This past week, a sharply divided Supreme Court in Hein v. Freedom From Religion Foundation held that President Bush’s faith-based initiatives could not be challenged in federal court as a prohibited state establishment of religion. Hein said nothing about the merits of the underlying challenge, but relied instead on the constitutional rule that denies taxpayers standing to sue.”. . .
Any defender of limited government who believes in an originalist interpretation of the Constitution should reject, root-and-branch, the court’s hostility to taxpayer standing. . . .
The proper rule should allow all taxpayers free rein to challenge either Congress or the executive branch for overstepping their constitutional authority. At stake is whether judicial review itself remains as a check on the political branches. Blocking taxpayer standing often leaves no one to challenge congressional or presidential actions as inconsistent with our basic constitutional design–allowing both branches to act in areas where they have no constitutional authority. . . .
Hein does not involve a question, as [Scalia] says, of “mental displeasure” on the part of members of the Freedom From Religion Foundation. The question is about the structural integrity of our government under the Constitution. It is not Flast that needs to be overturned, but Frothingham v. Mellon.
Law Prof. Richard A. Epstein
University of Chicago
“Scalia’s Judicial Activism”<</strong>br> Wall Street Journal, June 28, 2007
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