Abstract

http://ssrn.com/abstract=2366957
 


 



Standing for the Structural Constitution


Aziz Z. Huq


University of Chicago Law School

October 10, 2013

Virginia Law Review, Vol. 99, No. 7, 2013
U of Chicago, Public Law Working Paper No. 461

Abstract:     
Who speaks in federal court for the structural principles of the federal Constitution? Under familiar practice — endorsed by the Supreme Court in its 2011 decision Bond v. United States — it is not solely the institutions empowered directly by federalism or the separation of powers but also individual litigants who can raise structural constitutional objections. Such individual standing for the structural constitution is unusual because, in effect, it enables a species of third-party standing elsewhere condemned by the Court. This Article analyzes individual standing for the structural constitution from both doctrinal and political economy perspectives. Such individual standing, I contend, conflicts with Article III’s larger ambition to exclude from federal court those controversies with excessive externalities. Consideration of structural litigation’s political economy further shows that enlarging the pool of litigants by allowing individual as well as institutions to sue is unlikely to yield closer conformity to the Constitution given interest group dynamics. As an alternative to the current regime, the Article specifies a straitened regime of narrow justiciability that is more harmonious with Article III goals and more likely to secure fidelity to the structural constitution.

Number of Pages in PDF File: 90

Keywords: Standing; federalism; separation of powers

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Date posted: December 14, 2013 ; Last revised: February 11, 2014

Suggested Citation

Huq, Aziz Z., Standing for the Structural Constitution (October 10, 2013). Virginia Law Review, Vol. 99, No. 7, 2013; U of Chicago, Public Law Working Paper No. 461. Available at SSRN: http://ssrn.com/abstract=2366957

Contact Information

Aziz Z. Huq (Contact Author)
University of Chicago Law School ( email )
1111 East 60th Street
Chicago, IL 60637
United States
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