A standing symposium: Marghlar's take

This post was authored by our regular commenter Marghlar, and forms part of our mini symposium on standing in light of Hein. Simon's opening post appears here; Pat's response is here.

Standing is a funny thing. It often brings out the worst in legal thinkers, I think precisely because it is such an big doctrinal house built on such a shallow textual foundation. Elaborate rules with complicated exceptions proliferate, and over time the doctrine has eclipsed both text and principle. I want to emphasize that although I think Simon has made a number of important mistakes in his post, he is in very good company. I think just about everyone has difficulty thinking clearly about standing; certainly every fault I will accuse Simon of below has been committed by any number of SCOTUS justices.

Now to the main point: Simon has spent a long time assailing a hill that I was not defending (I'll let Pat speak for himself as to what he was arguing). Nobody disagrees that you need injury to have standing. That is crushingly obvious. Likewise, I was not arguing that any time that the Constitution is violated, we should jump through hoops to give somebody standing to bring that violation before a court; I like separation of powers, I think that standing is an important limit on the judiciary, and I do not like jurisprudence that alters its principles in order to achieve convenient results.

Simon has obscured the key question here. He has reminded us that we need injury to have standing, and did a good job explaining why we have that rule. The problem is that he has spent a long time repeating that injury is necessary without grappling with the thorny question of what injury consists of. The key question underpinning the legitimacy of Flast and its progeny is whether an establishment causes an injury to citizens at large. My position is that the Constitution indicates that establishment causes concrete injury to individual citizens in a way that is different from
the large number of other functional restrictions it places upon government.

Before I explain why this is the case, I'm going to rebut some common (and incorrect)objections to this statement. All of the following statements are incorrect -- and all get trotted out again and again in discussions of standing:

1. Establishment is not a concrete injury because it doesn't cause appreciable financial harm (wrong: we routinely allow standing for truly de minimis financial injuries, and allow standing in numerous cases where no financial value is at stake).

2. Establishment is not a concrete injury because it wasn't a cognizeable harm at common law in 1791 (or 1867) (wrong: we freely allow the creation of new legal rights which give rise to standing when infringed -- the affirmative right to free speech didn't exist at common law, but it readily gives rise to standing today).

3. Establishment isn't a concrete injury because it is primarily mental rather than financial or physical (this version, reincarnated this week by Justice Scalia, is obviously wrong -- look at the aesthetic harm cases of environmental standing).

4. Establishment isn't a concrete injury because it is spread too broadly across the citizenry -- i.e. there isn't a small enough pool of litigants with standing.

This last proposition seems to animate the thinking of a lot of political conservatives regarding standing, and I think it is as clearly wrong as the first three. The animating principle seems to be that, at its heart, standing is about docket control, and I think that's wrong. Jurisdiction is about docket control, while standing is about having the right kind of cases presented to courts: cases with adverse parties who will litigate concrete disputes in a way that furthers the interests of justice and keeps the courts confined to a role as arbiters rather than legislators.

It is easy to imagine cases in which each and every citizen of the United States would have standing. Imagine a statute that declares that no citizen of the United States may express a political opinion of any kind, in any forum whatsoever. Nearly every resident of this country would have a good claim that this law chilled their political speech, and thus the class of potential litigants would equal the population of the U.S.

Thus, establishment standing in the general citizenry isn't improper because it is invokable by any citizen of the U.S. Nor is it improper because establishment is a conceptual or dignitary harm rather than a financial or physical one. Rather, if we are going to claim that establishment isn't a concretized injury that gives rise to standing, we have to do so analogically, by arguing that it more resembles the kind of claims that we leave to the political process to be resolved than the kinds we bring to court.

Seen this way, the dispute less clearly favors either side. Simon can rightly claim that establishment resembles, say, a presentment clause violation in that it harms the citizenry in general rather than a few people in specific (like a false arrest). However, this is only one factor; as we've seen above, the size of the pool of people with standing can't be dispositive. On the other side of the dispute, I'd list some of the following factors I believe make establishments more like judicial rights than political rights:

1. As I noted in my original comment, originalists should look closely at Madison's Memorial & Remonstrance -- a fervent writing by the Establishment Clause's author that was widely circulated, and which quite clearly argued that establishments directly harm each and every member of the citizenry.

2. The Establishment Clause wasn't placed in the structural portions of the Constitution (the areas that typically create structural limits that rarely or never give rise to standing). It was placed in the Bill of Rights, and specifically in the First Amendment, every other provision of which contains an individual right. This is strong structural evidence that the Establishment right is a broadly shared individual right, not merely a collective right.

3. Those harmed by Establishment tend to experience it as a fairly personal offense -- a feeling of insult arising from the fact that their government is endorsing a particular sect or religion and thereby either excluding them or cheapening their religion. This reminds me very much of the aesthetic harm cases, in which the harm arises from viewing something that displeases us. I can take someone to court over knowing defamation, even if it cost me nothing but offense. Establishment seems like a similar principle to me, and less like the more abstract displeasure of having the President violate the Recess Appointments Clause in some manner.

To be sure, this is only a very brief discussion of the topic, and the back and forth over the nature of the establishment right could surely last a long number of posts. But I think it is by no means easy to assert an obvious victory for either side. I tend to think the establishment right is personal, and therefore violations of it create standing for offended parties. I think there is significant historical evidence for this point as an original matter, and I think it is a better interpretation of text and the principles underlying it. Thus, the context of my brief comment before would have been as follows:

1. I think establishment was both intended to be, and is correctly read as, an individual right shared broadly across the population.

2. As a result of this, I am skeptical of doctrinal innovations that interpret the case or controversy language to cut off vindication of what seems to me to be a personal right.

3. Ergo, I think that those who want to argue that we should curtail or eliminate taxpayer standing in Establishment cases bear the burden of showing either why it is NOT a personal right (a burden I think has not been adequately taken on to date) or else demonstrating how the right will continue to be vindicated in the future.

I think I've rambled on long enough here. I hope Simon won't take offense: as I said before, I think he is in very good company in skipping this important step, and I look forward to engaging with him on it.