Say a law is passed that no citizen can marry an illegal alien in your state. Would you need to locate such a couple to be the claimants, or could you just challenge it on principle as opposed to some section of the state constitution, federal laws, etc.
Would they actually have to do it and then be arrested before they had enough stake in the question?
I don’t know what the laws are like elsewhere, but here in Kanada it’s possible to file for a judicial review, which is a request for the court to examine a particular piece of legislation and render an official statement as to its application. To challenge the constitutionality of a law, however, yes, it’s necessary to have a test case. Furthermore, in Kanada, one must ask the State’s permission by filing a Charter application, and in theory the State can simply refuse you (though it’s not often done in practice).
My Grandmother was approached as a potential “victim” when the bass-ackwards county* she lives in decided to put the 10 commandments in their courthouse. I’m not sure if they found anyone, she declined, but yes, it does seem they have to find some injured party to proceed.
My first question to her was how the heck did they know to call her? Oh wait, I know. We are all a bunch of opinionated loud mouths. Interestingly, she was also called for jury duty for Elaine Wournos, didn’t get that gig either.
*You live in a county named Dixie, that sort of stuff happens routinely.
You need to have what’s called “standing” in order to sue in court. In a federal court, standing means a lot of things. Essentially, the answer to your question is yes, there needs to be a victim, more or less.
That is to say that the person suing has to have been personally injured by some conduct of the person/entity being sued, there has to be some direct causal connection between the conduct and the injury (the injury must be traceable to that conduct), and it has to be likely that a court can provide some remedy that will redress the harm being caused.
As for the second part of the question, the rules regarding standing do allow for a lawsuit where the injury is imminent, but hasn’t actually happened yet, so it isn’t always the case that you have to go ahead and get arrested before you can challenge a law.
Finally, regarding the question about suing on general principle – this is frowned upon in US law. Part of the standing requirement is a general rule that generalized grievances don’t belong in the courts, so if you just object to a law as a taxpayer or as a citizen of the US, but aren’t directly affected by the law any more than any other taxpayer or citizen, you’re supposed to go through the representative/legislative process, not the judicial one, to get your needs addressed.
Here is what Wiki has to say about legal standing.
It results in some interesting legal legerdemain.
Canada is spelled with a “C.” I hear you guys have an excellent literacy rate, so you should know that.
Signing off now to retreat to my crypto-fascist kleptocratic obesocracy down here in Amerikkka.
Although the states vary in their standing requirements, Federal jurisdiction is limited by Article III of the Constitution to “cases” and “controversies.”
It seems stupid that you would have to get arrested first, so Congress passed the Uniform Declaratory Judgement Act which skirts this problem. You can say “I really want to marry this illegal alien, but I can’t due to this pesky law. Please declare this law unconstitutional so we can get married and not break the law.” This confers jurisdiction on the courts.
In Bowers v. Hardwick, Mr. Hardwick was arrested for sodomy, but had the charges dismissed. Then, Mr. Hardwick declared that he would engage in sodomy if not for the law against it and asked the court to strike it down even though he was no longer being charged with the crime. The Supreme Court decline to do so, but overruled the decision later in Lawrence v. Texas.
One recent example is Maloney v. Rice, where someone was arrested in New York for having nunchaku, but the charges were dismissed. So, he stated that he would own nunchaku if not for the law and asked the court to declare it unconstitutional even though he was no longer being charged with the crime.
But you can’t just say, “Hey, I think that law’s unconstitutional, please agree with me.” You have to go that step further and say, “That law’s unconstitutional and because it exists, I am harmed, please help me make it go away”
Oh, and … I am not a lawyer. I am not your lawyer. I disclaim all responsibility and liability if you do anything in response to the above, which is not legal advice. Etc.
Right idea, but let’s see if we can refine it a bit.
In Canada, it is possible to ask for the opinion of a court as to a law’s constitutionality without a party on the other side, but it’s generally (a) started only by a provincial or federal Attorney General, and (b) done at the Court of Appeal/Supreme Court level. These are what are known as “reference cases,” and examples would include the Reference re Secession of Quebec, [1998] 2 S.C.R. 217. Note that a private individual can get involved by urging the provincial/federal Attorney General to launch a reference case, but the private individual generally cannot instigate the process him- or herself.
An individual doesn’t seek the government’s permission to launch a Charter challenge, although generally the individual launching the challenge will “file a Charter application” to give the government notice of his or her intention to launch such a challenge before actually doing so. But it’s not an application that can be denied; it is more like giving notice that something will happen. To the best of my knowledge, such challenges either arise out of an existing case with a party on the other side (for example, as part of a lawsuit resulting from a car accident, the victim challenges Alberta’s soft tissue injury cap, saying it violates a Charter right); or the individual simply puts the necessary government body on the other side: [Blencoe v. British Columbia (Human Rights Commission)](Blencoe v British Columbia (Human Rights Commission) - Wikipedia, [2000] 2 S.C.R. 307 is an example.
Jimmy and Billy have it right in the U.S., at least with regard to cases filed in federal court. State courts don’t need to have the same standing rules. In New Hampshire, for instance, the state supreme court can hear cases about the constitutionality of state law that wouldn’t meet the standing tests in federal courts. (I don’t know the exact contours of this, I just came across these cases while doing some research about Justice Souter in law school.) However, AFAIK, most state courts so have standing jurisprudence that’s mostly similar to the federal rule.
FYI, the basis for the standing requirement is in Article II, Sec. 2 of the U.S. Constitution. It is perhaps worth noting that modern standing jurisprudence is rather new – 20 years or so. Standing was a requirement before that, but it’s a much, much higher bar now than it was throughout most of the history of the Republic, largely through the efforts of Justice Scalia. It’s not just liberals who can be activists.
The court system doesn’t issue advisary opionions in the USA. Other countries they do. In practice this would save a bunch of time, but it would also make it plain the court, not the Congress or State Legislatures are, in reality, making the law (or breaking it).
Not only is Canada spelled with a C, we talk about the Crown, not the State when discussing legal issues.
I would like some elaboration on this, please.
While I understand and approve of the need for a plaintiff to have standing, sometimes the requirement seems prohibitive. I seem to recall a case challenging a domestic surveillance program which was dismissed due to lack of standing on the part of the plaintiffs because they couldn’t show that they themselves had been surveilled, but there was no way they could show this without discovery, which they couldn’t do if their case was dismissed for lack of standing, a classic Catch-22. But I may have dreamed that.
You guys have a crown? Is it big and fancy and shiny like the Stanley Cup, or small and kinda dull looking like a real crown (viz Pratchett’s The Wyrd Sisters)?
Can I wear it?
It’s largely beyond both the scope of this thread and my knowledge. But important standing cases include Los Angeles v. Lyons, 461 U.S. 95 (1983), where the Court held that a guy who had been choked by police – following L.A.P.D. policy – couldn’t sue to enjoin the policy because he couldn’t show that he would be choked again in the future. As the dissent points out, this means that if the policy is unconstitutional, the Court can nonetheless never stop its enforcement, only possibly address injuries post-hoc. Also Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) – the group claimed that the U.S. government was illegally underenforcing the Endangered Species Act, but the Court said they couldn’t have standing to sue because, uh, I don’t know. They weren’t snail darters themselves, I guess. Basically, the Court says that even though Congress legislated that endangered species be protected, because the extinction of species doesn’t directly harm any humans in a way the Court finds serious enough, that the Congressional action is essentially empty.
–Cliffy
It’s a very spiffy crown. And no.
You can, but you may need to beat down an 83 year old woman to do it.
I just assumed “Kanada” was the new spelling of “Canuckistan”
Hmm, interesting. I wonder if things would be different if the ESA were more harshly worded… that is, if Congress had been more specific about imposing mandates on the Executive. If legislation were passed and signed which said something like, “The Environmental Protection Agency shall take any and all necessary and legal steps to protect the snail darter”, would ordinary citizens have enhanced standing to sue if the EPA failed to comply? Does Congress itself have standing to sue the Executive to compel enforcements of legislative mandates? I know the federal courts are reluctant to intervene in what they see as political questions, but that’s what checks and balances are all about, isn’t it? Has this even happened? How about at the state level? Somehow I can see it as much more plausible that a state legislature would sue a governor than Congress would sue the President.
I remember a lawsuit about 30 years ago in which several taxpayers sued to force the CIA to disclose its budget, arguing (correctly, IMHO) that the Constitution required that all Federal expenditures be a matter of public record. The Supreme Court said no, being a taxpayer whose funds supported the agency did not confer standing. But then they went further, IIRC, holding that no one would have standing to force compliance with that particular portion of the Constitution.
No, it wouldn’t make a difference. The issue wasn’t anything to do with the merits. It was that the Court felt that, while the Act may have conferred a duty, it wasn’t one that sounded to the particular benefit of any individual, but rather to the animals, or maybe the ecosystem or the population as a whole. None of those things can have standing. And so the Court essentially forecloses a whole realm of legislation that the Constitution says that Congress has the power to enact by making it unenforceable in the face of Executive intransigence.
Which is why I want to hit anyone who says (in any given year) there’s no difference between presidential candidates with a mallet. There are cavernous differences in levels of imperfection, and literally millions of people are negatively affected when you pick the wrong one.
–Cliffy