A standing symposium: Pat's take

This post is part of our mini symposium on standing in light of Hein. Simon's opening post appears here; regular commenter Marghlar has responded here.

The Constitution

Article III, Section 2. 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;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

The Issue

Is it possible for the federal government to violate the Constitution without giving rise to any "case" or "controversy" which would allow the Supreme Court to have jurisdiction to review that violation?

Simon's answer is that he doesn't care. As Marghlar notes, he is in good company, with a number of excellent commentators and judges, even justices, on his side. I do not say that they are all wrong. I do say, though, that if the answer to the question is "yes," that is a troubling answer, and we should look very closely indeed at any analysis which leads us to that result. Perhaps that close look will reveal that the analysis is correct, and that is indeed the answer. If so, I can accept it. But if there is any room in the analysis to avoid such a result, we not only can but must take advantage of that room. In other words, the standing doctrine should be interpreted to avoid eliminating the Court's jurisdiction over most potential violations of an entire clause of the Bill of Rights, unless that result is compelled by the text of the Constitution.

To use Simon's structuring, my major premise is not that every clause of the Constitution must be subject to judicial review (more accurately, that every clause of the Constitution must be capable of being enforced by the judiciary when violated by another branch of government). My major premise is that such a result would be unusual and bad policy, and thus should be avoided unless the text of the Constitution requires it.

This is an important distinction. I don't insist that jurisdiction to enforce the Establishment Clause must absolutely exist. I simply say that one must explore the issue more closely, which, thus far, Simon and his fellow travelers in the academy and the judiciary refuse to do. Why must we look at it more closely?

Standing is largely prudential, not constitutional

We must explore the policy implications of such a result because much of the standing doctrine is not firmly rooted in the text of Article III. As Judge Bork once said (which Justice O'Connor quoted approvingly in Allen v. Wright):

"All of the doctrines that cluster about Article III - not only standing but mootness, ripeness, political question, and the like - relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government." Vander Jagt v. O'Neill, 226 U.S. App. D.C. 14, 26-27, 699 F.2d 1166, 1178-1179 (1983) (Bork, J., concurring).

A prudential rule of jurisdiction is one not required by the Constitution, but believed by the Court to be a better practice in light of more general considerations of comity between the branches of government. Justice Rehnquist laid out some of the prudential rules of standing in Valley Forge:

Beyond the constitutional requirements, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing. Thus, this Court has held that "the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S., at 499 . 10 In addition, even when the plaintiff has alleged [454 U.S. 464, 475] redressable injury sufficient to meet the requirements of Art. III, the Court has refrained from adjudicating "abstract questions of wide public significance" which amount to "generalized grievances," pervasively shared and most appropriately addressed in the representative branches. Id., at 499-500. 11 Finally, the Court has required that the plaintiff's complaint fall within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153 (1970). 12

Indeed, the only constitutional standing requirement identified by Justice Rehnquist in Valley Forge is that the plaintiff have suffered some injury. That's it. The other traditional standing issues have been created by the Court and are not, by long precedent, constitutionally required.

Even the constitutional standing requirement is not easily and precisely defined

The Court has also acknowledged that even the constitutional component of standing is not precisely defined, and thus subject to some shaping for reasons of policy. In Allen, the majority opinion said:

Like the prudential component, the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition. The injury alleged must be, for example, "'distinct and palpable,'" Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979) (quoting Warth v. Seldin, supra, at 501), and not "abstract" or "conjectural" or "hypothetical," Los Angeles v. Lyons, 461 U.S. 95, 101 -102 (1983); O'Shea v. Littleton, 414 U.S. 488, 494 (1974). The injury must be "fairly" traceable to the challenged action, and relief from the injury must be "likely" to follow from a favorable decision. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S., at 38 , 41. These terms cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise.

Nature of prudential rules requires balancing competing policy interests and values

The Court has adopted these prudential rules over time in order to protect some very important values. Respect for co-equal branches of government. Avoiding abusive amounts of litigation brought by nit-pickers. Preventing the Court from issuing mere advisory opinions. Insuring that issues are fully litigated by people with a real stake in the outcome of the case. Those are all fine values, and worth fully promoting.

But any prudential decision must ultimately consider all important values which will be affected by the decision. Preventing a tyranny of the majority from violating fundamental provisions of the Bill of Rights is also an important value. Protecting the rule of law by finding a way for the Court to weigh in against a crystal-clear violation of a very specific provision of the Constitution is also an important value. Preventing the slow formulation of a theocracy is an important value.

Thus, in making analyzing the prudential considerations of standing in Establishment Clause cases, one necessarily must consider those other values and how they will be impacted by the decision. As we are making rules to guide future cases as well as the present, it is important to look at potential future consequences of the proposed rule in other cases. Many is the time Justice Scalia has admonished the Court and others that the Court's job is to consider the impact of rulings on all future cases, not merely the case before it that day.

Identification of the competing values

We must, then, consider whether strictly applying the prudential components of the standing doctrine to Establishment Clause cases would, in fact, leave a Constitutional right with no non-political remedy. If it would, then we must weigh the cost of that result against the benefits gained by the prudential components of the standing doctrine to determine whether, given all the competing values, the greater cost comes from applying the prudential standing rules or from making some exception to those prudential rules because of the unique nature of the Establishment Clause. Even within the actual constitutional component of the standing doctrine, we must make this investigation, because its "terms cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise." If it's not a "mechanical exercise" than judgment must be applied, and judgment entails balancing different interests to find the best result. But one must balance all the interests affected, not just a select few.

Contrary to Simon's suggestion, I do not suggest putting the cart before the horse. I do not demand that all constitutional violations must have a justiciable remedy. I say only that a jurisdictional rule which put an entire clause of the Constitution largely outside the purview of the Court would be an anomaly and an unfortunate result, one which should be avoided, if doing so is permissible under the actual text of the Constitution. Thus far, Simon and his fellow travelers refuse to engage in this analysis at all, so I will not at this point actually conduct the analysis, to determine whether and who might have standing in an Establishment Clause case. That is not, today, the debate.

Nature of "harm" protected against by the Establishment Clause is fundamentally different from other clauses

Keep in mind, as others have noted, that the Establishment Clause is functionally different from other clauses in the Bill of Rights. Violations of the other provisions would clearly impact, directly, particular individuals. A law prohibiting certain speech will harm those who make such speech. A law taking someone's private property without just compensation will harm those whose property is taken. The other components of the Bill of Rights are aimed, by their own terms, at protecting individual rights. The Establishment Clause, however, is not so clearly aimed at protecting an individual right. Its protection is far more general. It protects all of us, as a group, from a particular government action. By its own terms, it may have no individual victim if it is violated, merely a general harm inflicted on all at large. By its nature, then, it might require that the "harm" component (the one constitutional component of the standing doctrine) be defined differently than in all other cases.

In addition to the arguments I have already made, let us consider the particular definition of "harm." I have not suffered physical injury if the government outlaws my speech. The Court's jurisprudence shows that monetary harm is also not a required component of "harm" for standing purposes. No, the essential harm lies in the government passing a law prohibiting me from doing something which I have a right to do, or the government taking an action against me which it is prohibited from taking. What constitutes "harm" thus depends inherently on the nature of the right protected by the Constitution. To suffer Fourth Amendment harm, government officers must trespass upon my property, interfere with my bodily freedom, or otherwise actually take action against my person or property. The mere existence of a law providing for the potential of such trespass or interference does not provide standing. But in First Amendment jurisprudence, the potential for unfavorable governmental action against me under some statute can be sufficient to provide standing.

Thus, one could easily develop a doctrine which recognizes that the "harm" required for standing in cases implicating individual rights protected by the Bill of Rights must be individual harm, while the "harm" required for standing in cases implicating an inherently group right may be a group harm. Because of the rather amorphous nature of the specifics of the standing doctrine, other caveats and limitations could be jurisprudentially introduced to prevent over-use of such an expanded standing doctrine.

Conclusion

Again, I do not assert that every constitutional violation by the government must give rise to standing by somebody, nor even that every violation of the Establishment Clause must give rise to standing by somebody. No, I suggest only that if application of the prudential rules of standing would deny judicial review of most or all violations of an entire clause of the Bill of Rights, then such an anomalous result should cause us to reexamine the policy concerns which led to the original adoption of those prudential rules, to determine if the countervailing policies and values might compel a different result in applying the standing doctrine to legislation over that particular clause of the Bill of Rights.

In other words, Simon, it does you no good to stand on your soapbox promoting the glorious wonders of standing. I agree, standing is a most wondrous invention. So is Dawn™, but I wouldn't use it in the dishwasher -- it only works in the sink, and does a great deal of mischief in the dishwasher. Likewise, the standing doctrine may be good for 99% of the Bill of Rights but bad for this 1%, the Establishment Clause. (Note that by "good" I mean "required by the Constitution or sound prudential policy concerns" and by "bad" I mean the opposite). You must analyze the specifics of each component of the standing doctrine, prudential and constitutional alike, as they would apply to most Establishment Clause cases, and explain why the values and policies which led to the prudential components, as well as to the specific requirements of the constitutional component, are sufficiently strong to outweigh the conflicting values which would be harmed if standing were denied for an entire clause of constitutional violations. Finally, you must also address whether the different nature of the right protected by the Establishment Clause doesn't necessarily provide for a different type of harm being required for standing.