Standing in the Shadow of Popular Sovereignty
67 Pages Posted: 10 Apr 2015 Last revised: 4 Jan 2016
Date Written: December 31, 2015
Who may speak for a state or the United States in federal court? Recent decisions by executive officials to not defend laws they believe are unconstitutional have reignited a long-standing debate among scholars and commentators over whether other parties might have Article III standing to represent what is variously described as “a State’s,” “the government’s,” or “the People’s” interest in defense and enforcement of the law. Yet there has been no examination of the implications of the American principle of popular sovereignty for Article III standing to defend such sovereign interests. The Framers broke with English political tradition by separating the sovereignty of the new American republic from its government, creating a new political form in which “the People” were said to retain sovereign authority. Scholars have examined the implications of popular sovereignty in a variety of areas of law, but they have yet to consider its implications for standing to defend sovereign interests.
This Article argues that in a republic founded on the principle of popular sovereignty no party may announce the sovereign people’s constitutional views — the Framers did not give any governmental actor this power. Beyond the narrow confines of clear constitutional text and long-settled commitments, the sovereign’s interest in constitutional disputes is frequently unknown. Moreover, the Framers separated the government into competitive branches to protect popular sovereignty and refine citizens’ constitutional views through public deliberation. Therefore, just as no party may speak for the sovereign, no official may speak for the government as a whole.
Consequently, executive officials defend and enforce laws based on the sovereign’s command that they “take Care that the Laws be faithfully executed,” rather than any power to speak for the sovereign or the government. This precludes standing to represent sovereign interests by parties without similar constitutional duties. Accordingly, this Article calls for a fundamental rethinking of Article III standing to enforce and defend laws, grounding standing in express duties of government officials, rather than in their ability to wear the mantle of sovereignty.
Keywords: Article III standing, popular sovereignty
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