition and considered in the able and extended brief of counsel for the petitioner and the only brief before us. That brief is not in any part of it directed to the subject of emoluments, nor does it refer us to any statute or to the rules of the Senate by which the method of paying Senators' salaries is provided, or in a definite way describe the duties of the officer or officers or committee charged with the ministerial function of paying them.

          '* * * the remedy of the Senator would seem to be by mandamus to compel such official in the discharge of his ministerial duty to pay him the salary due, and the presence of the Senate as a party would be

Page 568

          unnecessary. Should that official rely upon the resolution of the Senate as a reason for refusing to comply with his duty to pay Senators, the validity of such a defense and the validity of the resolution might become a judicial question affecting the personal right of the complaining Senator, properly to be disposed of in such action but not requiring the presence of the Senate as a party for its adjudication. The right of the petitioner to his salary does not therefore involve the very serious issue raised in this petition as to the power of the Philippine Supreme Court to compel by mandamus one of the two legislative bodies constituting the e gislative branch of the government to rescind a resolution adopted by it in asserted lawful discipline of one of its members, for disorder and breach of privilege. We think, now that the main question as to the validity of the suspension has become moot, the incidental issue as to the remedy which the suspended Senator may have in recovery of his emoluments if illegally withheld, should properly be tried in a separate proceeding against an executive officer or officers as described. As we are not able to derive from the petition sufficient information upon which properly to afford such a remedy, we must treat the whole cause as moot and act accordingly. This action on our part of course is without prejudice to a suit by Senator Alejandrino against the proper executive officer or committee by way of mandamus or otherwise to obtain payment of the salary which may have been unlawfully withheld from him.' 271 U.S., at 533, 534—535, 46 S.Ct., at 601. ¹³

Page 569

          Both of the factors on which the Court relied in Alejandrino are present in this case. Indeed, the salary claim is an even more incidental and subordinate aspect of this case than it was of Alejandrino.¹⁴ And the availability of effective relief for that claim against any of the present respondents is far from certain. As in Alejandrino, the briefs and memoranda submitted by the parties in this case contain virtually no discussion of this question—the only question of remedy remaining in the case. It appears from relevant provisions of law, however, that the Sergeant at Arms of the House—an official newly

Page 570

elected by each Congress¹⁵—is responsible for the retention and disbursement to Congressmen of the funds appropriated for their salaries. These funds are payable from the United States Treasury¹⁶ upon requisitions presented by the Sergeant at Arms, who is entrusted with keeping the books and accounts 'for the compensation and mileage of Members.'¹⁷ A Congressman who has presented his credentials and taken the oath of office¹⁸ is entitled to be paid monthly on the basis of certificates of the Clerk¹⁹ and Speaker of the House.²⁰ Powell's prayer for a mandamus and an injunction against the Sergeant at Arms is presumably based on this statutory scheme.

          Several important questions remain unanswered, however, on this record. Is the Sergeant at Arms the only necessary defendant? If so, the case is surely moot as to the other respondents, including the House members, and they should be dismissed as parties on that ground rather than after resolution of difficult constitutional questions under the Speech or Debate Clause. But it is far from clear that Powell has an appropriate or adequate remedy against the remaining respondents. For if the Speaker does not issue the requisite certificates and the House does not rescind Resolution No. 278, can the House agents be enjoined to act in direct contravention of the orders of their employers? Moreover, the office of Sergeant at Arms of the 90th Congress has now expired, and the present Sergeant at Arms serves the 91st Congress. If he were made a party in that capacity, would he have the authority—or could the 91st Congress

Page 571

confer the authority—to disburse money for a salary owed to a Representative in the previous Congress, particularly one who never took the oath of office? Presumably funds have not been appropriated to the 91st Congress or requisitioned by its Sergeant at Arms for the payment of salaries to members of prior Congresses. Nor is it ascertainable from this record whether money appropriated for Powell's salary by the 90th Congress, if any, remains at the disposal of the current House and its Sergeant at Arms.²¹

          There are, then substantial questions as to whether, on his salary claim, Powell could obtain relief against any or all of these respondents. On the other hand, if he was entitled to a salary as a member of the 90th Congress, he has a certain and completely satisfactory remedy in an action for a money judgment against the United States in the Court of Claims.²² While that court could not have ordered Powell seated or entered a declaratory judgment on the constitutionality of his exclusion,²³ it

Page 572

is not disputed that the Court of Claims could grant him a money judgment for lost salary on the ground that his discharge from the House violated the Constitution. I would remit Congressman Powell to that remedy, and not simply because of the serious doubts about the availability of the one he now pursues. Even if the mandatory relief sought by Powell is appropriate and could be effective, the Court should insist that the salary claim be litigated in a context that would clearly obviate the need to decide some of the constitutional questions with which the Court grapples today, and might avoid them altogether.²⁴ In an action in the Court of Claims for a money judgment against the United States, there would be no question concerning the impact of the Speech or Debate Clause on a suit against members of the House of Representatives and their agents, and questions of jurisdiction and justiciability would, if raised at all, be in a vastly different and more conventional form.

          In short, dismissal of Powell's action against the legislative branch would not in the slightest prejudice his money claim,²⁵ and it would avoid the necessity of decid-

Page 573

ing constitutional issues which, in the petitioners' words, 'touch the bedrock of our political system (and) strike at the very heart of representative government.' If the fundamental principles restraining courts from unnecessarily or prematurely reaching out to decide grave and perhaps unsettling constitutional questions retain any vitality, see Ashwander v. TVA, 297 U.S. 288, 346—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (Brandeis, J., concurring), surely there have been few cases more demanding of their application than this one. And those principles are entitled to special respect in suits, like this suit, for declaratory and injunctive relief, which it is within a court's broad discretion to withhold. 'We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations.' Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 582, 7 L.Ed.2d 604. 'Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative.' Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431, 68 S.Ct. 641, 644, 192 L.Ed. 784.

          If this lawsuit is to be prolonged, I would at the very least not reach the merits without ascertaining that a decision can lead to some effective relief. The Court's remand for determination of that question implicitly recognizes that there may be no remaining controversy between petitioner Powell and any of these respondents redressable by a court, and that its opinion today may e wholly advisory. But I see no good reason for any court even to pass on the question of the availability

Page 574

of relief against any of these respondents. Because the essential purpose of the action against them is no longer attainable and Powell has a fully adequate and far more appropriate remedy for his incidental back-pay claim, I would withhold the discretionary relief prayed for and terminate this lawsuit now. Powell's claim for salary may not be dead, but this case against all these respondents is truly moot. Accordingly, I would vacate the judgment below and remand the case with directions to dismiss the complaint.

^{1. Powell requested that he be given (1) notice of the charges pending against him, including a bill of particulars as to any accuser; (2) the opportunity to confront any accuser, to attend all committee sessions where evidence was given, and the right to cross-examine all witnesses; (3) public hearings; (4) the right to have the Select Committee issue its process to summon witnesses for his defense; (5) and a transcript of every haring. Hearings on H.R.Res. No. 1 before Select Committee Pursuant to H.R.Res. No. 1 90th Cong., 1st Sess., 54 (1967).}

The Select Committee noted that it had given Powell notice of the matters it would inquire into, that Powell had the right to attend all hearings (which would be public) with his counsel, and that the Committee would call witnesses upon Powell's written request and supply a transcript of the hearings. Id., at 59.

^2. The complaint also attacked the House Resolution as a bill of attainder, an ex post facto low, and as cruel and unusual punishment. Further, petitioners charged that the hearing procedures adopted by the Select Committee violated the Due Process Clause of th Fifth Amendment.

^3. The District Court refused to convene a three-judge court and the Court of Appeals affirmed. Petitioners did not press this issue in their petition for writ of certiorari, apparently recognizing the validity of the Court of Appeals' ruling. See Stamler v. Willis, 393 U.S. 217, 89 S.Ct. 395, 21 L.Ed.2d 356 (1968).

^4. Petitioners also requested that a writ of mandamus issue ordering that the named officials perform the same acts.

^5. The District Court entered its order April 7, 1967, and a notice of appeal was filed the same day. On April 11, 1967, Powell was re-elected to the House of Representatives in a special election called to fill his seat. The formal certification of election was received by the House on May 1, 1967, but Powell did not again present himself to the House or ask to be given the oath of office.

^6. Respondents' authority for this assertion is a footnote contained in Gojack v. United States, 384 U.S. 702, 707, 86 S.Ct. 1689, 1693, 16 L.Ed.2d 870, n. 4. (1966): 'Neither the House of Representatives nor its committees are continuing bodies.'

^7. The rule that this Court lacks jurisdiction to consider the merits of a moot case is a branch of the constitutional command that the judicial power extends only to cases or controversies. See Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States §§ 270—271 (R. Wolfson & P. Kurland ed. 1951); Diamond, Federal Jurisdiction To Decide Moot Cases, 94 U.Pa.L.Rev. 125 (1946); Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U.Pa.L.Rev. 772 (1955).

^8. Petitioners do not press their claim that respondent McCormack should be required to administer the oath to Powell, apparently conceding that the seating of Powell has rendered this specific claim moot. Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests. See Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 353, 42 S.Ct. 360, 361, 66 L.Ed. 653 (1922). Respondents also argue that the seating of petitioner Powell has mooted the claims of Powell's constituents. Since this case will be remanded, that issue as well as petitioners' other claims can be disposed of by the court below.

^9. Alejandrino's brief did not consider either the possibility that his request for injunctive relief had become moot or whether his salary claim required that the Court treat the propriety of his suspension. No brief was filed on behalf of respondents.

^10. After discussing the insufficiency of Alejandrino's averments as to the officer responsible for his salary, the Court stated: 'Were that set out, the remedy of the Senator would seem to be by mandamus to compel such official in the discharge of his miniterial duty to pay him the salary due * * *.' 271 U.S. at 534, 46 S.Ct., at 602. That the insufficiency of Alejandrino's averments was the reason for dismissal is further substantiated by a later passage: 'As we are not able to derive from the petition sufficient information upon which properly to afford such a remedy (mandamus), we must treat the whole cause as moot and act accordingly.' Id., at 535, 46 S.Ct., at 602.

^11. Paragraph 18b of petitioners' complaint avers that 'Leake W. Johnson, as Sergeant-at-Arms of the House' is responsible for and refuses to pay Powell's salary and prays for an injunction restraining the Sergeant at Arms from implementing the House resolution depriving Powell of his salary as well as mandamus to order that the salary be paid.

^12. Federal courts were first empowered to grant declaratory judgments in 1934, see 48 Stat. 955, 10 years after Alejandrino filed his complaint.

^13. It was expressly stated in Alejandrino that a properly pleaded mandamus action could be brought, 271 U.S., at 535, 46 S.Ct. at 602, impliedly holding that Alejandrino's salary claim had not been mooted by the expiration of his suspension.

^14. Respondents do not supply any substantiation for their assertion that the term of the Georgia Legislature did not expire until December 31. Presumably, they base their statement upon Ga.Code Ann. §§ 2—1601, 2—1603 (Supp.1968).

^15. Respondents also suggest that Bond is not applicable because the parties in Bond had stipulated that Bond would be entitled to back salary if his constitutional challenges were accepted, while there is no stipulation in this case. However, if the claim in Bond was moot, a stipulation by the parties could not confer jurisdiction. See, e.g., California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893).

^16. Since the court below disposed of this case on grounds of justiciability, it did not pass upon whether Powell had brought an appropriate action to recover his salary. Where a court of appeals has misconceived the applicable law and therefore failed to pass upon a question, our general practice has been to remand the case to that court for consideration of the remaining issues. See, e.g., Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 704, 87 S.Ct. 1326, 1337, 18 L.Ed.2d 406 (1967); Bank of America National Trust & Savings Assn. v. Parnell, 352 U.S. 29, 34, 77 S.Ct. 119, 121, 1 L.Ed.2d 93 (1956). We believe that such action is appropriate for resolution of whether Powell in this litigation is entitled to mandamus against the Sergeant at Arms for salary withheld pursuant to the House resolution.

^17. Article I, § 6, provides: 'for any Speech or Debate in either House, they (Senators and Representatives) shall not be questioned in any other Place.'

^18. Petitioners ask the Court to draw a distinction between declaratory relief sought against members of Congress and either an action for damages or a criminal prosecution, emphasizing that our four previous cases concerned 'criminal or civil sanctions of a deterrent nature.' Brief for Petitioners 171.

^19. See 5 Debates on the Federal Constitution 406 (J. Elliot ed. 1876); 2 Records of the Federal Convention of 1787, p. 246 (M. Farrand rev. ed. 1966) (hereinafter cited as Farrand).

^20. The English Bill of Rights contained a provision substantially identical to Art. I, § 6: 'That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.' 1 W. & M., Sess. 2, c. 2. The English and American colonial history is traced in some detail in Cella, The Doctrine of Legislative Privilege of Freedom of Speech and Debate: Its Past, Present and Future as a Bar to Criminal Prosecutions in the Courts, 2 Suffolk U.L.R.ev. 1, 3—16 (1968), and Yankwich, The Immunity of Congressional Speech—Its Origin, Meaning and Scope, 99 U.Pa.L.Rev. 960, 961—966 (1951).

^21. United States v. Johnson, 383 U.S. 169, 182—183, 86 S.Ct. 749, 756—757 (1966).

^22. 1 The Works of James Wilson 421 (R. McCloskey ed. 1967).

^23. In Dombrowski $500,000 in damages was sought against a Senator and the chief counsel of a Senate Subcommittee chaired by that Senator. Record in No. 118, O.T.1966, pp. 10—11. We affirmed the grant of summary judgment as to the Senator but reversed as to subcommittee counsel.

^24. The Court in Kilbourn quoted extensively from Stockdale v. Hansard, 9 Ad. & E. 1, 114, 112 Eng.Rep. 1112, 1156 (Q.B.1839), to refute the assertion that House agents were immune because they were executing orders of the House: '(I)f the Speaker, by authority of the House, order an illegal Act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles's warrant for levying ship-money could justify his revenue officer.' Kilbourn eventually recovered $20,000 against Thompson. See Kilbourn v. Thompson, MacArth. & M. 401, 432 (Sup.Ct.D.C.1883).

^25. A Congressman is not by virtue of the Speech or Debate Clause absolved of the responsibility of filing a motion to dismiss and the trial court must still determine the applicability of the clause to plaintiff's action. See Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788 (1951).

^26. Given our disposition of this issue, we need not decide whether under the Speech or Debate Clause petitioners would be entitled to maintain this action solely against members of Congress where no agents participated in the challenged action and no other remedy was available. Cf. Kilbourn v. Thompson, 103 U.S. 168, 204—205 (1881). and no other remedy was available.

^27. Powell was 'excluded' from the 90th Congress, i.e., he was not administered the oath of office and was prevented from taking his seat. If he had been allowed to take the oath and subsequently had been required to surrender his seat, the House's action would have constituted an 'x plusion'. Since we conclude that Powell was excluded from the 90th Congress, we express no view on what limitations may exist on Congress' power to expel or otherwise punish a member once he has been seated.

^28. House Resolution No. 278, as amended and adopted, provided: 'That said Adam Clayton Powell * * * be and the same hereby is excluded from membership in the 90th Congress * * *.' 113 Cong.Rec. 5020. (Emphasis added.)

^29. Other Congresses have expressed an identical view. The Report of the Judiciary Committee cn cerning the proposed expulsion of William S. King and John G. Schumaker informed the House:

'Your committee are of opinion that the House of Representatives has no authority to take jurisdiction of violations of law or offenses committed against a previous Congress. This is purely a legislative body, and entirely unsuited for the trial of crimes. The fifth section of the first article of the Constitution authorizes 'each house to determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.' This power is evidently given to enable each house to exercise its constitutional function of legislation unobstructed. It cannot vest in Congress a jurisdiction to try a member for an offense committed before his election; for such offense a member, like any other citizen, is amenable to the courts alone.' H.R.Rep.No.815, 44th Cong., 1st Sess., 2 (1876).

See also 15 Cong.Rec. 4434 (1884) (ruling of the Speaker); H.R.Rep.No.81, 42d Cong., 3d Sess., 8 (1873) (expulsion of James Brooks and Oakes Ames); H.R.Rep.No.179, 35th Cong., 1st Sess., 4—5 (1858) (expulsion of Orsamus B. Matteson).

^30. We express no view as to whether such a ruling would have been proper. A further distinction between expulsion and exclusion inheres in the fact that a member whose expulsion is contemplated may as a matter of right address the House and participate fully in debate while a member-elect apparently does not have a similar right. In prior cases the member whose expulsion was under debate has been allowed to make a long and often impassioned defense. See Cong. Globe, 42d Cong., 3d Sess., 1723 (1873) (expulsion of Oakes Ames); Cong. Globe, 41st Cong., 2d Sess., 1524—1525, 1544 (1870) (expulsion of B. F. Whittermore); Cong. Globe, 34th Cong., 3d Sess., 925—926 (1857) (expulsion of William A. Gilbert); Cong. Globe, 34th Cong., 3d Sess., 947—951 (1857) (expulsion of William W. Welch); 9 Annals of Cong. 2966 (1799) (expulsion of Matthew Lyon). On at least one occasion the member has been allowed to cross-examine other members during the expulsion debate. 2 A. Hinds, Precedents of the House of Representatives § 1643 (1907).

^31. A motion for the previous question is a debate-limiting device which, when carried, has the effect of terminating debate and of forcing a vote on the subject at hand. See Rules of the House of Representatives, H.R.Doc.No.529, 89th Cong., 2d Sess., §§ 804—809 (1967); Cannon's Procedure in the House of Representatives, H.R.Doc.No.610, 87th Cong., 2d Sess., 277—281 (1963).

^32. Eckhardt, The Adam Clayton Powell Case, 45 Texas L.Rev. 1205, 1209 (1967). The views of Congressman Eckhardt were echoed during the exclusion proceedings. Congressman Cleveland stated that, although he voted in favor of and supported the Select Committee's recommendation, if the exclusion amendment received a favorable vote on the motion for the previous question, then he would support the amendment 'on final passage.' 113 Cong.Rec. 5031. Congressman Gubser was even more explicit:

'I shall vote against the previous question on the Curtis amendment simply because I believe future and perfecting amendments should be allowed. But if the previous question is ordered, then I will be placed on the horns of an impossible dilemma.

'Mr. Speaker, I want to expel Adam Clayton Powell, by seating him first, but that will not be my choice when the Curtis amendment is before us. I will be forced to vote for exclusion, about which I have great constitutional doubts, or to vote for no punishment at all. Given this raw and isolated issue, the only alternative I can follow is to vote for the Curtis amendment. I shall do so, Mr. Speaker, with great reservation.' Ibid.

^33. Although each judge of the panel wrote a separate opinion, all were clear in stating that the District Court possessed subject matter jurisdiction. Powell v. McCormack, 129 U.S.App.D.C. 354, 368, 384, 385, 395 F.2d 577, 591, 607, 608 (1968).

^34. We have determined that the case is not moot. See Part II, supra.

^35. Indeed, the thrust f respondents' argument on this jurisdictional issue is similar to their contentions that this case presents a nonjusticiable 'political question.' They urge that it would have been 'unthinkable' to the Framers of the Constitution for courts to review the decision of a legislature to exclude a member. However, we have previously determined that a claim alleging that a legislature has abridged an individual's constitutional rights by refusing to seat an elected representative constitutes a 'case or controversy' over which federal courts have jurisdiction. See Bond v. Floyd, 385 U.S. 116, 131, 87 S.Ct. 339, 347, 17 L.Ed.2d 235 (1966). To the extent the expectations of the Framers are discernible and relevant to this case, they must therefore relate to the special problem of review by federal courts of actions of the federal legislature. This is of course a problem of separation of powers and is to be considered in determining justiciability. See Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706 (1962).

^36. Brief for Respondents 39.

^37. Petitioners' complaint is predicated, inter alia, on several sections of Article I, Article III, and several amendments to the Constitution. Respondents do not challenge the substantiality of these claims.

^38. Act of May 31, 1870, § 23, 16 Stat. 146. The statute is now 28 U.S.C. § 1344.

^39. See Cong.Globe, 41st Cong., 2d Sess., 3872 (1870).

^40. Respondents rely on Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867 (1929). Barry involved the power of the Senate to issue an arrest warrant to summon a witness to give testimony concerning a senatorial election. The Court ruled that issuance o the warrant was constitutional, relying on the power of the Senate under Art. I, § 5, to be the judge of the elections of its members. Respondents particularly rely on language the Court used in discussing the power conferred by Art. I, § 5. The Court noted that under § 5 the Senate could 'render a judgment which is beyond the authority of any other tribunal to review.' Id., at 613, 49 S.Ct. at 455.

Barry provides no support for respondents' argument that this case is not justiciable, however. First, in Barry the Court reached the merits of the controversy, thus indicating that actions allegedly taken pursuant to Art. I, § 5, are not automatically immune from judicial review. Second, the quoted statement is dictum; and, later in the same opinion, the Court noted that the Senate may exercise its power subject 'to the restraints imposed by or found in the implications of the Constitution.' Id., at 614, 49 S.Ct. at 455. Third, of course, the statement in Barry leaves open the particular question that must first be resolved in this case: the existence and scope of the textual commitment to the House to judge the qualifications of members.

^41. In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from 'any Office of honor, Trust or Profit under the United States'; Art. I, § 6, cl. 2, provides that 'no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office'; and § 3 of the 14th Amendment disqualifies any person 'who, having previously taken an oath * * * to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.' It has been argued that each of these provisions, as well as the Guarantee Clause of Article IV and the oath requirement of Art. VI, cl. 3, is no less a 'qualification' within the meaning of Art. I, § 5, than those set forth in Art. I, § 2. Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J.Pub.L. 103, 111—115 (1968). We need not reach this question, however, since both sides agree that Powell was not ineligible under any of these provisions.

^42. Consistent with this interpretation, federal courts might still be barred by the political question doctrine from reviewing the House's factual determination that a member did not meet one of the standing qualifications. This is an issue not presente in this case and we express no view as to its resolution.

^43. Indeed, the force of respondents' other arguments that this case presents a political question depends in great measure on the resolution of the textual commitment question. See Part VI, B(2), infra.

^44. Since Art. I, § 5, cl. 1, applies to both Houses of Congress, the scope of the Senate's power to judge the qualifications of its members necessarily is identical to the scope of the House's power, with the exception, of course, that Art. I, § 3, cl. 3, establishes different age and citizenship requirements for membership in the Senate.

^45. Since the reign of Henry IV (1399—1413), no clergyman had sat in the House of Commons. 1 E. Porritt, The Unreformed House of Commons 125 (1963).

^46. Because the British do not have a written constitution, standing incapacities or disqualifications for membership in Parliament are derived from 'the custom and law of parliament.' 1 W. Blackstone's Commentaries *162; see id., at *175. The groups thus disqualified as of 1770 included aliens; minors; judges who sat in the House of Lords; clergy who were represented in their own convocation; persons 'attainted of treason or felony'; sheriffs, mayors, and bailiffs as representatives for their own jurisdictions; and certain taxing officials and officers of the Crown. Id., at *175—176. Not until the exclusion of John Wilkes, discussed infra, did Blackstone subscribe to the theory that, in addition, the Commons could declare ineligible an individual 'in particular (unspecified) circumstances * * * for that parliament' if it deemed him unfit to serve on grounds not encompassed by the recognized standing incapacities. As we explain, infra, this position was subsequently repudiated by the House in 1782. A Clerk of the House of Commons later referred to cases in which this theory was relied upon 'as examples of an excess of * * * jurisdiction by the Commons; for one house of Parliament cannot create a disability unknown to the law.' T. May's Parliamentary Practice 67 (13th ed. T. Webster 1924).

^47. In 1619, the Virginia House of Burgesses challenged the eligibility of certain delegates on the ground that they did not hold their plantations under proper patents from the Virginia Company in England. See generally 7 The Federal and State Constitutions, Colonia Charters, and Other Organic Laws 3783—3810 (F. Thorpe ed. 1909) (hereinafter cited as Thorpe). One of them, a Captain Warde, was admitted on condition that he obtain the necessary patent. The others, representatives from Martin's Brandon plantation, were excluded on the ground that the owner of the plantation had claimed that his patent exempted him from the colony's laws. See Journals of the House of Burgesses of Virginia: 1619—1658/59, pp. 4—5 (1915); M. Clarke, Parliamentary Privilege in the American Colonies 133—134 (1943). The questions presented by these two cases, therefore, seem to be jurisdictional in nature; that is, an attempt was made to gain representation for plantations over which the assembly may have had no power to act. Thus viewed these cases are analogous to the exclusions for failure to comply with standing qualifications. They certainly are not precedents which support the view that a legislative body could exclude members for mere character defects or prior misconduct disapproved by the assembly. See generally Clarke, supra, at 132—204; J. Greene, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies: 1689—1776, pp. 171—204 (1963).

^48. For example, in 1585 the Commonse xpelled a Doctor Parry for unspecified misbehavior. A Compleat Journal of the Votes, Speeches and Debates of the House of Lords and House of Commons Throughout the Whole Reign of Queen Elizabeth, of Glorious Memory 352 (S. D'Ewes ed. 1708); and in 1628 Sir Edmund Sawyer was expelled because he had sought to induce a witness to suppress evidence against Sir Edmund in testimony before the House. 1 H.C.Jour. 917.

^49. In expelling Sir Edmund Sawyer in 1628, the Commons declared 'him to be unworthy ever to serve as a Member of this House.' Ibid. Almost identical language was used in the expulsion of H. Benson in 1941. 2 id., at 301. But by 1642, the formula had been changed to 'disabled to serve any longer in this Parliament as a Member of this House. * * *' Id., at 703. (Emphasis added.) By the 18th century it was apparently well established that an expulsion by the House of Commons could last no longer than the duration of the Parliament from which the member was expelled. See 1 W. Blackstone's Commentaries *176.

^50. For example, in 1652, the Virginia House of Burgesses expelled two members for prior conduct disapproved by the assembly, Journals of the House of Burgesses, supra, at 85; and in 1683, Rhode Island expelled a member 'from acting in this present Assembly' for refusing to answer a court summons. 1 S. Arnold, History of the State of Rhode Island and Providence Plantations 289 (1859). See generally Clarke, supra, at 173—204.

^51. In 1726, the Massachusetts House of Representatives excluded Gershom Woodle, who had been expelled on three previous occasions as 'unworthy to be a Member.' 7 Journals of the House of Representatives of Massachusetts 1726—1727, pp. 4—5, 15, 68—69 (1926). In 1758, North Carolina expelled Francis Brown for perjury. He was re-elected twice in 1760 and excluded on both occasions; however, when he was elected at the 1761 general elections, he was allowed to take his seat. 5 Colonial Records of North Carolina 1057—1058 (1887); 6 id., at 374, 474, 662—663, 672 673 (1888). There may have been similar exclusions of two men elected in 1710 to the New Jersey Assembly. See Clarke, supra, at 197—198.

^52. Significantly, the occasional assumption of this broader expulsion power did not go unchallenged, Clarke, supra, at 196 202; and it was not supported by the only parliamentary precedent, the Walpole case.

^53. Pursuant to a general warrant, Wilkes was arrested, his home ransacked, and his private papers seized. In his later election campaigns, Wilkes denounced the use of general warrants, asserting that he was fighting for liberty itself. See 11 L. Gipson, the British Empire Before the American Revolution 213—214 (1965).

^54. The issue before the Commons was clear: Could the Commons 'put in any disqualification, that is not put in by the law of the land.' 1 H. Cavendish's Debates 384 (J. Wright ed. 1841). The affirmative answer was somewhat less than resounding. After Wilkes' third re-election, the motion to seat his opponent carried 197 to 143.

^55. The validity of the House's action against Wilkes rested to a large extent on the validity of the Walpole precedent. Taswell-Langmead's, supra, at 585. Thus, the House of Commons resolution expunging, as subversive to the rights of the whole electorate, the action taken against Wilkes was also a tacit repudiation of the similar action taken against Walpole in 1712.

^56. English law is apparently the same today. See T. May's Parliamentary Practice 105—108 (17th ed. B. Cocks 1964).

^57. The Council of Censors was established by the 1776 Pennsylvania Constitution. It was an elected body that was specifically charged with the duty 'to enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled to by the constitution.' Pa.Const. of 1776, § 47, 5 Thorpe 3091. See Pennsylvania Convention Proceedings: 1776 and 1790, Introduction, iv (1825).

^58. In discussing the case, respondents characterize the earlier action as an exclusion. The Council of Censors, however, stated that the

general assembly had resolved that the member 'is expelled from his seat.' Pennsylvania Convention Procedings, supra, at 89. The account of the dissenting committee members suggests that the term expulsion was properly used. They note that in February 1783 the assembly received a letter from the Comptroller General charging the assemblyman with fraud. Not until September 9, 1783, did the assembly vote to expel him. Presumably, he held his seat until that time. But, even if he had been excluded, arguably he was excluded for not meeting a standing incapacity, since the Pennsylvania Constitution of 1776 required assemblymen to be 'most noted for wisdom and virtue.' Pa.Const. of 1776, § 7, 5 Thorpe 3084. (Emphasis added.) In fact, the dissenting members of the Committee argued that the expelled member was ineligible under this very provision. Pennsylvania Convention Proceedings, supra, at 89.

Respondents cite one other exclusion during the period between the Declaration of Independence and the Constitutional Convention 11 years later. In 1780 the Virginia Assembly excluded John Breckenridge because he was a minor. Minority, of course, was a traditional standing incapacity, and Charles been cr rect in concluding that this exclusion been correct in concluding that this exlcusion was probably based upon an interpretation of the state constitutional requirement that members must be duly qualified according to law. Va.Const., 7 Thorpe 3816. See C. Warren, The Making of the Constitution 423, n. 1 (1928). Respondents, based upon their misinterpretation of the Pennsylvania case just discussed, criticize Charles Warren for concluding that there had been only one exclusion during this period. Our research, however, has disclosed no other cases.

^59. Wilkes had established a reputation both in England and the Colonies as a champion of free elections, freedom from arbitrary

arrest and seizure, and freedom of the press. See 11 Gipson, supra, at 191—222.

^60. See R. Postgate, That Devil Wilkes 171—172, 173—174 (1929). During the House of Commons debates in 1781, a member remarked that expelling Wilkes had been 'one of the great causes which had separated * * * (England) from America.' 22 Parl.Hist.Eng. 100—101 (1781).

The writings of the pamphleteer 'Junius'

The writings of the pamphleteer 'Junius' were widely reprinted in colonial newspapers and lent considerable support to the revolutionary cause. See 3 Dictionary of American History 190 (1940). Letter XVIII of the 'Letters of Junius' bitterly attacked the exclusion of Wilkes. This letter, addressed to Blackstone, asserted:

'You cannot but know, sir, that what was Mr. Wilkes's case yesterday may be yours or mine to-morrow, and that, consequently the common right of every subject of the realm is invaded by it. * * * If the expulsion of a member, not under any legal disability, of itself creates in him an incapacity to be elected, I see a ready way marked out, by which the majority may, at any time, remove the honestest and ablest men who happen to be in opposition to them. To say that they will not make this extravagant use of their power would be a language unfit for a man so learned in the laws as you are. By your doctrine, sir, they have the power: and laws, you know, are intended to guard against what men may do, not to trust to what they will do.' 1 Letters of Junius, Letter XVIII, p. 118 (1821).

^61. See Warren, supra, at 399—426.

^62. Dickinson also said that a built-in veneration for wealth would be inconsistent with the republican ideal that merit alone should determine who holds the public trust. 2 Farrand 123.

^63. On August 10, a delegate moved to reconsider the citizenship qualification. The delegate proposed to substitute a three-year requirement for the seven-year requirement already agreed upon. The motion passed. Id., at 251. However, when this proposal was considered on August 13, it was rejected. Id., at 265 266.

infra.

^64. Charles Pinckney proposed that the President, judges, and legislators of the United States be required to swear that they possessed a specified amount of unincumbered property. Benjamin Franklin expressed his strong opposition, observing that '(s)ome of the greatest rogues he was ever acquainted with, were the richest rogues.' Id., at 249. He voiced the fear that a property requirement would 'discourage the common people from removing to this Country.' Ibid. Thereafter, 'the Motion of Mr. Pinkney (sic) was rejected Motion of Mr. Pinkney (sic) was rejected by so general a no, that the States were not called.' Ibid. (Emphasis in original.)

^65. 'That the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution. * * * That the law of the land had regulated the qualifications of members to serve in parliament, and that the freeholders * * * had an indisputable right to return whom they thought proper, provided he was not disqualified by any of those known laws. * * * They are not occasional but fixed: to rule and govern the question as it shall arise; not to start up on a sudden, and shift from side to side, as the caprice of the day or the fluctuation of party shall direct.' 16 Parl.Hist.Eng. 589—590 (1769).

^66. Id., at 589.

^67. Wilkes had made essentially the same argument in one of his early attempts to have the resolutions denying him a seat expunged:

'This usurpation, if acquiesced under, would be attended with the most alarming consequences. If you can reject those disagreeable to a majority, and expel whom you please, the House of Commons will be self-created and self-existing. You may expel til you approve, and thus in effect you nominate. The original idea of this House being the representative of the Commons of the realm will be lost.' 18 Parl.Hist.Eng. 367 (1775).

^68. Charles Warren concluded that 'Madison's reference was undoubtedly to the famous election case of John Wilkes * * *.' Warren, supra, at 420, n. 1. It is also possible, however, that he was referring to the Parliamentary Test Act, 30 Car. 2, Stat. 2, c. 1 (1678), which had excluded Catholics as a group from serving in Parliament.

^69. Charles Warren, upon whose interpretation of these events petitioners rely, concluded that the Convention's decision to reject Gouverneur Morris' proposal and the more limited proposal of the Committee of Detail was an implicit adoption of Madison's position that the qualifications of the elected 'were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution.' 2 Farrand 249—250. See Warren, supra, at 420—421. Certainly, Warren argued, '(s)uch action would seem to make it clear that the Convention did not intend to grant to a single branch of Congress * * * the right to establish any qualifications for its members, other than those qualifications established by the Constitution itself * * *. For certainly it did not intend that a single branch of Congress should possess a power which the Convention had expressly refused to vest in the whole Congress.' Id., at 421. See 1 J. Story, Commentaries on the Constitution of the United States § 625, at 445 (1873). Although Professor Chafee argued that congressional precedents do not support this construction, he nevertheless stated that forbidding any additions to the qualifications expressed in the Constitution was 'the soundest policy.' Z. Chafee, Free Speech in the United States 256 (1941).

^70. See 10 W. Holdsworth, A History of English Law 540—542 (1938).

^71. Holdsworth notes that in the first edition of Blackstone's Commentaries Blackstone enumerated various incapacities and h en concluded that 'subject to these standing restrictions and disqualifications, every subject of the realm is eligible (for membership in the House of Commons) of common right.' 1 W. Blackstone's Commentaries *176. Blackstone was called upon in Commons to defend Wilkes' exclusion and the passage was quoted against him. Blackstone retaliated by writing a pamphlet and making two additions to later editions of his Commentaries in an effort to justify the decision of Parliament. Holdsworth, supra, at 540—541.

^72. Appendix D to Brief for Respondents 52.

^73. Warren, supra, at 422, n. 1. Charles Warren buttressed his conclusion by noting that the Massachusetts Constitution of 1780 'contained affirmative qualifications for Representatives and exactly similar negative qualifications for Senators.' Ibid. Apparently, these provisions were not considered substantively different, for each house was empowered in identical language to 'judge of the elections, returns and qualifications of their own members, as pointed out in the constitution.' Mass.Const., pt. 2, c. I, § 2, Art. IV, 3 Thorpe 1897, and § 3, Art. X, 3 Thorpe 1899. (Emphasis added.) See Warren, supra, at 422—423, n. 1.

^74. In No. 52 of The Federalist, Madison stated:

'The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. (He then enumerated the qualifications for both representatives and Senators.) * * * Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession or religious faith.' The Federalist Papers 326 (Mentor ed. 1961).

^75. Respondents dismiss Madison's assertion that the 'qualifications of the elected, * * * being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention,' as nothing more than a refutation of the charge that the new national legislature would be free to establish additional 'standing incapacities.' However, this conclusion cannot be reconciled with the pre-Convention history on this question, the Convention debates themselves, and, in particular, the delegates' decision to require a two-thirds vote for expulsion.

^76. At the same convention, Robert Livingston, one of the new Constitution's most ardent supporters and one of the State's most substantial landowners, endorsed this same fundamental principle: 'The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights.' 2 Elliot's Debates 292—293.

^77. Appendix D to Brief for Respondents 62.

^78. In 1797, during the 5th Congress, 1st Session, the House considered expelling Matthew Lyon, a Republican, for sedition. The vote to expel, however, was 49 to 45, and broke down largely along partisan lines. Althu gh Lyon's opponents, the Federalists, retained a majority in the 6th Congress, to which Lyon was reelected, and although there were political advantages to be gained from trying to prevent him from taking his seat, there was no effort made to exclude him. See Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J.Pub.L. 103, 123—127 (1968).

^79. Another Maryland representative was unsuccessfully challenged in 1808 on grounds almost identical to those asserted in the challenge of McCreery. See 18 Annals of Cong. 1848—1849 (1808). In 1844, the Senate declined to exclude John M. Niles, who was accused of being mentally incompetent, after a special committee reported him competent. Cong. Globe, 28th Cong., 1st Sess., 564—565, 602 (1844). In 1856, the House rejected an attempt to exclude Samuel Marshall for violating an Illinois law prohibiting state judges from running for other offices. 1 Hinds § 415. That same year, the Senate refused to exclude Lyman Trum-bull for violating the same Illinois law. Ibid.

^80. Between 1862 and 1867, both the House and Senate resisted several attempts to exclude members-elect who were accused of being disloyal to the Union during the Civil War. See, id., §§ 448, 455, 458; Senate Election, Expulsion and Censure Cases, S.Doc.No.71, 87th Cong., 2d Sess., 21 (1962) (hereinafter cited as Senate Cases).

^81. That same year the Senate also excluded a supporter of the Confederacy. Senate Cases 40. The House excluded two others shortly thereafter, one for the same offense, and another for selling appointments to the Military and Naval Academies. See 1 Hinds §§ 459, 464; 2 Hinds § 1273.

^82. This departure from previous House construction of its power to exclude was emphasized by Congressman William P. Fessenden: '(T)he power which we have under the Constitution to judge of the qualifications of members of the body is not a mere arbitrary power, to be exerted according to the will of the individuals who may vote upon the subject. It ought to be a power subject to certain rules and founded upon certain principles. So it was up to a very late period, until the rebellion. The rule simply was, if a man came here and presented proper credentials from his State, to allow him to take the ordinary oath, which we all took, to support the Constitution, and be admitted, and if there was any objection to him to try that question afterward.' Cong. Globe, 40th Cong., 2d Sess., 685 (1868).

^83. For example, in 1870, the House refused to exclude a Texas Congressman accused of a variety of criminal acts, 1 Hinds § 465; but in 1882 and again in 1900 the House excluded a member-elect for practicing polygamy. 1 Hinds §§ 473, 477—480. Thereafter, it apparently did not consider excluding anyone until shortly after World War I, when it twice excluded Victor L. Berger, an avowed Socialist, for giving aid and comfort to the enemy. Significantly, the House committee investigating Berger concluded that he was ineligible under the express provision of § 3 of the Fourteenth Amendment. 6 C. Cannon, Precedents of the House of Representatives of the United States §§ 56—59 (1935) (hereinafter cited as Cannon). Berger, the last person to be excluded from the House prior to Powell, was later re-elected and finally admitted after his criminal conviction was reversed. 65 Cong.Rec. 7 (1923).

The House next considered the problem in 1925 when it contemplated excluding John W. Langley for his alleged misconduct. Langley resigned after losing a criminal appeal, and the House therefore never voted upon the question. 6 Cannon § 238. The most recent exclusion attempt prior to Powell's occurred in 1933, when the House refused to exclude a Representative from Minnesota who had been convicted of sending defamatory matter through the mail. See 77 Cong.Rec. 73—74, 131—139 (1933).

The Senate has not excluded anyone since 1929; in that year it refused to seat a member-elect because of improper campaign expenditures. 6 Cannon § 180. In 1947, a concerted effort was made to exclude Senator Theodore G. Bilbo of Mississippi for allegedly accp ting gifts from war contractors and illegally intimidating Negroes in Democratic primaries. See 93 Cong.Rec. 3—28 (1947). He died, however, before a decision was reached.

^84. During the debates over H.R.Res.No. 278, Congressman Celler, chairman of both the Select Committee and the Judiciary Committee, forcefully insisted that the Constitution 'unalterably fixes and defines' the qualifications for membership in the House and that any other construction of Art. I, § 5, would be 'improper and dangerous.' 113 Cong.Rec. 4998. See H.R.Rep.No. 484, 43d Cong., 1st Sess., 11—15 (1874) (views of minority); H.R.Rep.No. 85, 56th Cong., 1st Sess., 56—77 (1900) (views of minority). In the latter report, the dissenters argued: 'A small partisan majority might render the desire to arbitrarily exclude, by a majority vote, in order to more securely intrench itself in power, irresistible. Hence its exercise is controlled by legal rules. In case of expulsion, when the requisite two-thirds can be had, the motive for the exercise of arbitrary power no longer exists, as a two-thirds partisan majority is sufficient for every purpose. * * * The power of exclusion is a matter of law, to be exercised by a majority vote, in accordance with legal principles, and exists only where a member-elect lacks some of the qualifications required by the Constitution.' Id., at 76—77.

^85. 'Determining the basis for a congressional action is itself difficult; since a congressional action, unlike a reported judicial decision, contains no statement of the reasons for the disposition, one must fall back on the debates and the committee reports. If more than one issue is raised in the debates, one can never be sure on what basis the action was predicated. Unlike a court, which is presumed to be disinterested, in an exclusion case the concerned house is in effect a party to the controversy that it must adjudicate. Consequently, some members may be inclined to vote for exclusion though they strongly doubt its constitutionality.' 81 Harv.L.Rev., at 679.

^86. In fact, the Court has noted that it is an 'inadmissible suggestion' that action might be taken in disregard of a judicial determination. McPherson v. Blacker, 146 U.S. 1, 24, 13 S.Ct. 3, 6, 36 L.Ed.2d 869 (1892).

^1. U.S.Const., Art. I, § 2, cl. 2:

'No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.'

^2. The Constitutional Convention had the occasion to consider several proposals for giving Congress discretion to shape its own qualifications for office and explicitly rejected them. James Madison led the opposition by arguing that such discretion would be

'an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution.' 2 M. Farrand, Records of the Federal Convention of 1787, pp. 249—250 (1911). Alexander Hamilton echoed that same conclusion:

'The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.' The Federalist Papers, No. 60, p. 371 (Mentor ed. 1961).

And so, too, the early Congress of 1807 decided to seat Representative-elect William McCreery on the ground that its power to 'judge' was limited by the enumerated qualifications.

'The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed b an authority equal to that which framed the Constitution at first * * *. Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only.' 17 Annals of Cong. 872 (1807) (remarks of Rep. Findley, Chairman of House Committee of Elections).

Constitutional scholars of two centuries have reaffirmed the principle that congressional power to 'judge' the qualifications of its members is limited to those enumerated in the Constitution. 1 J. Story, Commentaries on the Constitution 462 (5th ed. 1891); C. Warren, The Making of the Constitution 420—426 (1928). See also remarks by Emmanuel Celler, Chairman of the House Select Committee which inquired into the qualifications of Adam Clayton Powell, Jr., and which recommended seating him: 'The Constitution lays down three qualifications for one to enter Congress—age, inhabitancy, citizenship. Mr. Powell satisfies all three. The House cannot add to these qualifications.' 113 Cong.Rec. 4998.

^3. Baker v. Carr, 369 U.S. 186, 242, 82 S.Ct. 691, 723, 7 L.Ed.2d 663, n. 2 (Douglas, J., concurring.)

^4. The question whether Congress has authority under the Constitution to add to enumerated qualifications for office is itself a federal question within the particular expertise of this Court. Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706. Where that authority has been exceeded, redress may be properly sought here. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60. Congress itself suspected no less in deciding to exclude Rep. Powell:

'(C)ases may readily be postulated where the action of a House in excluding or expelling a Member may directly impinge upon rights under other provisions of the Constitution. In such cases, the unavailability of judicial review may be less certain. Suppose, for example, that a Member was excluded or expelled because of his religion or race, contrary to the equal protection clause, or for making an unpopular speech protected by the first amendment * * *. (E) xclusion of the member-elect on grounds other than age, citizenship, or inhabitancy could raise an equally serious constitutional issue.' H.R.Rep.No.27, 90th Cong., 1st Sess., 30 (1967).

See also 113 Cong.Rec. 4994.

^5. Case of Victor Berger, 6 C. Cannon, Precedents of the House of Representatives of the United States § 56 (1935).

^6. Id., at § 122.

^7. See, .e.g., Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235.

^8. 1 A. Hinds, Precedents of the House of Representatives of the United States § 481 (1907).

^9. 113 Cong.Rec. 4997.

^10. S.Doc. No. 71 on Senate Election, Expulsion and Censure Cases from 1789 to 1960, 87th Cong., 2d Sess., 140 (1962).

^11. Hearings on A Protest to the Seating of William Langer, before the Senate Committee on Privileges and Elections, 77th Cong., 1st Sess., 820 (Nov. 3, 18, 1941) (hereinafter Hearings).

^12. Hearings 821.

^13. Hearings 820.

^14. 87 Cong.Rec. 3—4 (1941).

^15. S.Rep.No.1010, 77th Cong., 2d Sess. (1942).

^16. It was alleged that he had conspired as Governor to have municipal and county bonds sold to a friend of his who made a profit of $300,000 on the purchase, and purportedly rebated as much as $56,000 to Langer himself. Hearings 822—823.

^17. At the retrial of his conviction for conspiring to interfere with the enforcement of federal law, he was said to have paid money to have a friend of his, Judge Wyman, be given control of the litigation, and to have 'meddled' with the jury. Hearings 20—42, 120—130.

^18. He was charged as a lawyer with having accepted $2,000 from the mother of a boy in prison on the promise that he would obtain his pardon, when he knew, in fact, that a pardon was out of the question. He was also said to have counseled a defendant-client of his to marry the prosecution's chief witness in order to prevent her from testifying against him. And finally, it was suggested that he once bought an insurance policy during trial from one of the jurors sittn g in judgment of his client. Hearings 820—830.

^19. 87 Cong.Rec. 3—4, 34, 460 (1941); 88 Cong.Rec. 822, 828, 1253, 2077, 2165, 2239, 2328, 2382, 2412, 2472, 2564, 2630, 2699, 2759, 2791, 2801, 2842, 2858, 2914, 2917, 2959, 2972, 2989, 3038, 3051, 3065, 5668 (1942).

^20. 88 Cong.Rec. 2401.

^21. Ibid.

^22. 88 Cong.Rec. 2474.

^23. Ibid.

^24. Ibid.

^25. 88 Cong.Rec. 2483.

^26. 88 Cong.Rec. 2484.

^27. Although the House excluded Adam Clayton Powell by over two-thirds vote, it was operating on the assumption that only a majority was needed. For the suggestion that the House could never have rallied the votes to exclude Powell on the basis of a two-thirds ground rule, see Note, 14 How.L.J. 162 (1968); Note, 42 N.Y.U.L.Rev. 716 (1967).

^28. 88 Cong.Rec. 2488.

^29. 88 Cong.Rec. 2490.

^30. 88 Cong.Rec. 2488. Senator Knox of Pennsylvania had defended Senator-elect Reed Smoot of Utah in 1903 against charges that he ought to be excluded because of his affiliation with a group (Mormons) that countenanced polygamy. S.Doc.No.71, 87th Cong., 2d Sess., 97.

^1. See e.g., United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 202—204, 89 S.Ct. 361, 363—364, 21 L.Ed.2d 344; Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178—179, 89 S.Ct. 347, 350—351, 21 L.Ed.2d 325.

^2. See Gojack v. United States, 384 U.S. 702, 707, 86 S.Ct. 1689, 1693, 16 L.Ed.2d 870, n. 4 ('Neither the House of Representatives nor its committees are continuing bodies'); McGrain v. Daugherty, 273 U.S. 135, 181, 47 S.Ct. 319, 331, 71 L.Ed. 580. Forty-one of the present members of the House were not members of the 90th Congress; and two of the named defendants in this action, Messrs. Moore and Curtis, are no longer members of the House of Representatives. Moreover, the officer-employees of the House, such as the Sergeant at Arms, are re-elected by each new Congress. See n. 15, infra.

^3. See also United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303; United States v. Aluminum Co. of America, 148 F.2d 416, 448. The Court has only recently concluded that there was no 'controversy' in Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113, because of 'the fact that it was most unlikely that the Congressman would again be a candidate for Congress.' Id., at 109, 89 S.Ct., at 960. It can hardly be maintained that the likelihood of the House of Representatives' again excluding Powell is any greater.

^4. See also United States v. W. T. Grant Co., 345 U.S. 629, 632—633, 73 S.Ct. 894, 897; Local 74, United Brotherhood of Carpenters & Joiners v. NLRB, 341 U.S. 707, 715, 71 S.Ct. 966, 970, 95 L.Ed. 1309; Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29; Hecht Co. v. Bowles, 321 U.S. 321, 327, 64 S.Ct. 587, 88 L.Ed. 754; United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 307—310, 17 S.Ct. 540, 546—547, 41 L.Ed. 1007.

^5. With the exception of Gray, the 'continuing controversy' cases relied on by the petitioners were actions by the Government or its agencies to halt illegal conduct of the defendants, and, by example, of others engaged in similar conduct. See cases cited, supra, nn. 1, 3, 4. The principle that voluntary abandonment of an illegal practice will not make an action moot is especially, if not exclusively, applicable to such public law enforcement suits.

'Private parties may settle their controversies at any time, and rights which a plaintiff may have had at the time of the commencement of the action may terminate before judgment is obtained or while the case is on appeal, and in any such case the court, being informed of the facts, will proceed no further in the action. Here, however, there has been no extinguishment of the rights * * * of the public, the enforcement of which the government has endeavored to procure by a judgment of a court * * *. The defendants cannot foreclose those rights nor prevent the assertion thereof by the government as a substantial trustee for the public under the act of congress, by (voluntary cessation of the challenged conduct).' United States v. Trans-Missouri Freight Assn., 166 U.S., at 309, 17 S.Ct., at 546.

The considerations of public enforcement of a statutory or regulatory scheme which inhere in those cases are not present in this litigation.

^6. Certainly in every decision relied on by the petitioners the Court did not reject the mootness argument solely on the ground that the illegal practice had been voluntarily terminated. In each it proceeded to determine that there was in fact a continuing controversy.

^7. House Resolution No. 2 provided in pertinent part:

'(2) That as punishment Adam Clayton Powell be and he hereby is fined the sum of $25,000, said sum to be pai to the Clerk to be disposed of by him according to law. The Sergeant at Arms of the House is directed to deduct $1,150 per month from the salary otherwise due the said Adam Clayton Powell, and pay the same to said Clerk until said $25,000 fine is fully paid.

'(3) That as further punishment the seniority of the said Adam Clayton Powell in the House of Representatives commence as of the date he takes the oath as a Member of the 91st Congress.'

The petitioners' argument that the case is kept alive by Powell's loss of seniority, see ante, at 496, is founded on the mistaken assumption that the loss of seniority is attributable to the exclusion from the 90th Congress and that seniority would automatically be restored if that exclusion were declared unconstitutional. But the fact is that Powell was stripped of seniority by the action of the 91st Congress, action which is not involved in this case and which would not be affected by judicial review of the exclusion from the 90th Congress. Moreover, even if the conduct of the 91st Congress were challenged in this case, the Court would clearly have no power whatsoever to pass upon the propriety of such internal affairs of the House of Representatives.

^8. Article I, § 5, of the Constitution specifically empowers each House to 'punish its Members for disorderly Behaviour.'

^9. The salary claim is personal to Congressman Powell, and the other petitioners therefore clearly have no further interest in this lawsuit.

^10. The Philippines Senate was composed of 24 Senators, 22 of whom were elected, and two of whom were appointed by the Governor General. Alejandrino was one of the two appointees. See 271 U.S., at 531—532, 46 S.Ct., at 601.

^11. Under the Philippine Autonomy Act, 39 Stat. 545, this Court had jurisdiction to examine by writ of error the final judgments and decrees of the Supreme Court of the Philippine Islands in cases under the Constitution or statutes of the United States. A subsequent statute substituted the writ of certiorari. 39 Stat. 726.

^12. 'Section 18 (of the Autonomy Act) provides that the Senate and House respectively shall be the sole judges of the elections, returns and qualifications of their elective members, and each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds expel an elective member. The Senators and Representatives shall receive an annual compensation for their services to be ascertained by law and paid out of the treasury of the Philippine Islands. Senators and Representatives shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses and in going to and returning from the same; and for any speech or debate in either house they shall not be questioned in any other place.' 271 U.S., at 532, 46 S.Ct., at 601.

^13. The petitioners rely on the following passage from Bond v. Floyd, 385 U.S. 116, 128, 87 S.Ct. 339, 345, 17 L.Ed.2d 235, n. 4, as dispositive of their contention that the salary claim prevents this case from being moot:

'A question was raised in oral argument as to whether this case might not be moot since the session of the House which excluded

Bond was no longer in existence. The State has not pressed this argument, and it could not do so, because the State has stipulated that if Bond succeeds on this appeal he will receive back salary for the term from which he was excluded.'

I do not believe that this offhand dictum in Bond is determinative of the issue of mootness in this case. In the first place, as the Court in Bond noted, it was not there contended by any party that the case was moot. Moreover, contrary to the implication of the statement, the legislative term from which Bond was excluded had not ended at the time of the Court's decision. (The Court's decision was announced on December 5, 1966; Bond's term of office expired on December 31, 1966.) In any event, he had not been seated in a subsequent term, so the continuing controversy had not been rendered clearly moot by any action of the Georgia House, as it has here by the House of Representatives of the 91st Congress. No one suggested in Bond that the money claim was the only issue left in the case. Furthermore, the considerations which governed the Court's decision in Alejandrino were simply not present in Bond. Because of the State's stipulation, there was no doubt, as there is here, see infra, at 570-571, that the Court's decision would lead to effective relief with respect to Bond's salary claim. And finally, there was no suggestion that Bond had an alternative remedy, as Powell has here, see infra, at 571—572, by which he could obtain full relief without requiring the Court to decide novel and delicate constitutional issues.

^14. Alejandrino was the only petitioner in the case, and since he was an appointed Senator, it appears that there was no group of voters who remained without representation of their choice in the Senate during his suspension.

^15. Act of Oct. 1, 1890, § 6, 26 Stat. 646, 2 U.S.C. § 83.

^16. U.S.Const., Art. I, § 6; 2 U.S.C. § 47.

^17. 2 U.S.C. §§ 80, 78.

^18. 2 U.S.C. § 35.

^19. 2 U.S.C. § 34.

^20. 2 U.S.C. § 48.

^21. The respondents allege without contradiction that the Sergeant at Arms does not have sufficient funds to pay Congressman Powell's back salary claims. Separate appropriations for the salaries of Congressmen are made in each fiscal year, see, e.g., 80 Stat. 354, 81 Stat. 127, 82 Stat. 398, and, according to the respondents, 'it is the custom of the Sergeant to turn back to the Treasury all unexpended funds at the end of each fiscal year.' Thus, the only funds still held by the Sergeant are said to be those appropriated for the present fiscal year commencing July 1, 1968.

^22. 'The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress * * *.' 28 U.S.C. § 1491. The district courts have concurrent jurisdiction over such claims only in amounts less than $10,000. 28 U.S.C. § 1346.

^23. United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52. The petitioners suggest that the inability of the Court of Claims to grant such relief might make any remedy in that court inadequate. But since Powell's only remaining interest in the case is to collect his salary, a money judgment in the Court of Claims would be just as good as, and probably better than, mandatory relief against the agents of the House. The petitioners also suggest that the Court of Claims would be unable to grant relief because of the pendency of Powell's claim in another court, 28 U.S.C. § 1500, but that would, of course, constitute no obstacle if, as I suggest, the Court should order this action dismissed on grounds of mootness.

^24. It is possible, for example, that the United States in such an action would not deny Powell's entitlement to the salary but would seek to offset that sum against the amounts which Powell was found by the House to have appropriated unlawfully from Government coffers to his own use.

^25. Relying on Bank of Marin v. England, 385 U.S. 99, 101, 87 S.Ct. 274, 276, 17 L.Ed.2d 197, the petitioners complain that it would impose undue hardship on Powell to force him to 'start all over again' now that he has come this far in the present suit. In view of the Court's remand of this case for further proceedings with respect to Powell's remedy, it is at least doubtful that remitting him to an action in the Court of Claims would entail much more cost and delay than will be involved in the present case. And the inconvenience to litigants of further delay or litigation has never been deemed to justify departure from the sound principle, rooted in the Constitution, that important issues of constitutional law should be decided only if necessary and in cases presenting concrete and living controversies.