Standing for the Structural Constitution
90 Pages Posted: 14 Dec 2013 Last revised: 11 Feb 2014
Date Written: October 10, 2013
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.
Keywords: Standing; federalism; separation of powers
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