News from the Vault: What the Judicial Appointment of Allison Jones Rushing Means for the First Amendment
In her writings, she has rejected the separation of church and state while arguing that “village secularists” and other “offended observers” should not be allowed to challenge government actions that violate the Establishment Clause which guarantees the separation of church and state.
In Valley Forge Christian College v. Americans United for Separation of Church and State, the Court rejected the idea that the Establishment Clause confers to citizens a personal constitutional right to a government that does not establish religion.
Held: Respondents do not have standing, either in their capacity as taxpayers or as citizens, to challenge the conveyance in question. Pp. 454 U. S. 471-490.
(a) The exercise of judicial power under Art. III is restricted to litigants who can show "injury in fact" resulting from the action that they seek to have the court adjudicate. Pp. 454 U. S. 471-476.
(b) Respondents are without standing to sue as taxpayers, because the source of their complaint is not a congressional action but a decision by HEW to transfer a parcel of federal property, and because the conveyance in question was not an exercise of Congress' authority conferred by the Taxing and Spending Clause, but by the Property Clause. Cf. Flast v. Cohen, supra. Pp. 454 U. S. 476-482.
The Supreme Court could end many Establishment Clause disputes by enforcing Article III standing requirements on those bringing the lawsuits, who many times have no more stake in the issues than being “offended observers.”
The plaintiffs in those cases plainly asserted a "personal right" to have the Government act in accordance with their views of the Constitution; indeed, we see no barrier to the assertion of such claims with respect to any constitutional provision. But assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning.
1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;10 —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Article III...is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power...
Article III of the Constitution limits the "judicial power" of the United States to the resolution of "cases" and "controversies." The constitutional power of federal courts cannot be defined, and indeed has no substance, without reference to the necessity "to adjudge the legal rights of litigants in actual controversies." Liverpool S.S. Co. v. Commissioners of Emigration, 113 U. S. 33, 113 U. S. 39 (1885). The requirements of Art. III are not satisfied merely because a party requests a court of the United States to declare its legal rights...The power to declare the rights of individuals and to measure the authority of governments, this Court said 90 years ago, "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy."
Implicit in the foregoing [ "offended observer" status ] is the philosophy that the business of the federal courts is correcting constitutional errors, and that "cases and controversies" are, at best, merely convenient vehicles for doing so, and, at worst, nuisances that may be dispensed with when they become obstacles to that transcendent endeavor. This philosophy has no place in our constitutional scheme.