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Wednesday, March 14, 2007

More on religion and standing

Cass Sunstein has this op-ed in the Boston Globe, defending the Court's Flast exception to the no-taxpayer-standing rule and urging the Court to affirm the Seventh Circuit's decision in Hein v. Freedom from Religion Foundation.  As I suggested a few days ago, responding to Jack Balkin, it's not as clear to me (as, perhaps, it was to James Madison) that government spending, to which I object, on religion-related matters injures me in a way that is meaingfully distinguishable from the way government spending on anything else injures me. 

Professor Sunstein's claim, though, is that the reason for the Flast rule is "simple":

The Constitution bans the establishment of a religion by government, and a major point of this ban is to ensure that the power to tax and spend would not be used to favor one religion over another or to support religion in general.

Let's put aside questions about whether it is / was (or should be today) a "major point" of the Establishment Clause to prevent public expenditures that "support religion in general."  It's still not clear to me why one couldn't make (pretty much) the same argument with respect to other constitutional provisions or, indeed, structural features.  If we need taxpayer standing to vindicate the "point" of the Establishment Clause, then why don't we need it to vindicate the "point" of, say, "the separation of powers" or "the enumerated-powers principle"?  Is it because we suspect that a violation of the latter "principle" will, at some point, create an obvious case-or-controversy (e.g., as in Lopez), but some spending-related violations of the Establishment Clause might not (other than the injury allegedly done to the conscience of one who objects to the spending decision)?

Posted by Rick Garnett on March 14, 2007 at 04:46 PM in Constitutional thoughts | Permalink


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I've never seen the point in the restrictions on taxpayer standing in suits against the government. Taxpayers have a right to scrutinize the government. It seems highly specious that the Court would take the position that "well, since government needs to pass so many laws, it would be highly cumbersome to let busybodies challenge all of them for whatever reason." That seems a blatant sort of question-begging, for it presupposes that the government is justified in passing so many laws and shouldn't be bothered with so many suits. (Incidentally, the same skepticism goes for the argument for administration of the courts.)

Anyway, the establishment clause, among others, is basically a limitation on a whole class of Congressional action that would be, in general, bad policy. What if we passed another amendment based on policy that forbade welfare. Now, unless the Court allowed taxpayer standing, no one could ever challenge it, provided that legislatures just paid it out of the general fund.

Posted by: Tim Kowal | Mar 18, 2007 2:34:09 AM

So many rhetorical questions. Since the government has no special authority over matters of religion (quite the contrary), and since religion is a matter of fundamental importance, why not allow taxpayers to police illegitimate exercises of executive power? Why make it easier for the executive to violate religious freedom by insulating its actions from legal challenge? Why should a government, acting in all of our names, be permitted to use collective funds to promote ends that are clearly beyond its authority, without having to answer in court for its otherwise illegal behavior? And given the (amply documented) historical basis of challenges to government spending on religion -- and some of us do think Madison was right about this -- why overturn forty years of established law to weaken existing protections? Why should we abandon stare decisis here, and with hardly a mention?

Posted by: anon | Mar 14, 2007 10:01:01 PM

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