Posted by: bridget | 1 March 2007

Supreme Court to Decide Establishment Case

The Supreme Court heard oral arguments in a case that centers around the question of when taxpayers can sue the government under the Establishment Clause (Hein v. Freedom From Religion Foundation).

“The Supreme Court decided decades ago that taxpayers generally do not have the right, or “standing,” to challenge government spending decisions simply because they do not agree with them. But it carved out an exception in 1968, in a case called Flast v. Cohen, for taxpayers to challenge congressional spending that violated the establishment clause.”

Let’s analyze and remember a bit of history.  No where in the Constitution are ordinary citizens given the right to oversee general governmental functions; in fact, we explicitly have a republic, not a democracy, where we elect people to make decisions for us.  Don’t like it?  Elect someone else.

The Founders decided, however, that there should be a floor of rights for the citizens; that some governmental actions would not be allowed under any circumstances.  The result of that is the Bill of Rights.  The Supreme Court could take the very straightforward rule that ordinary citizens, absent a specific harm, may not sue the government for performing functions within its power, but may sue for violations of the Bill of Rights.

One issue is that the First Amendment states that, ” Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”  In the instant case, only the Executive is charged with harm.  Now, we could pretend that Barron v. Mayor & City Council of Baltimore was never decided and ignore the resulting madness from that decision; or, we could hold that citizens may sue any government official for violations of the Establishment Clause.

The problem with the former approach is that, after the 1930s, there are very few limits on the power of the federal government.  As the federal government had been one of limited and enumerated powers, any move which fell outside constitutional proscriptions limits would be actionable in court.  There is really very limited room for Constitutional violations, especially of the speech or religious variety, that can come about from non-Congressional lawmaking.  In a post-1930s world, this is simply not the case.  Should we restrict ourselves to Congress, which ignores administrative agencies and the Executive, most governmental actions (even of the legislative nature) cannot be stopped, regardless of any constitutional violation.



  1. Hey sugar! This is not related to the post, but I was gonna ask you, go ahead and take my old blog off the blogroll–I’m fully switched over to my new blog!

  2. The incorporation doctrine- one which originally held a great deal of promise- has been so selectively applied as to make it nothing more than a tool for left wing justices to impose almost any new fangled right on the states while ignoring actually enumerated rights. Blah!

  3. Congrats. You’re the first removed blog from my blogroll. :p

    The problem with the incorporation doctrine actually extends back to Barron v. Mayor. I’ll post on that in a few. Unless we are going to undo that mistake, we’re stuck with a jurisprudential cesspool. “Blah” is right!

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