# Flast v. Cohen/Concurrence Douglas

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United States Supreme Court
392 U.S. 83
Flast v. Cohen
Argued: March 12, 1968. --- Decided: June 10, 1968
Mr. Justice DOUGLAS, concurring.
While I have joined the opinion of the Court, I do not think that the test it lays down is a durable one for the reasons stated by my Brother HARLAN. I think, therefore, that it will suffer erosion and in time result in the demise of Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. It would therefore be the part of wisdom, as I see the problem, to be rid of Frothingham here and now.
I do not view with alarm, as does my Brother HARLAN, the consequences of that course. Frothingham, decided in 1923, was in the heyday of substantive due process, when courts were sitting in judgment on the wisdom or reasonableness of legislation. The claim in Frothingham was that a federal regulatory Act dealing with maternity deprived the plaintiff of property without due process of law. When the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention. It was that judicial attitude, not the theory of standing to sue rejected in Frothingham, that involved 'important hazards for the continued effectiveness of the federal judiciary,' to borrow a phase from my Brother HARLAN. A contrary result in Frothingham in that setting might well have accentuated an ominous trend to judicial supremacy.
But we no longer undertake to exercise that kind of power. Today's problem is in a different setting.
Most laws passed by Congress do not contain even a ghost of a constitutional question. The 'political' decision, as distinguished from the 'justiciable' ones, occupy most of the spectrum of congressional action. The case or controversy requirement comes into play only when the Federal Government does something that affects a person's life, his liberty, or his property. The wrong may be slight or it may be grievous. Madison in denouncing state support of churches said the principle was violated when even 'three pence' was appropriated to that cause by the Government. It therefore does not do to talk about taxpayers' interest as 'infinitesimal.' The restraint on 'liberty' may be fleeting and passing and still violate a fundamental constitutional guarantee. The 'three pence' mentioned by Madison may signal a monstrous invasion by the Government into church affairs, and so on.
The States have experimented with taxpayers' suits and with only two exceptions now allow them. A few state decisions are frankly based on the theory that a taxpayer is a private attorney general seeking to vindicate the public interest. Some of them require that the taxpayer have more than an infinitesimal financial stake in the problem. At the federal level, Congress can of course define broad categories of 'aggrieved' persons who have standing to litigate cases or controversies. But, contrary to what my Brother HARLAN suggests, the failure of Congress to act has not barred this Court from allowing standing to sue and from providing remedies. The multitude of cases under the Fourth, as well as the Fourteenth Amendment, are witness enough.
The constitutional guide is 'cases' or 'controversies' within the meaning of § 2 of Art. III of the Constitution. As respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of § 2, Art. III. See Ex parte McCardle, 7 Wall, 506, 74 U.S. 506, 19 L.Ed. 264. But where there is judicial power to act, there is judicial power to deal with all the facets of the old issue of standing.
Taxpayers can be vigilant private attorneys general. Their stake in the outcome of litigation may be de minimis by financial standards, yet very great when measured by a particular constitutional mandate. My Brother HARLAN'S opinion reflects the British, not the American, tradition of constitutionalism. We have a written Constitution; and it is full of 'thou shalt nots' directed at Congress and the President as well as at the courts. And the role of the federal courts is not only to serve as referee between the States and the center but also to protect the individual against prohibited conduct by the other two branches of the Federal Government.
There has long been a school of thought here that the less the judiciary does, the better. It is often said that judicial intrusion should be infrequent, since it is 'always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors'; that the effect of a participation by the judiciary in these processes is 'to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.' J. Thayer, John Marshall 106, 107 (1901).
The late Edmond Cahn, who opposed that view, stated my philosophy. He emphasized the importance of the role that the federal judiciary was designed to play in guarding basic rights against majoritarian control. He chided the view expressed by my Brother HARLAN: 'we are entitled to reproach the majoritarian justices of the Supreme Court * * * with straining to be reasonable when they ought to be adamant.' Can the Supreme Court Defend Civil Liberties? in Samuel, ed., Toward a Better America 132, 144 (1968). His description of our constitutional tradition was in these words:
'Be not reasonable with inquisitions, anonymous informers, and secret files that mock American justice. Be not reasonable with punitive denationalizations, ex post facto deportations, labels of disloyalty, and all the other stratagems for outlawing human beings from the community of mankind. These devices have put us to shame. Exercise the full judicial power of the United States; nullify them, forbid them; and make us proud again.' Id., 144-145.
The judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government it is often the one and only place where effective relief can be obtained. If the judiciary were to become a super-legislative group sitting in judgment on the affairs of people, the situation would be intolerable. But where wrongs to individuals are done by violation of specific guarantees, it is abdication for courts to close their doors.
Marshall wrote in Marbury v. Madison, 1 Cranch 137, 178, 5 U.S. 137, 178, 2 L.Ed. 60, that if the judiciary stayed its hand in deference to the legislature, it would give the legislature 'a practical and real omnipotence.' My Brother HARLAN'S view would do just that, for unless Congress created a procedure through which its legislative creation could be challenged quickly and with ease, the momentum of what it had done would grind the dissenter under.
We have a Constitution designed to keep government out of private domains. But the fences have often been broken down; and Frothingham denied effective machinery to restore them. The Constitution even with the judicial gloss it has acquired plainly is not adequate to protect the individual against the growing bureaucracy in the Legislative and Executive Branches. He faces a formidable opponent in government, even when he is endowed with funds and with courage. The individual is almost certain to be plowed under, unless he has a well-organized active political group to speak for him. The church is one. The press is another. The union is a third. But if a powerful sponsor is lacking, individual liberty withers-in spite of glowing opinions and resounding constitutional phrases.
I would not be niggardly therefore in giving private attorneys general standing to sue. I would certainly not wait for Congress to give its blessing to our deciding cases clearly within our Article III jurisdiction. To wait for a sign from Congress is to allow important constitutional questions to go undecided and personal liberty unprotected.
There need be no inundation of the federal courts if taxpayers' suits are allowed. There is a wise judicial discretion that usually can distinguish between the frivolous question and the substantial question, between cases ripe for decision and cases that need prior administrative processing, and the like. When the judiciary is no longer 'a great rock' in the storm, as Lord Sankey once put it, when the courts are niggardly in the use of their power and reach great issues only timidly and reluctantly, the force of the Constitution in the life of the Nation is greatly weakened.
Gideon Hausner, after reviewing the severe security measures sometimes needed for Israel's survival and the vigilance of her courts in maintaining the rights of individuals, recently stated, 'When all is said and done, one is inclined to think that a rigid constitutional frame is on the whole preferable even if it serves no better purpose than obstructing and embarrassing an over-active Executive.' Individuals' Rights in the Courts of Israel, International Lawyers Convention In Israel, 1958, pp. 201, 228 (1959).
That observation is apt here, whatever the transgression and whatever branch of government may be implicated. We have recently reviewed the host of devices used by the States to avoid opening to Negroes public facilities enjoyed by whites. Green v. County School Board of New Kent County, Va., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727; Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733. There is a like process at work at the federal level in respect to aid to religion. The efforts made to insert in the law an express provision which would allow federal aid to sectarian schools to be reviewable in the courts was defeated. The mounting federal aid to sectarian schools is notorious and the subterfuges numerous.
I would be as liberal in allowing taxpayers standing to object to these violations of the First Amendment as I would in granting standing to people to complain of any invasion of their rights under the Fourth Amendment or the Fourteenth or under any other guarantee in the Constitution itself or in the Bill of Rights.

## Notes

* ↑ Memorial and Remonstrance against Religious Assessments, 2 Writings of James Madison 186 (Hunt ed. 1901).
* ↑ The two clear exceptions are municipal taxpayers' suits in Kansas (see Asendorf v. Common School Dist. No. 102, 175 Kan. 601, 266 P.2d 309 (1954)) and state taxpayers' suits in New York (see Schieffelin v. Komfort, 212 N.Y. 520, 106 N.E. 675, L.R.A.1915D, 485 (1914); St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15 (1963); but see Kuhn v. Curran, 294 N.Y. 207, 61 N.E.2d 513 (1945).
* ↑ See, e.g., Clapp v. Town of Jaffrey, 97 N.H. 456, 91 A.2d 464 (1952); Vibberts v. Hart, 85 R.I. 35, 125 A.2d 193 (1956); Lien v. Northwestern Engineering Co., 74 S.D. 476, 54 N.W.2d 472 (1952). ('It is now the settled law of this state that a taxpayer or elector having no special interest may institute an action to protect a public right.' 74 S.D., at 479, 54 N.W.2d, at 474.)
* ↑ See, e.g., Crews v. Beattie, 197 S.C. 32, 14 S.E.2d 351 (1941); Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943) (taxpayer may not enjoin state expenditure of $1.49); contra, Richardson v. Blackburn, 41 Del.Ch. 54, 187 A.2d 823 (1963); Woodard v. Reily, 244 La. 337, 152 So.2d 41 (1963).
* ↑ See, e.g., NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. As the Court said in Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586, apart from Article III jurisdictional questions, standing involves a 'rule of self-restraint for its own governance' which 'this Court has developed' itself. And attempts by Congress to confer standing when it is constitutionally lacking are unavailing. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246.
* ↑ 'The general indifference of private individuals to public omissions and encroachments, the fear of expense in unsuccessful and even in successful litigation, and the discretion of the court, have been, and doubtless will continue to be, a sufficient guard to these public officials against too numerous and unreasonable attacks.' State ex rel. Ferry v. Williams, 41 N.J.L. 332, 339 (Sup.Ct.1879).
* ↑ Quoted in the Law Times, March 17, 1928, at 242.
* ↑ These efforts, commencing in 1961, are discussed in S.Rep. No. 85, 90th Cong., 1st Sess., 2-3 (1967), and S.Rep. No. 473, 90th Cong., 1st Sess., 10-15 (1967). The Senate added such a provision to the Higher Education Facilities Act of 1963, but it did not survive conference. S.Rep. No. 85, at 2. A bill, S. 3, to make certain 'establishment' questions reviewable has been reported by the Senate in the Ninetieth Congress.
* ↑ 'Tuition grants to parents of students in church schools is considered by the clerics and their helpers to have possibilities. The idea here is that the parent receives the money, carries it down to the school, and gives it to the priest. Since the money pauses a moment with the parent before going to the priest, it is argued that this evades the constitutional prohibition against government money for religion! This is a diaphanous trick which seeks to do indirectly what may not be done directly.
'Another one is the 'authority.' The state may not grant aid directly to church schools. But how about setting up an authority like the Turnpike Authority? The state could give the money to the authority which, under one pretext or another, could channel it into the church schools.
'Yet another favorite of those who covet sectarian subsidies is 'child benefit.' Government may not aid church schools, but it may aid the children in the schools. The trouble with this argument is that it proves too much. Anything that is done for a school would presumably be of some benefit to the children in it. Government could even build church school classrooms under this theory because it would benefit the children to have nice rooms to study in.' 21 Church & State (June 1968), p. 5 (editorial).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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