Who Stands for the Common Citizen?

The doctrine of Judicial Review has been a reality in America for over 200 years. It is the idea that the Supreme Court of the United States (SCOTUS) has the authority to judge whether laws and policies from congress and the president pass constitutional muster.

It all began with Marbury v. Madison (1803). Marbury thought that he had been personally deprived of his rights by then-president Thomas Jefferson and his Secretary of State, James Madison. The Supreme Court heard the case and ruled against him.

Nevertheless, they established a precedent which remains in effect today: if any person believes that an act of congress, or an act of the president, is personally injurious to him, he has standing before the court to sue the government and review the constitutionality of the action.

That’s Judicial Review, and state courts, too, have claimed this power.

Increasingly, Judicial Review has been used to strike down all kinds of long-standing laws, as well as new laws. Even portions of validly adopted constitutions have been declared unconstitutional.

In 2008, California citizens overwhelmingly adopted an amendment to the state constitution to recognize, as valid, only marriage between a man and a woman. This was struck down by a state judge, and sustained at the California Supreme Court.

In 1996 Congress passed the Defense of Marriage Act by about 80-to-20 percent, and President Clinton signed it into law. But in June 2013 SCOTUS struck it down by Judicial Review. More recently, SCOTUS struck down marriage laws in all 50 states when James Obergefell claimed a constitutional right to obtain a marriage license.

Note the pattern here. If a solitary citizen sues the government, he has standing before the court to represent for an entire subset of American citizens.

Perhaps the most notorious of these cases is Doe v. Bolton (1973). This opinion was handed down on the same day as the more famous Roe v. Wade, which struck down first-term abortion bans in all 50 states. But Doe v. Bolton was another matter. Mary Doe was the pseudonym for a woman who supposedly wanted a late term abortion. Doe v. Bolton used Judicial Review to overturn every state law which limited abortions all the way up to the moment of birth.

Sandra Cano testifying before the Senate

However, here’s the twist. Sandra Cano, the woman listed as Mary Doe, never wanted an abortion. Sandra did not even know that an unscrupulous lawyer, Margie Pitts Hames, was using her name before the SCOTUS to argue against her own desires. It took nearly a decade for her to get the records unsealed and expose the fraud.

From that time until she died in 2014, Cano testified that Doe v. Bolton should be vacated because her standing before the court was never verified, and was in fact fraudulent. Sadly, she was told that the statute of limitations ran out before she even found out that her name was on the case, and the fraud of Doe v. Bolton still stands.

Karl Allred

I have outlined a few famous cases of Judicial Review to set some background for a case which is currently before the Wyoming Supreme Court. Last Wednesday, September 20, the Wyoming Supreme Court heard arguments in a case brought by Evanston resident, Karl Allred.

The case was originally filed by Allred, and State Representative Gerald Gay almost a year and a half ago. It questions the constitutionality of Wyoming Statute 9-5-111-113 which was passed and signed in the 2016 legislative session. The suit alleges that the law violates several provisions of the Wyoming Constitution, as well as Wyoming state law.

Gerald Gay

But here we are, almost 18 months later, and court has not even agreed to hear the case. The question has gotten bogged down in the matter of “standing.”

Marbury had standing before the court because he was personally affected by Madison’s actions. Obergefell had standing before the court because he personally could not get a marriage license. Sandra Cano had standing before the court because her lawyer fraudulently claimed that she wanted an abortion. In all these cases, not only did the plaintiffs have standing, but each stood for an entire subset of Americans.

But what happens when you are standing not for a subset, but for everyone? Do you still have standing to sue? That’s the question before the Wyoming Supreme Court.

So far, the courts have denied either Allred or Gay standing to sue. Relying on the so-called “Brimmer Test” adopted by the Washington State Supreme Court, the State of Wyoming has been working to keep the courts from even considering the merits of the case.

Among other things, the Brimmer Test requires parties to have “existing and genuine, as distinguished from theoretical, rights or interests,” in order to have standing to sue the government. The lower courts have deemed that the right of a citizen to have his government follow the Constitution and statutes is only “theoretical” and not “genuine.” That’s a curious position for the state to adopt.

Do you, as a citizen, have only a theoretical right to expect your government to follow the constitution? Or, since your rights are shared with a half-million other Wyoming citizens, do you have no rights to assert when elected officials violate the Constitution? Justice Kate Fox asked Special Assistant Attorney General, Jay Jerde, “If these plaintiffs don’t have standing, then who does?”

That’s a good question. Jerde had no answer. He could only say that if a citizen thinks any government action to be unconstitutional, he has the right to change it through the political process.

This answer troubles me greatly. It forgets the most fundamental reason for having a Constitution in the first place. A Constitution is a document that places limits on popular sentiments. It sets down in law that there are certain rights that citizens, have no matter how many people vote against them.

Even if 99% of the people want to do something unconstitutional, the 1% have the right to be protected from that action. Even if the Executive and Legislative branches together agree to an unconstitutional course of action, our common Constitution makes their action illegal and, therefore, null and void.

I am not here asserting anything about the merits of the case. I am merely pointing out that Constitutional questions are not subject to the political process, but limit what can be done by the political process. To be a constitutional republic means that we reject mob rule and place limits on the power of the popular vote.

For over 200 years, Judicial Review has recognized this reality and placed the responsibility to enforce the Constitution within the power of the courts. Sometimes the courts have served us well in upholding the Constitution. Other times they themselves have become politicized and have created laws and precedents contrary to the Constitution.

However, to throw out the idea of Judicial Review and subject everything to politics would be a gargantuan mistake. All of us have a genuine right and interest in making sure that this doesn’t happen. To deny any one of us common citizens the standing to assert this right in a court of law is to strip every citizen of the real and abiding protections written into our common Constitution.

No matter what you think about the merits of the case, we should all want Mr. Allred to have his day in court. His right to be heard is also your own.

Further Reading:
Casper Star Tribune: Who Stands for the Common Citizen?