War powers and the political question doctrine

A fundamental and potentially healthy tension exists between democratic government, under which the majority ordinarily prevails, and judicial review, by which the judiciary may check unconstitutional actions of the political branches. A balance must be struck between the two concepts, or one could consume the other. Unchecked majoritarianism could erode not only constitutional protections of individual and minority rights, but also federalism and the constitutional separation of powers. Judicial review without limit would result in the degradation of democratic government and a corresponding rule by judges. "First published by the University of Colorado Law Review, 49 U. Colo. L. Rev. 1 (1977); permission to reprint must be requested from the publisher.