One of the government's primary arguments in the various lawsuits against the NSA's warrantless wiretap program is that no one can prove that they have "standing" to sue. The plaintiffs can't show that their specific communications were subject to an NSA wiretap without having the NSA reveal who they are surveilling; and since the NSA won't reveal that information they can't show standing. It's a perfect catch-22 that effectively renders the program immune to all legal challenges. But there's something going on here that deserves to be looked at, and it's the doctrine of standing itself. Where does it come from?
The doctrine of standing says that in order to bring a suit, a party must show that they have suffered an actual injury as a result of the action being challenged and that the court can redress that injury by ruling in their favor. There are some subtleties and caveats in particular circumstances, but this is the essence of the standing doctrine. But where does this doctrine come from? Not from the text of the Constitution. It's never mentioned there. Here's what the Constitution actually says:
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.
Nothing at all about plaintiff standing. It just says that the judicial power extends to all cases and controversies arising under the Constitution. This means, obviously, all cases where a citizen alleges that the government has acted unconstitutionally. It turns out, as Glenn Reynolds tells us in a 1992 article in the UPenn Law Review, that the doctrine of standing is an excellent example of penumbral reasoning. He writes:
Where does it come from? That is, what does the mention in Article III of "cases" and "controversies" have to do with the requirements of injury in fact, causality, and redressability that courts have imposed in order to limit access to federal judicial power?
As a textualist or a practitioner of "original understanding" jurisprudence, one might imagine that the way to proceed would be to determine the meaning of "case" and "controversy" as those terms were understood by the Framers. Or, as Judge Bork, the leading contemporary advocate of originalist strict construction, explains: "All that counts is how the words used in the Constitution would have been understood at the time." This approach might lead to some interesting questions: What did the Framers mean by a "case" or a "controversy"? How were those words understood at the time? Could a "controversy" be something different from a "case"--say, an abstract disagreement about the law, leading to a request for an advisory opinion? Or do the terms really mean the same thing? And, if so, why did the Framers use different words? As it turns out, however, the inquiry into the meaning of Article III has nothing to do with these sorts of questions; for although the standing requirement is often said to stem from the "case or controversy" language of Article III, the question of where the standing requirement comes from turns out to be addressed in very different terms.
The answer, in fact, seems to be a penumbral one. As Judge Bork himself puts it:
"All of the doctrines that cluster about Article III--not only standing but mootness, ripeness, political question, and the like--relate in *1339 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."
Or, If I read Judge Bork correctly, the courts decided upon the need for standing and related doctrines by looking at the overall structure of the Constitution--in which powers of one sort were given to the political branches, and in which powers of another sort were given to the judiciary--and by extracting from that structure an idea expressed nowhere in the document's words: the idea that access to courts should be limited to concrete disputes.
It is precisely this sort of penumbral reasoning that conservatives object to so strongly in Griswold and other cases, yet here they embrace it fully. Reynolds cites O'Connor's opinion in Allen v Wright to the effect that the standing doctrine is "founded in concern about the proper--and properly limited--role of the courts in a democratic society." But there is nothing in democratic theory or reality that requires the doctrine of standing. There are many democratic nations that do not have such a doctrine and that cannot be reasonably thought to make them any less democratic.
In Canada, for example, the Supreme Court even issues advisory opinions at the request of the government. If the Canadian parliament is considering a bill that some think may have constitutional problems, they can ask the Supreme Court to take a look and issue an advisory opinion on whether the law would be constitutional or not. That sort of thing is absolutely forbidden in American law by the standing doctrine, but that hardly makes us more democratic than Canada.
Reynolds then goes on to show how the doctrine of standing reads much into Article III that is not there, again citing O'Connor's explanation first:
Justice O'Connor further acknowledged that this is where related questions, such as causation, come from:
These questions and any others relevant to the standing inquiry must be answered by reference to the Art. III notion that federal courts may exercise power only "in the last resort, and as a necessity," and only when adjudication is "consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process."
Well, the notion that federal courts may exercise power "only in the last resort" and "as a necessity" does not appear anywhere in my copy of Article III. It is as absent as the words "birth control" from the Bill of Rights. In fact, the language about how the judicial power "shall" extend to "all Cases, in Law and Equity" seems to me to make the "last resort" approach rather dubious.
But no matter--although its application and scope may be (and are) subject to much dispute, the doctrine of standing is regarded as hard-headed constitutional law. But it does not come from the text at all, or from the popularly described version of the original understanding in which we are merely concerned about the meaning of words at the time of the Framing. In fact, it cuts somewhat against the text, and makes sense only if Article III is interpreted in light of a much larger idea concerning the proper role of courts in a democratic society, an idea that does not appear in the text of the Constitution but is somehow extracted from various structural characteristics of the document.
How is this different from Griswold? Not very. Of course, Judge Bork and Justice O'Connor might respond that I have misunderstood them. They might say that their discussion is not directed at uncovering the meaning of "cases" or "controversies," but rather at discovering the place of judicial review in a system of separated powers. That, however, is exactly my point. I do not mean to knock separation of powers, which is obviously an important concept, but it too is one that is nowhere mentioned in the Constitution. Rather, it is derived from the Constitution's allocation of powers and from our knowledge of the Framers' overall goal of setting up a well-structured government.
But, once again, the same thing can be said about the right of privacy. Like separation of powers, the right of privacy is not specifically mentioned in the Constitution, though it can be derived from the Bill of Rights' protection of individual liberty combined with what we know about the Framers' overall goals in setting up a free society in which individuals' rights to liberty (and, dare I say it, the pursuit of happiness) would be recognized and in which the powers of government would be properly limited. One might believe that Justice Douglas got it wrong, and that Justice O'Connor and Judge Bork have it right, but the methodology seems the same. And it is Justice Douglas's methodology--not the result in Griswold--on which most critics focus.
Reynolds is absolutely right. Those who argue for "strict construction" or for most forms of originalism or textualism attack such penumbral reasoning when they do not like the outcome, arguing that it's unprincipled and unconnected to the text and meaning of the Constitution. Yet they fully embrace such reasoning when they like the result, without ever changing their anti-penumbral rhetoric in the cases where they don't like the result.
- Log in to post comments
I don't know how this would work vis-a-vis constitutionality, but it seems to me that an exception should be made to confer standing on abstract issues in a Catch-22 situation which precludes the possibility of a concrete case.
Allow me to tell you a little story: Tennessee General Assembly (legislature) proposes an amendment to the state constitution barring same-sex marriage. Under the state constitution, any such proposal must be adopted by two consecutive legislatures, and must be "published" six months prior to the election of the second legislature to vote on it. Following me? The first legislature adopted the proposal on May 19, 2004, ran obscure ads on June 20, 2004, and the election of the next legislature was on November 2, 2004. They CLEARLY missed the six month publication requirement. ACLU of Tennessee sues. They lose -- court finds that plaintiffs (which included all ACLU members in the state, 3 state legislators, another gay rights org, and several individuals) don't have standing.
Sure the legislature didn't follow the perfectly clear rule as stated, without any interpretation, on the face of the constitution. But, the plaintiffs cannot prove that they were harmed in a way different from the rest of the undifferentiated public. So, the gay-bashing legislature can simply act with impunity. And the conservatives complain about a judiciary that refuses to follow the constitution -- as written!
Standing doctrine is a complete mess and a real tragedy for many civil rights attorneys.
Ed, you and your readers might be interested to know that under the tutelage of Olson and Titus, we thought carefully about this issue of standing (a real sticky wicket) when drafting both the Read the Bills Act (RTBA) and the Write the Laws Act (WTLA). We wanted to give these bills teeth. The best we could do was that in each bill Congress explicitly addresses standing with a policy that anyone tried under a law passed with Congressional violation of the RTBA and WTLA procedures can present evidence of the procedural violation(s) and the judge can throw the entire case out on those grounds alone.
But getting back to standing, how could this penumbra be fixed? This seems to me to be a vexing problem for Constitutional government -- a deep flaw in the document itself (that no one can hold the Executive and Legislative branches accountable for unconstitutional activity).
Jim-
There are a couple of different standing questions that I think ought to be addressed. The first is that Congress, or any member thereof, ought to have standing to take the executive branch to court for failing to execute laws that they've passed. The courts currently do not allow that. The second is that any individual citizen ought to be able to take the government to court over any law they believe to be unconstitutional, regardless of whether they can show some tangible harm. It's an interesting question, though, as to how that could come about. The standing doctrine is based upon court rulings. If the legislature were to pass a law providing standing in the two cases above, would the courts allow it? Or would they say that only the courts can determine standing, not the legislature? I don't know the answer to that.
I just finished reading the new book, "James Madison and the Struggle for the Bill of Rights", by Richard Labunski. There is extensive analysis of the arguments made for and against a Bill of Rights during the process of ratification of the Constitution and in the First Congress.
It makes clear that one of the major concerns expressed against a Bill of Rights was that its existence would be erroneously interpreted in the future as precluding the recognition of other, non-enumerated, intrinsic rights of citizens.
That the "I don't see the right to written in the constitution so it must not exist, and courts that recognize it are engaged in judicial legislation" argument is even entertained today indicates that was a valid concern.
Incidentally, Labunski's book is a well-written and very interesting take on Madison's role in the ratification of the Constitution and the drafting, congressional approval, and ratification of the Bill of Rights. It takes a "great man" historical approach, attributing tremendous influence on the outcome of these events to Madison's personality, character, and actions.
Those who argue for "strict construction" or for most forms of originalism or textualism attack such penumbral reasoning when they do not like the outcome, arguing that it's unprincipled and unconnected to the text and meaning of the Constitution. Yet they fully embrace such reasoning when they like the result, without ever changing their anti-penumbral rhetoric in the cases where they don't like the result.
"Legal realism" is the end point. Once you have been through all the slippery constitutional doctrines like penumbras and balancing tests, and remember that judges are people too, you see that any result is obtainable in close constitutional cases, and it is hard to avoid the conclusion of Justice Holmes: "The life of the law is not logic; it is experience."
The case or controversy requirement is often said to mean that the controversy must be about a specific dispute over some tangible or cognizable interest as opposed to a generalized complaint held commonly by all - the latter is said to be "not justiciable," "political question," etc - to be resolved by legislatures not courts. Since the injury alleged with the NSA spying is common to all, there is no case or controversy. Once someone finds out, however, that they have been illegally monitored, standing would attach, and this would be true despite the fact that the injury alleged is still part of a generalized complaint common to all, now that the plaintiff is alleging a specific injury to his interests. The point being that "the NSA will not reveal information" doesnt equate "no one can ever find out." Standing can arise. And Judge Bork is as result-oriented as they come.
In a very real sense, standing is an extension of the "political question" doctrine. It is a way for courts to avoid hearing cases related to policy issues. It is a bar to bringing cases in a whole area of law until the courts decide those cases are no longer a problem.
Environmental cases are a good example. Up until the passage of various enviro-friendly laws in the early 1970s, it was almost impossible to bring a suit on such grounds because no one had standing; afterwards, no problem. I predict a similar epiphany will occur in national security isses, but we have a ways to go yet.
Famously, William O. Douglas argued that geographic features could possess standing, in his dissent to Sierra Club v. Morton.
"The critical question of 'standing' would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard."