Glenn:

"I think the Founders were wise to impose that requirement as a way of limiting judicial power. The fact that they don't have it in Europe is not, by itself, a particularly persuasive argument against it. If it were, it would mean we should repeal our First Amendment so that we can have all of those nice speech-limiting laws that Europe has (ones which -- as such laws tend to do -- are increasing in scope and number)."

I was indisposed at the time, but I'm glad someone (Mr. Greenwald, no less) mentioned this. It's certainly valid to separate normative from descriptive assessments of a given policy, etc., but if we're going to evaluate the merits of standing as compared to other countries, we can't leave out all the other relevant features of those countries in the process.

The United States is unique in many respects, not the least of which is its formal Constitution, and the sacrosanct Separation of Powers imposed by that Constitution. The "cases or controversies" clause of Article III is, like many of the other features of that article, vital to keeping the judicial branch from subsuming the others (as the various provisions of the other articles limit the powers of the executive and legislative branches). It is only against that backdrop, essential to our identity and character as a country, that one can completely answer whether standing requirements - or any other limitation on government power - have normative merit.

So I would concur with Glenn's example of the UK's lack of something like the First Amendment of the US Constitution, but also note that, specifically with regard to how well other countries appear to be doing without the judicial requirement of standing, we would have to ask what other features of their governmental structure might make the lack of such a limitation a good thing (or at least not a terrible thing).

I can say with very little doubt that if we were to abandon the requirement of standing in this country, the balance of power among the three branches of our government would tilt significantly toward the judicial, because literally any person could invoke the power of the courts to stop the efforts and activities of the other branches. This is to say nothing of the overwhelming effect removing the standing requirement would have on the sheer number of cases the courts would have to hear.

It is against that broader context that we must evaluate the normative merits of the Founders very intentionally limiting the power of the federal courts to cases or controversies between specific parties with concrete claims and defenses against one another.

Furthermore, the constitutional courts are more directly overseen by the parliaments in most systems, making them less, not more, like Supreme Rulers than here.

This is precisely the type of thing I was referring to when I said that we would have to include the other features of these European systems in any analysis of the normative value of our standing requirement vs. their lack of one.

Incidentally, I think standing is an old aspect of English common law, not a creation of the Founders.

Standing is derived from the doctrine of separation of powers, and "case or controversy" clause of Article III of the Constitution, which were indeed creations of the Founders. There are many constitutional features that were not specifically and expressly mentioned by the Founders, which nevertheless arise from the bolder outlines of the doctrines of limited government, separation of powers, and so on.

- Gotta go.

As the GOPers liked to claim (and threatened to do) then the Congress certainly has the power to rule that all American citizens have standing in any case in which the US government violates the Constitution.

That is what I would like to see. Congress simply declare (via law) that American citizens in general have a direct stake, direct interest, and 'standing' in ANY case wherein the government is violating the Constitution.

The case law can be contradictory and confusing, but in general the courts still require some degree of injury-in-fact. That is, it's not enough for Congress to merely pass a law declaring that any citizen may sue for violations of the Constitution against unknown other parties. Courts will still need to see that the plaintiff's own rights under the Constitution or statute had been violated, thus constituting a concrete, redressable injury.

While Congress can create new rights to sue by statute, the ability to sue must come in the form of a particular person or group of persons claiming that their specific rights under the statute had been violated. This was the case in Havens Realty Corp. v. Coleman, where the organization Housing Opportunities Made Equal (HOME) sued Havens Realty Corp. for housing discrimination under the Fair Housing Act. HOME had sent a white applicant and a black applicant to test whether both could receive truthful information about housing availability. Only the white applicant was told the truth that housing was available. Even though neither applicant actually wanted the housing (they just wanted to test the realty company), the Supreme Court held that HOME had standing to sue because its right under the Fair Housing Act to receive truthful housing information had been violated.

HOME would not have had standing, however, had it not been able to show that it specifically had been deprived of the right conferred by the statute. In other words, my understanding of the modern cases (anyone correct me if I'm wrong) is that a statute cannot make an end-run around the injury-in-fact requirement by simply declaring that any person has the right to sue for the abrogation of some other person's rights (or for an unspecified, abstract violation of some right).

It's been a while since I've had to tangle with the intersection of standing and statutory rights, so again, anyone please correct me if my understanding is flawed.