政治问题理论的衰落与重构

政治问题作为可推翻的"自然推定",属于可诉性理论的阻却事由要件。其理论发轫于联邦党人对宪法"特定条款"的阐述。为了应对将政治问题理论区分为经典形式与审慎形式所带来的司法操作性难题,布伦南大法官通过描述政治问题的六个特征,构建了政治问题的确认标准。然而,法院在适用政治问题确认标准的过程中所形成的政治问题理论的循环悖论,以及学界对政治问题理论存在合理性的质疑使得其经典形式出现变异、审慎形式日渐消亡。在激励相容理论基础上重构政治问题理论,可以尝试化解学界对政治问题免于司法审查理论基础的种种非议。

The political question doctrine is the judicial principle that a court should refuse to decide on an issue involving the exercise of discretionary power by the executive or legislative branch of government.As a rebuttable'natural presumption',the political question is exempt from judicial review.The political question doctrine was originated from the elaboration of the 'particular provisions'in the Constitution by the Federalists.Depending on whether the waiver of the judicial review power is based on the text,structure and history of the Constitution itself or on other prudential considerations,the political question doctrine may be classified into the classic form and the prudential form.In order to solve the operational problems caused by such classification,Justice Brennan summarized six features of the'political question'in Baker v.Carr,thus providing the criteria for ascertaining political questions.However,when the courts applied the six criteria to specific cases,the circular dilemma that was produced in the process of judgment rendered such criteria unable to distinguish'political' questions from'legal'questions effectively.In addition,scholars have questioned the rationality of having such a doctrine,since judicial review has been established firmly as a cornerstone in constitutional law.Consequently,the political question doctrine in general in on the decline,with its classic form being substantially changed,and its prudential form graduating away.Therefore,the political question doctrine should be reconstructed.Scholars have provided some foundation in this regard when they suggest reconstructing the doctrine with such terms as 'autonomous determination','self-monitoring'and'self-enforcing'.This also indicates that we might reconstruct the political question doctrine on the basis of the incentive-compatible theory,which might help to respond to challenges to the theoretical foundation of the exemption of political questions from judicial review.