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Abstract

Forty years ago in Flast v. Cohen, the Supreme Court created, for the Establishment Clause only, a dramatic exception to the bedrock principle barring general taxpayer standing. The Court’s new exception was based on one catchy phrase from a famous historical document—James Madison’s 1785 Memorial and Remonstrance Against Religious Assessments. The Court has been notoriously bad at Establishment Clause history, but Flast seemed to push the envelope. Yet neither the Court nor commentators have questioned Flast’s historical credentials over the last four decades. Recently, the Supreme Court took up the taxpayer standing question again in Hein v. Freedom From Religion Foundation, Inc. Unhappily, the Justices’ various opinions did not clarify the matter, and only obliquely addressed the credibility of Flast’s use of history. This Article goes where the Court should have gone, and scrutinizes the historical underpinnings of the Flast exception to generalized taxpayer standing in Establishment Clause cases. The Article concludes that Madison’s Memorial offers little support for that doctrine. Flast lifted a political argument from one context and applied it uncritically in a different context and to a different issue. It confused what Madison thought about the substance of religious liberty in general, with what he thought about how religious liberty should be posited and enforced in particular legal provisions. Most fundamentally, it failed to consider Madison’s larger argument and objectives in the Memorial. The Article concludes by placing this failure of analysis in the broader context of Establishment Clause jurisprudence. Hein may well presage the Court’s reconsideration of Flast’s taxpayer standing exception. That reconsideration would itself be part of a much needed refinement of the Court’s treatment of historical materials in Establishment Clause jurisprudence.

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