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Dead Constitution See other Dead Constitution Articles Title: American Citizens Get High Court Kiss-Off American citizens get a high court kiss-off Jul. 13, 2007 12:00 AM Two recent federal court cases illustrate something I suspect most Americans would find shocking and appalling: A citizen, acting as a citizen, does not have standing to stop unconstitutional action by the federal government. The first case involved a challenge to President Bush's faith-based initiative, which encourages the delivery of governmental services through religious organizations. The Freedom from Religion Foundation and some of its members sued to stop the federal government from spending money to hold conferences promoting the initiative, arguing that this violated the First Amendment's Establishment Clause. Now, that's a stretch. It's a long way from holding a conference to establishing a church. However, the U.S. Supreme Court said, in essence, it doesn't matter if it's a conference or a church. These plaintiffs didn't have standing to sue to challenge the federal government's action. The Supreme Court's made-up standing jurisprudence holds that a citizen or a taxpayer can't challenge the constitutionality of federal action just because of being a citizen or a taxpayer. Instead, a demonstration must be made that an injury has been suffered that is particularized and distinguishable from that suffered by all citizens and taxpayers. In other words, the federal government can behave unconstitutionally, so long as it is even-handed about it. The second case involved a challenge to the Bush administration's warrantless surveillance program. The administration had acknowledged it was listening in on conversations between people in the United States with those in foreign countries if it believed one of the parties had an al-Qaida connection, without getting approval from a Foreign Intelligence Surveillance Court judge. The American Civil Liberties Union sued on behalf of some academics, journalists and lawyers who conversed with people they thought might be a target of the program. The administration had acknowledged the program. Federal statutes provide for the Foreign Intelligence Surveillance Act to be the exclusive mechanism for such activity. So, a straightforward constitutional question was presented: Does the president have surveillance authority, either inherent or as a result of the 9/11 use-of-force resolution against al-Qaida, that supercedes the FISA limitation and does not violate the Fourth Amendment's search and seizure provisions? The 6th Circuit Court of Appeals, however, said that question wasn't properly before the court. The plaintiffs couldn't prove that they had been surveilled, so they didn't have standing to sue. Moreover, they couldn't require the government to disclose whether they had been surveilled, since that would reveal state secrets. The U.S. Supreme Court's position that citizens, qua citizens, can't sue to stop unconstitutional federal action is supposedly based on the Constitution's limitation on the court's jurisdiction to "cases" and "controversies." However, there is nothing in the language of the Constitution or the discussion of the founders about the role of the court to support the court's constricted view of standing. In fact, just the opposite. In Federalist No. 78, Alexander Hamilton wrote that "the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority." An intermediary for the people, or the citizenry. No hint of the need for particularized harm there. The founders could not imagine the executive playing the law-making role it has taken on in the modern era. But Hamilton's charge to the court applies with equal vigor to executive branch action. The standing requirement supposedly keeps the court from being inundated with frivolous claims. However, state courts, which commonly allow taxpayer or citizen suits, don't seem to be more burdened than the federal courts. Frivolous claims should be dismissed on their merits. The standing rule excludes equally the meritless and the meritorious. This is an example of the "judicial inactivism" in protecting fundamental constitutional rights and liberties Clint Bolick decries in his recent book, David's Hammer: The Case for an Activist Judiciary. Justice Antonin Scalia's concurring opinion in the faith-based initiative case was particularly scurrilous. Scalia writes dismissively about "Psychic Injury" and "mental angst" over the government's allegedly unconstitutional behavior. However, the injury to citizens, qua citizens, from unconstitutional behavior by government isn't simply a ruffle of the psyche. It is the threat to their rights and liberties provided by the Constitution, which it is the duty of the court to protect. There's no more consequential an injury than that.
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#1. To: BlueEyedGirl, *libertarians* (#0)
ping
Why settle for the lesser of two evils, vote Cthulhu!
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