Bench Memos

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A Flastic Plastic Constitution


Walter Weber’s article on NRO today, about the heartening prospect that Flast v. Cohen (1968) might be overturned by the Supreme Court, deserves wide notice. The demise of Flast would be good news indeed. I would add a word on the subject, without expecting that Mr. Weber will necessarily endorse it. The reason Flast was so essential to the vitality of establishment clause litigation was really twofold. First, as Weber points out, a traditional hurdle had to be jumped with respect to the standing-to-sue doctrine, which holds that some particularized injury must be suffered by a plaintiff, not a diffuse complaint shared by countless others similarly situated (e.g., as taxpayers). Second, the tight focus on the standing issue in Flast permitted Chief Justice Warren to elide entirely the related issue of whether any and all litigation under the establishment raises political questions, unfit for adjudication.

The standing doctrine and the political questions doctrine are close cousins, both animated by the Constitution’s requirement that a real “case or controversy” come to the courts in a form they can resolve, involving actual rights, injuries, and remedies. In Flast, the political questions doctrine is the dog that does not bark (or at most, it whimpers quietly once or twice). Chief Justice Warren assumed throughout his opinion that if only he could shoehorn the litigants into a rewritten version of the standing doctrine, then the issue they raised was certainly not political but was perfectly “justiciable,” in the legal term of art. But neither Warren nor anyone else has ever provided a reason for believing that the establishment clause poses anything other than a political question. How, after all, does “Congress shall make no law respecting an establishment of religion” even begin to mark out the boundaries of a concrete individual right that courts can vindicate? No good answer has ever been given to that question. If Flast is overruled, it may also be the beginning of bigger things in reforming our understanding of judicial power under the Constitution.

Tags: Franck


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