Donald L. Doernberg

'We the People': John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action

As the Constitutions Preamble demonstrates, sovereignty in the United States actually resides in the people, not in government. John Locke, perhaps the most influential political philosopher for the Framers, made clear that properly constituted government was a trustee for the people, and James Madison echoed that sentiment. The Supreme Courts standing doctrine, however, often makes it impossible for the people to call the government-as-trustee to account. This article suggests that constitutional rights are held individually, to be sure, but also collectively by the body politic. Scholars and courts have repeatedly recognized collective interests, but most often evaluate them when they appear to conflict with individual rights. The article suggests that in cases where the issue is whether government violated the Constitution, individual and collective interests, far from being opposed, actually coincide. In a significant subclass of those cases, standing doctrine makes impossible judicial protection of collective interests and judicial insistence that government operate within proper bounds. The effect is that certain constitutional provisions effectively exist only at the whim and during the good will of the government. The existence and recognition of collective rights require a modification of standing doctrine to allow the courts to protect such rights, but without creating universal standing, which would threaten the courts with a tidal wave of litigation from officious intermeddlers.