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the no endorsement test is largely subjective; and unwarranted, since there
THE TRUTH OF THE HUMAN PERSON 143
is understandable hesitation to expunge the significance of religious refer-
ence in light of the corporate presupposition of a Creator. Few principled
lines could be drawn. As Justice Thomas remarked in his concurrence in
the judgment in Newdow, this Court s jurisprudence leaves courts, govern-
ments, and believers and nonbelievers alike confused. 37 The confusion
need not be perpetuated.
To the secularist, however, doctrinal confusion is preferable to the
restoration of religious reference. Such reference is antithetical to what may
really be behind the modern exclusionary impulse: namely, the refounding
of America upon a conception of human nature that emphasizes desire and
emotion and, of course, personal gratification more than the self-evident
truth of created equality. But if reason is made subordinate to desire, the
prospects for religious freedom indeed, any freedom are dim. As Profes-
sor Robert George has asked, what ultimately is the source of human rights
if it is neither God nor reason?38 There may be none, other than an auton-
omy principle that nominally honors consent, but is then in tension with a
secularist conception of man as the sum of desires prompted largely by
external stimuli beyond his conscious freedom. This, of course, contrasts
sharply with the corporate presupposition of the divine origin of man in the
Declaration, with its affirmation of man s intrinsic value (as the possessor of
inalienable right) and his reasoned pursuit of happiness.
Far more than Christmas displays are thus in play when religious free-
dom mutates into a secularist orthodoxy. After all, the more perfect union
of the Constitution is fashioned to implement ( fulfill the promise as one
Chief Justice remarked39) the Declaration. It is intended to facilitate man s
flourishing in a community of other men. Human flourishing in the natu-
ral law tradition of the Declaration is necessarily bound up with the basic
human goods of life, knowledge, family, friendship, and religion.40 Augus-
tine opined that one can always tell the nature of a people by the objects of
their love.41 Insofar as these basic human goods can be said to be the prod-
uct of reasoned deduction from the incorporating presupposition in the
Declaration, what would be objects of our love if we were to aggressively
separate from them? If the fulfillment of material and bodily desire is the
essence of the American philosophy in the twenty-first century, have we
substituted the shopping mall for the historically significant premise of the
Independence Mall? An originalist course correction can avert this, but how
144 RELIGION AND THE AMERICAN FUTURE
do we get there? The journey back may depend as much on a historically
faithful account of religious freedom as on observance of the structural lim-
itations on judicial power.
Taxpayer Standing
Returning to original understanding should reduce the number of claims
artificially and unnecessarily blocking reference to religion in the public
square. Oftentimes these claims are presented to federal courts by taxpayers
without specific factual injury, except that of difference of opinion, which
does not usually justify treating something as a federal case. As a general
matter, taxpayers lack standing to litigate because their grievances are too
diffuse. In law review commentary before his appointment to the high
court, John Roberts wrote of the importance of standing to the maintenance
of a restrained judicial role and the separation of powers:
One way federal courts ensure that they have a real, earnest,
and vital controversy before them is by testing the plaintiff s
standing to bring suit. The plaintiff must allege at the pleading
stage, and later prove, an injury that is fairly traceable to the
defendant s challenged conduct and that is likely to be redressed
by the relief sought. If the plaintiff cannot do so, the court must
dismiss the case as beyond its power to decide no matter when
in the litigation the flaw is discovered or arises. A dismissal on
the basis of standing prevents the court from reaching and
deciding the merits of the case, whether for the plaintiff or the
defendant. Standing is thus properly regarded as a doctrine of
judicial self-restraint.42
Chief Justice Roberts reaffirmed this thinking in DaimlerChrysler Corp.
v. Cuno43 for a virtually unanimous Court. Referencing the Court s decision
finding no standing in an atheist father who lacked educational custody of
his daughter to object to the words under God in the pledge of allegiance,44
Roberts observed that standing is the core component of a bona fide case-
or-controversy.
THE TRUTH OF THE HUMAN PERSON 145
DaimlerChysler presented a challenge to certain Ohio tax credits by state
taxpayers who speculated that their tax burden might be greater because of
those credits. The challenge was rebuffed, with the Court noting that this
Court has denied federal taxpayers standing under Article III to object to a
particular expenditure of federal funds simply because they are taxpay-
ers. 45 The interest of a taxpayer is simply too minute and indeterminable,
and there is no assurance that invalidating a tax will affect the tax bill of any
given taxpayer.
Coterminous with the advent of the exclusionary misinterpretation of
the establishment clause, however, the Court fabricated in Flast v. Cohen46
an exception allowing taxpayer standing to raise such objection in that dis-
crete context. Flast held that because the Establishment Clause . . . specif-
ically limit[s] the taxing and spending power conferred by Art. I, § 8, a
taxpayer therefore has standing consistent with Article III to invoke federal
judicial power when he alleges that congressional action under the taxing
and spending clause is in derogation of the establishment clause.47 The
thinking behind Flast was overbroad since, as discussed below, Congress
may not use its spending power in a manner that finances a violation of
individual rights generally, not merely of the establishment clause.
Sensing the absence of a principled line of distinction among rights, the
claimants in DaimlerChrysler sought to expand the exception to include
dormant commerce clause limitations on congressional power, but the chief
justice persuaded the entire Court to resist. Were it otherwise, there would
be no precedential way of distinguishing other constitutional provisions.
Such a broad application of Flast s exception would be contrary to Flast s
own promise that it would not transform federal courts into forums for tax-
payers generalized grievances.
The Roberts Court s decision in DaimlerChrysler to refuse to expand tax-
payer standing is significant, and again, potentially favorable for a fuller pub-
lic acknowledgment of religion. Moreover, the Chief Justice s discussion of
the Flast exception in DaimlerChrysler points back to original understanding.
The Flast Court, wrote Roberts, discerned in the history of the Establish-
ment Clause the specific evils feared by its drafters.48 The main thrust of the
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