Is Democracy a Procedural Right in Vacuo? A Democratic Perspective on Procedural Violations as a Basis for Standing

Abstract

Many commentators express concern that democracy in the United States is under threat, whether from the pressure of concentrated wealth and structural racism, government secrecy and authoritarian tendencies, an outdated constitutional structure and old-fashioned corruption, or perhaps a combination of them all. Against this background, this Article argues that the Supreme Court’s treatment of procedural rights for determining standing—the key that opens the door to federal court—is an overlooked factor in contributing to democratic erosion. According to these cases, the alleged violation of a congressionally conferred procedural right that does not safeguard some separate, non-procedural, concrete interest of the plaintiff—a procedural right “in vacuo” as dubbed by the Court—does not constitute Article III injury so the right holder is barred from federal court. Conceding that standing requires a showing of a concrete injury, the Article argues that a congressionally conferred right to participate in the processes of self-governance is valuable in and of itself, and its infringement should be treated as Article III injury even if it does not cause immediate financial loss or injury to some other non-procedural interest. The Court’s devaluation of these procedural rights in its standing doctrine not only has diminished opportunities for democratic practice, but also has destabilized political institutions that support democratic values. Part I sets out the background assumptions about democracy, procedure, and democratic procedure. Part II provides the doctrinal basis for the claim that the Court’s approach to procedural standing gives insufficient constitutional weight—indeed, gives no weight—to intrinsic process values such as equality, dignity, and participation. Part III discusses how the Court’s procedural standing decisions line up against some of the key indicators of democratic erosion. This Part further shows that the Court’s devaluation of process values in its standing doctrine is not unique to its Article III decision making, but rather marks a general tendency in its constitutional analysis—a trend that has worked to reduce the public sphere, entrench power by race and class, and shrink public participation of certain groups such as workers and consumers. Overall, the Article seeks to reorient standing doctrine in ways that support participatory norms and intrinsic process values that serve as guardrails of democracy.