Abstract

http://ssrn.com/abstract=1135789
 
 

Citations (3)



 
 

Footnotes (428)



 


 



'We the People': John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action


Donald L. Doernberg


Pace University - School of Law


California Law Review, Vol. 73, No. 1, 1985

Abstract:     
As the Constitution's Preamble demonstrates, sovereignty in the United States actually resides in the people, not in government. John Locke, perhaps the most influential political philosopher for the Framers, made clear that properly constituted government was a trustee for the people, and James Madison echoed that sentiment. The Supreme Court's standing doctrine, however, often makes it impossible for the people to call the government-as-trustee to account. This article suggests that constitutional rights are held individually, to be sure, but also collectively by the body politic. Scholars and courts have repeatedly recognized collective interests, but most often evaluate them when they appear to conflict with individual rights. The article suggests that in cases where the issue is whether government violated the Constitution, individual and collective interests, far from being opposed, actually coincide. In a significant subclass of those cases, standing doctrine makes impossible judicial protection of collective interests and judicial insistence that government operate within proper bounds. The effect is that certain constitutional provisions effectively exist only at the whim and during the good will of the government. The existence and recognition of collective rights require a modification of standing doctrine to allow the courts to protect such rights, but without creating universal standing, which would threaten the courts with a tidal wave of litigation from officious intermeddlers.

Number of Pages in PDF File: 67

Keywords: John Locke, standing, collective rights, sovereignty, government as trustee

Accepted Paper Series


Download This Paper

Date posted: May 26, 2008  

Suggested Citation

Doernberg, Donald L., 'We the People': John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action. California Law Review, Vol. 73, No. 1, 1985. Available at SSRN: http://ssrn.com/abstract=1135789

Contact Information

Donald L. Doernberg (Contact Author)
Pace University - School of Law ( email )
78 North Broadway
White Plains, NY 10603-3796
United States
914-422-4368 (Phone)
914-422-4168 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 2,174
Downloads: 184
Download Rank: 94,912
Citations:  3
Footnotes:  428

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.297 seconds