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17 Suffolk U. L. Rev. 881 (1983)
The Doctrine of Standing as an Essential Element of the Separation of Powers

handle is hein.journals/sufflr17 and id is 901 raw text is: THE DOCTRINE OF STANDING AS AN ESSENTIAL ELEMENT OF THE SEPARATION OF POWERS. by Antonin Scalia* The principle of separation of powers was set forth in the Con- stitution of the Commonwealth of Massachusetts well before it found its way into the federal document. The Massachusetts Constitution reads, with lawyerlike (if somewhat tedious) clarity: the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.' It goes on to emphasize the importance attached to this provision by adding: to the end it may be a government of laws and not of men'-as though that feature, above all others, was to assure the absence of despotism. The federal prescription on the subject is not as wordy. Indeed, with an economy of expression that many would urge as a model for modem judicial opinions, the principle of separation of powers is found only in the structure of the document, which successively describes where the legislative, executive and judicial powers, respec- tively, shall reside.3 One should not think, however, that the princi- ple was any less important to the federal framers. Madison said of it, in Federalist No. 47, that no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.4 And no less than five of the Federalist Papers were devoted to the demonstration that the principle was adequately observed in the proposed Constitution.5 My thesis is that the judicial doctrine of standing is a crucial and inseparable element of that principle, whose disregard will inevitably produce-as it has during the past few decades-an overjudicializa- tion of the processes of self-governance.6 More specifically, I suggest that courts need to accord greater weight than they have in recent times to the traditional requirement that the plaintiff's alleged injury * Judge, United States Court of Appeals for the District of Columbia Circuit. This essay is a revised version of the Ninth Donahue Lecture at Suffolk University Law School. MASS. CONST. Pt. 1, art. 30. 2Id. U.S. CONST. art. I, § l, art. Il, § 1, art. Ill, § 1. THE FEDERALIST No. 47 (J. Madison). Id. Nos. 47 (J. Madison), 48 (J. Madison), 49 (J. Madison), 50 (A. Hamilton or J. Madison), 51 (A. Hamilton or J. Madison). 6 See D. HoRowIrz, THE COURTS AND SOCIAL POLICY 4-5 (1977).

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