U.S. Supreme Court Flast v. Cohen, 392 U.S.
83 (1968) Flast v. Cohen No. 416 Argued March 12, 1968 Decided June 10, 1968 392 U.S.
83 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK Syllabus Appellant taxpayers allege that federal funds have been
disbursed by appellee federal officials under the Elementary and
Secondary Education Act of 1965 to finance instruction and the
purchase of educational materials for use in religious and
sectarian schools, in violation of the Establishment and Free
Exercise Clauses of the First Amendment. Appellants sought a
declaration that the expenditures were not authorized by the Act
or, in the alternative, that the Act is to that extent
unconstitutional, and requested the convening of a three-judge
court. A three-judge court ruled, on the authority of Frothingham v. Mellon, 262 U. S. 447 (1923), that appellants lacked standing to maintain the action. Held: 1. The three-judge court was properly convened, as the
constitutional attack, even though focused on the program's
operations in New York City, would, if successful, affect the
entire regulatory scheme of the statute, and the complaint alleged
a constitutional ground for relief, albeit one coupled with an
alternative nonconstitutional ground. Pp. 392 U. S.
88 -91.

															2. There is no absolute bar in Art. III of the Constitution to
suits by federal taxpayers challenging allegedly unconstitutional
federal taxing and spending programs, since the taxpayers may or
may not have the requisite personal stake in the outcome. Pp. 392 U. S.
91 -101.

															3. To maintain an action challenging the constitutionality of a
federal spending program, individuals must demonstrate the
necessary stake as taxpayers in the outcome of the litigation to
satisfy Art. III requirements. Pp. 392 U. S.
102 -103.

															(a) Taxpayers must establish a logical link between that status
and the type of legislative enactment attacked, as it will not be
sufficient to allege an incidental expenditure of tax funds in the
administration of an essentially regulatory statute. P. 392 U. S.
102 .

															(b) Taxpayers must also establish a nexus between that status
and the precise nature of the constitutional infringement alleged.
They must show that the statute exceeds specific constitutional Page 392 U. S. 84 limitations on the exercise of the taxing and spending power,
and not simply that the enactment is generally beyond the powers
delegated to Congress by Art. I, § 8. Pp. 1 392 U. S.
02 -103.

															4. The taxpayer appellants here have standing consistent with
Art. III to invoke federal judicial power, since they have alleged
that tax money is being spent in violation of a specific
constitutional protection against the abuse of legislative power, i.e., the Establishment Clause of the First Amendment. Frothingham v. Mellon, supra, distinguished. Pp. 392 U. S.
103 -106. 271 F. Supp.
1 , reversed. Page 392 U. S. 85 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

															In Frothingham v. Mellon, 262 U.
S. 447 (1923), this Court ruled that a federal taxpayer
is without standing to challenge the constitutionality of a federal
statute. That ruling has stood for 45 years as an impenetrable
barrier to suits against Acts of Congress brought by individuals
who can assert only the interest of federal taxpayers. In this
case, we must decide whether the Frothingham barrier
should be lowered when a taxpayer attacks a federal statute on the
ground that it violates the Establishment and Free Exercise Clauses
of the First Amendment.

															Appellants filed suit in the United States District Court for
the Southern District of New York to enjoin the allegedly
unconstitutional expenditure of federal funds under Titles I and II
of the Elementary and Secondary Education Act of 1965, 79 Stat. 27,
20 U.S.C. §§ 241a et seq., 821 et seq. (1964 ed.,
Supp. II). The complaint alleged that the seven appellants had as a
common attribute that "each pay[s] income taxes of the United
States," and it is clear from the complaint that the appellants
were resting their standing to maintain the action solely on their
status as federal taxpayers. [ Footnote 1 ] The appellees, who are charged by Congress
with administering the Elementary and Secondary Education Act of
1965, were sued in their official capacities.

															The gravamen of the appellants' complaint was that federal funds
appropriated under the Act were being used to finance instruction
in reading, arithmetic, and other subjects in religious schools,
and to purchase textbooks Page 392 U. S. 86 and other instructional materials for use in such schools. Such
expenditures were alleged to be in contravention of the
Establishment and Free Exercise Clauses of the First Amendment.
Appellants' constitutional attack focused on the statutory criteria
which state and local authorities must meet to be eligible for
federal grants under the Act. Title I of the Act establishes a
program for financial assistance to local educational agencies for
the education of low income families. Federal payments are made to
state educational agencies, which pass the payments on in the form
of grants to local educational agencies. Under § 205 of the Act, 20
U.S.C. § 241e, a local educational agency wishing to have a plan or
program funded by a grant must submit the plan or program to the
appropriate state educational agency for approval. The plan or
program must be "consistent with such basic criteria as the
[appellee United States Commissioner of Education] may establish."
The specific criterion of that section attacked by the appellants
is the requirement

															"that, to the extent consistent with the number of educationally
deprived children in the school district of the local educational
agency who are enrolled in private elementary and secondary
schools, such agency has made provision for including special
educational services and arrangements (such as dual enrollment,
educational radio and television, and mobile educational services
and equipment) in which such children can participate. . . ."

															20 U.S.C. § 241e(a)(2). Under § 206 of the Act, 20 U.S.C. §
241f, the Commissioner of Education is given broad powers to
supervise a State's participation in Title I programs and grants.
Title II of the Act establishes a program of federal grants for the
acquisition of school library resources, textbooks, Page 392 U. S. 87 and other printed and published instructional materials "for the
use of children and teachers in public and private elementary and
secondary schools." 20 U.S.C. § 821. A State wishing to participate
in the program must submit a plan to the Commissioner for approval,
and the plan must

															"provide assurance that, to the extent consistent with law, such
library resources, textbooks, and other instructional materials
will be provided on an equitable basis for the use of children and
teachers in private elementary and secondary schools in the State.
. . ."

															20 U.S.C. § 823(a)(3)(b). While disclaiming any intent to
challenge as unconstitutional all programs under Title I of the
Act, the complaint alleges that federal funds have been disbursed
under the Act, "with the consent and approval of the [appellees],"
and that such funds have been used and will continue to be used to
finance "instruction in reading, arithmetic and other subjects and
for guidance in religious and sectarian schools" and "the purchase
of textbooks and instructional and library materials for use in
religious and sectarian schools." Such expenditures of federal tax
funds, appellants alleged, violate the First Amendment because
"they constitute a law respecting an establishment of religion" and
because

															"they prohibit the free exercise of religion on the part of the
[appellants] . . . by reason of the fact that they constitute
compulsory taxation for religious purposes."

															The complaint asked for a declaration that appellees' actions in
approving the expenditure of federal funds for the alleged purposes
were not authorized by the Act or, in the alternative, that, if
appellees' actions are deemed within the authority and intent of
the Act, "the Act is to that extent unconstitutional and void." The
complaint also prayed for an injunction to enjoin appellees Page 392 U. S. 88 from approving any expenditure of federal funds for the
allegedly unconstitutional purposes. The complaint further
requested that a three-judge court be convened as provided in 28
U.S.C. §§ 2282, 2284.

															The Government moved to dismiss the complaint on the ground that
appellants lacked standing to maintain the action. District Judge
Frankel, who considered the motion, recognized that Frothingham
v. Mellon, supra, provided "powerful" support for the
Government's position, but he ruled that the standing question was
of sufficient substance to warrant the convening of a three-judge
court to decide the question. 267 F.
Supp. 351 (1967). The three-judge court received briefs and
heard arguments limited to the standing question, and the court
ruled on the authority of Frothingham that appellants
lacked standing. Judge Frankel dissented. 271 F.
Supp. 1 (1967). From the dismissal of their complaint on that
ground, appellants appealed directly to this Court, 28 U.S.C. §
1253, and we noted probable jurisdiction. 389 U.S. 895 (1967). For
reasons explained at length below, we hold that appellants do have
standing as federal taxpayers to maintain this action, and the
judgment below must be reversed. I We must deal first with the Government's contention that this
Court lacks jurisdiction on direct appeal because a three-judge
court was improperly convened below. [ Footnote 2 ] Under 28 U.S.C. § 1253, direct appeal to
this Page 392 U. S. 89 Court from a district court lies only

															"from an order granting or denying . . . an interlocutory or
permanent injunction in any civil action, suit or proceeding
required by any Act of Congress to be heard and determined by a
district court of three judges."

															Thus, if the Government is correct, we lack jurisdiction over
this direct appeal.

															The Government's argument on this question is two-pronged.
First, noting that appellants have conceded that the case should be
deemed one limited to the practices of the New York City Board of
Education, the Government contends that appellants wish only to
forbid specific local programs which they find objectionable, and
not to enjoin the operation of the broad range of programs under
the statutory scheme. Only if the latter relief is sought, the
Government argues, can a three-judge court properly be convened
under 28 U.S.C. § 2282. We cannot accept the Government's argument
in the context of this case. It is true that the appellants'
complaint makes specific reference to the New York City Board of
Education's programs which are funded under the challenged statute,
and we can assume that appellants' proof at trial would focus on
those New York City programs. However, we view these allegations of
the complaint as imparting specificity and focus to the issues in
the lawsuit, and not as limiting the impact of the constitutional
challenge made in this case. The injunctive relief sought by
appellants is not limited to programs in operation in New York
City, but extends to any program that would have the
unconstitutional features alleged in the complaint. Congress
enacted § 2282

															"to prevent a single federal judge from being able to paralyze
totally the operation of an entire regulatory scheme . . . by
issuance of a broad injunctive order." Kennedy v. Mendoza-Martinez, 372 U.
S. 144 , 372 U. S. 154 (1963). If the District Court in this case were to rule for
appellants on the merits of their constitutional attack on New
York Page 392 U. S. 90 City's federally funded programs, that decision would cast
sufficient doubt on similar programs elsewhere as to cause
confusion approaching paralysis to surround the challenged statute.
Therefore, even if the injunction which might issue in this case
were narrower than that sought by appellants, we are satisfied that
the legislative policy underlying § 2282 was served by the
convening of a three-judge court, despite appellants' focus on New
York City's programs.

															Secondly, the Government argues that a three-judge court should
not have been convened, because appellants question not the
constitutionality of the Elementary and Secondary Education Act of
1965, but its administration. [ Footnote 3 ] The decision in Zemel v. Rusk, 381 U. S. 1 (1965),
is dispositive on this issue. It is true that appellants' complaint
states a nonconstitutional ground for relief, namely, that
appellees' actions in approving the expenditure of federal funds
for allegedly unconstitutional programs are in excess of their
authority under the Act. However, the complaint also requests an
alternative and constitutional ground for relief, namely, a
declaration that, if appellees' actions "are within the authority
and intent of the Act, the Act is, to that extent, unconstitutional
and void." The Court noted in Zemel v. Rusk, supra, "[W]e have often held that a litigant need not abandon his
nonconstitutional arguments in order to obtain Page 392 U. S. 91 a three-judge court."

															381 U.S. at 381 U. S. 6 . See also Florida Lime Growers v. Jacobsen, 362 U. S.
73 (1960); Allen v. Grand Central Aircraft Co., 347 U. S. 535 (1954). The complaint in this case falls within that rule.

															Thus, since the three-judge court was properly convened below,
[ Footnote 4 ] direct appeal to
this Court is proper. We turn now to the standing question
presented by this case. II This Court first faced squarely [ Footnote 5 ] the question whether a litigant asserting only
his status as a taxpayer has standing to maintain a suit in a
federal court in Frothingham v. Mellon, supra, and that
decision must be the starting point for analysis in this case. The
taxpayer in Frothingham attacked as unconstitutional the
Maternity Act of 1921, 42 Stat. 224, which established a federal
program of grants to those States which would undertake programs to
reduce maternal and infant mortality. The taxpayer alleged that
Congress, in enacting the challenged statute, had exceeded the
powers delegated to it under Article I of the Constitution and had
invaded the legislative province reserved to the several States by
the Tenth Amendment. The taxpayer complained that the result of the
allegedly unconstitutional enactment would be to increase her
future federal tax Page 392 U. S. 92 liability, and "thereby take her property without due process of
law." 262 U.S. at 262 U. S. 486 .
The Court noted that a federal taxpayer's "interest in the moneys
of the Treasury . . . is comparatively minute and indeterminable,"
and that "the effect upon future taxation, of any payment out of
the [Treasury's] funds, . . . [is] remote, fluctuating and
uncertain." Id. at 262 U. S. 487 .
As a result, the Court ruled that the taxpayer had failed to allege
the type of "direct injury" necessary to confer standing. Id. at 262 U. S.
488 .

															Although the barrier Frothingham erected against
federal taxpayer suits has never been breached, the decision has
been the source of some confusion, and the object of considerable
criticism. The confusion has developed as commentators have tried
to determine whether Frothingham establishes a
constitutional bar to taxpayer suits or whether the Court was
simply imposing a rule of self-restraint which was not
constitutionally compelled. [ Footnote 6 ] The conflicting viewpoints are reflected in
the arguments made to this Court by the parties in this case. The
Government has pressed upon us the view that Frothingham announced a constitutional rule, compelled by the Article III
limitations on federal court jurisdiction and grounded in
considerations of the doctrine of separation of powers. Appellants,
however, insist that Page 392 U. S. 93 Frothingham expressed no more than a policy of judicial
self-restraint which can be disregarded when compelling reasons for
assuming jurisdiction over a taxpayer's suit exist. The opinion
delivered in Frothingham can be read to support either
position. [ Footnote 7 ] The
concluding sentence of the opinion states that to take jurisdiction
of the taxpayer's suit

															"would be not to decide a judicial controversy, but to assume a
position of authority over the governmental acts of another and
coequal department, an authority which plainly we do not
possess."

															262 U.S. at 262 U. S. 489 . Yet
the concrete reasons given for denying standing to a federal
taxpayer suggest that the Court's holding rests on something less
than a constitutional foundation. For example, the Court conceded
that standing had previously been conferred on municipal taxpayers
to sue in that capacity. However, the Court viewed the interest of
a federal taxpayer in total federal tax revenues as "comparatively
minute and indeterminable" when measured against a municipal
taxpayer's interest in a smaller city treasury. Id. at 262 U. S.
486 -487. This suggests that the petitioner in Frothingham was denied standing not because she was a
taxpayer, but because her tax bill was not large enough. In
addition, the Court spoke of the "attendant inconveniences" of
entertaining that taxpayer's suit because it might open the door of
federal courts to countless such suits

															"in respect of every other appropriation act and statute whose
administration requires the outlay of public money, and whose
validity may be questioned." Id. at 262 U. S. 487 .
Such a statement suggests pure policy considerations. Page 392 U. S. 94 To the extent that Frothingham has been viewed as
resting on policy considerations, it has been criticized as
depending on assumptions not consistent with modern conditions. For
example, some commentators have pointed out that a number of
corporate taxpayers today have a federal tax liability running into
hundreds of millions of dollars, and such taxpayers have a far
greater monetary stake in the Federal Treasury than they do in any
municipal treasury. [ Footnote
8 ] To some degree, the fear expressed in Frothingham that allowing one taxpayer to sue would inundate the federal courts
with countless similar suits has been mitigated by the ready
availability of the devices of class actions and joinder under the
Federal Rules of Civil Procedure, adopted subsequent to the
decision in Frothingham. [ Footnote 9 ] Whatever the merits of the current debate over Frothingham, its very existence suggests that we should
undertake a fresh examination of the limitations upon standing to
sue in a federal court and the application of those limitations to
taxpayer suits. III The jurisdiction of federal courts is defined and limited by
Article III of the Constitution. In terms relevant to the question
for decision in this case, the judicial power of federal courts is
constitutionally restricted to "cases" and "controversies." As is
so often the situation in constitutional adjudication, those two
words have an iceberg quality, containing beneath their surface
simplicity submerged complexities which go to the very heart of our
constitutional form of government. Embodied in the Page 392 U. S. 95 words "cases" and "controversies" are two complementary but
somewhat different limitations. In part, those words limit the
business of federal courts to questions presented in an adversary
context and in a form historically viewed as capable of resolution
through the judicial process. And in part those words define the
role assigned to the judiciary in a tripartite allocation of power
to assure that the federal courts will not intrude into areas
committed to the other branches of government. Justiciability is
the term of art employed to give expression to this dual limitation
placed upon federal courts by the "case and controversy"
doctrine.

															Justiciability is itself a concept of uncertain meaning and
scope. Its reach is illustrated by the various grounds upon which
questions sought to be adjudicated in federal courts have been held
not to be justiciable. Thus, no justiciable controversy is
presented when the parties seek adjudication of only a political
question, [ Footnote 10 ] when
the parties are asking for an advisory opinion, [ Footnote 11 ] when the question sought to be
adjudicated has been mooted by subsequent developments, [ Footnote 12 ] and when there is no
standing to maintain the action. [ Footnote 13 ] Yet it remains true that

															"[j]usticiability is . . . not a legal concept with a fixed
content or susceptible of scientific verification. Its utilization
is the resultant of many subtle pressures. . . ." Poe v. Ullman, 367 U. S. 497 , 367 U. S. 508 (1961).

															Part of the difficulty in giving precise meaning and form to the
concept of justiciability stems from the uncertain Page 392 U. S. 96 historical antecedents of the "case and controversy" doctrine.
For example, Mr. Justice Frankfurter twice suggested that
historical meaning could be imparted to the concepts of
justiciability and case and controversy by reference to the
practices of the courts of Westminster when the Constitution was
adopted. Joint Anti-Fascist Committee v. McGrath, 341 U. S. 123 , 341 U. S. 150 (1951) (concurring opinion); Coleman v. Miller, 307 U. S. 433 , 307 U. S. 460 (1939) (separate opinion). However, the power of English judges to
deliver advisory opinions was well established at the time the
Constitution was drafted. 3 K. Davis, Administrative Law Treatise
127-128 (1958). And it is quite clear that "the oldest and most
consistent thread in the federal law of justiciability is that the
federal courts will not give advisory opinions." C. Wright, Federal
Courts 34 (1963). [ Footnote
14 ] Thus, the implicit policies embodied in Article III, and
not history alone, impose the rule against advisory opinions on
federal courts. When the federal judicial power is invoked to pass
upon the validity of actions by the Legislative and Executive
Branches of the Government, the rule against advisory opinions
implements the separation of powers prescribed by the Constitution
and confines federal courts to the role assigned them by Article
III. See Muskrat v. United States, 219 U.
S. 346 (1911); 3 H. Johnston, Correspondence and Public
Papers of John Jay 486-489 (1891) (correspondence between Secretary
of State Jefferson and Chief Justice Jay). However, the rule
against advisory opinions also recognizes that such suits often

															"are not pressed before the Court with that clear concreteness
provided when a question emerges precisely Page 392 U. S. 97 framed and necessary for decision from a clash of adversary
argument exploring every aspect of a multi-faced situation
embracing conflicting and demanding interests." United States v. Fruehauf, 365 U.
S. 146 , 365 U. S. 157 (1961). Consequently, the Article III prohibition against advisory
opinions reflects the complementary constitutional considerations
expressed by the justiciability doctrine: federal judicial power is
limited to those disputes which confine federal courts to a role
consistent with a system of separated powers and which are
traditionally thought to be capable of resolution through the
judicial process.

															Additional uncertainty exists in the doctrine of justiciability
because that doctrine has become a blend of constitutional
requirements and policy considerations. And a policy limitation is
"not always clearly distinguished from the constitutional
limitation." Barrows v. Jackson, 346 U.
S. 249 , 346 U. S. 255 (1953). For example, in his concurring opinion in Ashwander v.
Tennessee Valley Authority, 297 U. S. 288 , 297 U. S.
345 -348 (1936), Mr. Justice Brandeis listed seven rules
developed by this Court "for its own governance" to avoid passing
prematurely on constitutional questions. Because the rules operate
in "cases confessedly within [the Court's] jurisdiction," id. at 297 U. S. 346 ,
they find their source in policy, rather than purely
constitutional, considerations. However, several of the cases cited
by Mr. Justice Brandeis in illustrating the rules of
self-governance articulated purely constitutional grounds for
decision. See, e.g., Massachusetts v. Mellon, 262 U.
S. 447 (1923); Fairchild v. Hughes, 258 U. S. 126 (1922); Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339 (1892). The "many subtle pressures" [ Footnote 15 ] which cause policy considerations to blend
into the constitutional limitations of Article III make the
justiciability doctrine one of uncertain and shifting contours. Page 392 U. S. 98 It is in this context that the standing question presented by
this case must be viewed and that the Government's argument on that
question must be evaluated. As we understand it, the Government's
position is that the constitutional scheme of separation of powers,
and the deference owed by the federal judiciary to the other two
branches of government within that scheme, present an absolute bar
to taxpayer suits challenging the validity of federal spending
programs. The Government views such suits as involving no more than
the mere disagreement by the taxpayer "with the uses to which tax
money is put." [ Footnote 16 ]
According to the Government, the resolution of such disagreements
is committed to other branches of the Federal Government, and not
to the judiciary. Consequently, the Government contends that under
no circumstances should standing be conferred on federal taxpayers
to challenge a federal taxing or spending program. [ Footnote 17 ] An analysis of the function
served by standing limitations compels a rejection of the
Government's position.

															Standing is an aspect of justiciability, and, as such, the
problem of standing is surrounded by the same complexities and
vagaries that inhere in justiciability. Page 392 U. S. 99 Standing has been called one of "the most amorphous [concepts]
in the entire domain of public law." [ Footnote 18 ] Some of the complexities peculiar to
standing problems result because standing "serves, on occasion, as
a shorthand expression for all the various elements of
justiciability." [ Footnote
19 ] In addition, there are at work in the standing doctrine the
many subtle pressures which tend to cause policy considerations to
blend into constitutional limitations. [ Footnote 20 ]

															Despite the complexities and uncertainties, some meaningful form
can be given to the jurisdictional limitations placed on federal
court power by the concept of standing. The fundamental aspect of
standing is that it focuses on the party seeking to get his
complaint before a federal court, and not on the issues he wishes
to have adjudicated. The "gist of the question of standing" is
whether the party seeking relief has

															"alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions." Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962). In other words, when standing is placed in issue in a case,
the question is whether the person whose standing is Page 392 U. S. 100 challenged is a proper party to request an adjudication of a
particular issue, and not whether the issue itself is justiciable.
[ Footnote 21 ] Thus, a party
may have standing in a particular case, but the federal court may
nevertheless decline to pass on the merits of the case because, for
example, it presents a political question. [ Footnote 22 ] A proper party is demanded so that
federal courts will not be asked to decide "ill-defined
controversies over constitutional issues," United Public
Workers v. Mitchell, 330 U. S. 75 , 330 U. S. 90 (1947), or a case which is of "a hypothetical or abstract
character," Aetna Life Insurance Co. v. Haworth, 300 U. S. 227 , 300 U. S. 240 (1937). So stated, the standing requirement is closely related to,
although more general than, the rule that federal courts will not
entertain friendly suits, Chicago & Grand Trunk R. Co. v.
Wellman, supra, or those which are feigned or collusive in
nature, United States v. Johnson, 319 U.
S. 302 (1943); Lord v.
Veazie , 8 How. 251 (1850).

															When the emphasis in the standing problem is placed on whether
the person invoking a federal court's jurisdiction is a proper
party to maintain the action, the weakness of the Government's
argument in this case becomes apparent. The question whether a
particular person is a proper party to maintain the action does
not, by its own force, raise separation of powers problems related
to improper judicial interference in areas committed to other
branches of the Federal Government. Such problems Page 392 U. S. 101 arise, if at all, only from the substantive issues the
individual seeks to have adjudicated. Thus, in terms of Article III
limitations on federal court jurisdiction, the question of standing
is related only to whether the dispute sought to be adjudicated
will be presented in an adversary context and in a form
historically viewed as capable of judicial resolution. It is for
that reason that the emphasis in standing problems is on whether
the party invoking federal court jurisdiction has "a personal stake
in the outcome of the controversy," Baker v. Carr, supra, at 369 U. S. 204 ,
and whether the dispute touches upon "the legal relations of
parties having adverse legal interests." Aetna Life Insurance
Co. v. Haworth, supra, at 300 U. S.
240 -241. A taxpayer may or may not have the requisite
personal stake in the outcome, depending upon the circumstances of
the particular case. Therefore, we find no absolute bar in Article
III to suits by federal taxpayers challenging allegedly
unconstitutional federal taxing and spending programs. There
remains, however, the problem of determining the circumstances
under which a federal taxpayer will be deemed to have the personal
stake and interest that impart the necessary concrete adverseness
to such litigation so that standing can be conferred on the
taxpayer qua taxpayer consistent with the constitutional
limitations of Article III. IV The various rules of standing applied by federal courts have not
been developed in the abstract. Rather, they have been fashioned
with specific reference to the status asserted by the party whose
standing is challenged and to the type of question he wishes to
have adjudicated. We have noted that, in deciding the question of
standing, it is not relevant that the substantive issues in the
litigation might be nonjusticiable. However, our decisions Page 392 U. S. 102 establish that, in ruling on standing, it is both appropriate
and necessary to look to the substantive issues for another
purpose, namely, to determine whether there is a logical nexus
between the status asserted and the claim sought to be adjudicated.
For example, standing requirements will vary in First Amendment
religion cases depending upon whether the party raises an
Establishment Clause claim or a claim under the Free Exercise
Clause. See McGowan v. Maryland, 366 U.
S. 420 , 366 U. S.
429 -430 (1961). Such inquiries into the nexus between
the status asserted by the litigant and the claim he presents are
essential to assure that he is a proper and appropriate party to
invoke federal judicial power. Thus, our point of reference in this
case is the standing of individuals who assert only the status of
federal taxpayers and who challenge the constitutionality of a
federal spending program. Whether such individuals have standing to
maintain that form of action turns on whether they can demonstrate
the necessary stake as taxpayers in the outcome of the litigation
to satisfy Article III requirements.

															The nexus demanded of federal taxpayers has two aspects to it.
First, the taxpayer must establish a logical link between that
status and the type of legislative enactment attacked. Thus, a
taxpayer will be a proper party to allege the unconstitutionality
only of exercises of congressional power under the taxing and
spending clause of Art. I, § 8, of the Constitution. It will not be
sufficient to allege an incidental expenditure of tax funds in the
administration of an essentially regulatory statute. This
requirement is consistent with the limitation imposed upon
state-taxpayer standing in federal courts in Doremus v. Board
of Education, 342 U. S. 429 (1952). Secondly, the taxpayer must establish a nexus between that
status and the precise nature of the constitutional infringement
alleged. Under this requirement, the taxpayer must show that the
challenged enactment exceeds Page 392 U. S. 103 specific constitutional limitations imposed upon the exercise of
the congressional taxing and spending power, and not simply that
the enactment is generally beyond the powers delegated to Congress
by Art. I, § 8. When both nexuses are established, the litigant
will have shown a taxpayer's stake in the outcome of the
controversy, and will be a proper and appropriate party to invoke a
federal court's jurisdiction.

															The taxpayer appellants in this case have satisfied both nexuses
to support their claim of standing under the test we announce
today. Their constitutional challenge is made to an exercise by
Congress of its power under Art. I, § 8, to spend for the general
welfare, and the challenged program involves a substantial
expenditure of federal tax funds. [ Footnote 23 ] In addition, appellants have alleged that
the challenged expenditures violate the Establishment and Free
Exercise Clauses of the First Amendment. Our history vividly
illustrates that one of the specific evils feared by those who
drafted the Establishment Clause and fought for its adoption was
that the taxing and spending power would be used to favor one
religion over another or to support religion in general. James
Madison, who is generally recognized as the leading architect of
the religion clauses of the First Amendment, observed in his famous
Memorial and Remonstrance Against Religious Assessments that

															"the same authority which can force a citizen to contribute
three pence only of his property for the support of any one
establishment may force him to conform to any other establishment
in all cases whatsoever."

															2 Writings of James Madison 183, 186 (Hunt ed.1901). The concern
of Madison and his supporters was quite clearly that religious
liberty ultimately would be the victim if Page 392 U. S. 104 government could employ its taxing and spending powers to aid
one religion over another or to aid religion in general. [ Footnote 24 ] The Establishment
Clause was designed as a specific bulwark against such potential
abuses of governmental power, and that clause of the First
Amendment [ Footnote 25 ]
operates as a specific constitutional limitation upon the exercise
by Congress of the taxing and spending power conferred by Art. I, §
8.

															The allegations of the taxpayer in Frothingham v. Mellon,
supra, were quite different from those made in this case, and
the result in Frothingham is consistent with the test of
taxpayer standing announced today. The taxpayer in Frothingham attacked a federal spending program, and she,
therefore, established the first nexus Page 392 U. S. 105 required. However, she lacked standing because her
constitutional attack was not based on an allegation that Congress,
in enacting the Maternity Act of 1921, had breached a specific
limitation upon its taxing and spending power. The taxpayer in Frothingham alleged essentially that Congress, by enacting
the challenged statute, had exceeded the general powers delegated
to it by Art. I, § 8, and that Congress had thereby invaded the
legislative province reserved to the States by the Tenth Amendment.
To be sure, Mrs. Frothingham made the additional allegation that
her tax liability would be increased as a result of the allegedly
unconstitutional enactment, and she framed that allegation in terms
of a deprivation of property without due process of law. However,
the Due Process Clause of the Fifth Amendment does not protect
taxpayers against increases in tax liability, and the taxpayer in Frothingham failed to make any additional claim that the
harm she alleged resulted from a breach by Congress of the specific
constitutional limitations imposed upon an exercise of the taxing
and spending power. In essence, Mrs. Frothingham was attempting to
assert the States' interest in their legislative prerogatives, and
not a federal taxpayer's interest in being free of taxing and
spending in contravention of specific constitutional limitations
imposed upon Congress' taxing and spending power.

															We have noted that the Establishment Clause of the First
Amendment does specifically limit the taxing and spending power
conferred by Art. I, § 8. Whether the Constitution contains other
specific limitations can be determined only in the context of
future cases. However, whenever such specific limitations are
found, we believe a taxpayer will have a clear stake as a taxpayer
in assuring that they are not breached by Congress. Consequently,
we hold that a taxpayer will have standing Page 392 U. S. 106 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 those constitutional provisions
which operate to restrict the exercise of the taxing and spending
power. The taxpayer's allegation in such cases would be that his
tax money is being extracted and spent in violation of specific
constitutional protections against such abuses of legislative
power. Such an injury is appropriate for judicial redress, and the
taxpayer has established the necessary nexus between his status and
the nature of the allegedly unconstitutional action to support his
claim of standing to secure judicial review. Under such
circumstances, we feel confident that the questions will be framed
with the necessary specificity, that the issues will be contested
with the necessary adverseness, and that the litigation will be
pursued with the necessary vigor to assure that the constitutional
challenge will be made in a form traditionally thought to be
capable of judicial resolution. We lack that confidence in cases,
such as Frothingham, where a taxpayer seeks to employ a
federal court as a forum in which to air his generalized grievances
about the conduct of government or the allocation of power in the
Federal System.

															While we express no view at all on the merits of appellants'
claims in this case, [ Footnote
26 ] their complaint contains sufficient allegations under the
criteria we have outlined to give them standing to invoke a federal
court's jurisdiction for an adjudication on the merits. Reversed. Page 392 U. S. 107 [ Footnote 1 ]

															The complaint alleged that one of the appellants "has children
regularly registered in and attending the elementary or secondary
grades in the public schools of New York." However, the District
Court did not view that additional allegation as being relevant to
the question of standing, and appellants have made no effort to
justify their standing on that additional ground.

															[ Footnote 2 ]

															This issue was not raised in the court below, and the Government
argued it for the first time in its brief in this Court. The
Government claims the inappropriateness of convening a three-judge
court became apparent only as the issues in the case have been
clarified by appellants. Because the question now presented goes to
our jurisdiction on direct appeal, the lateness of the claim is
irrelevant to our consideration of it. United States v.
Griffin, 303 U. S. 226 , 303 U. S. 229 (1938).

															[ Footnote 3 ]

															The Government also seems to argue that, if any administrative
action is suspect, it is the action of state officials, and not of
appellees. For example, the Government describes federal
participation in the challenged programs as "remote." Brief for
Appellees 17. The premise for this argument is apparently that,
under 20 U.S.C. § 241e, programs of local educational agencies
require only the direct approval of state officials to be eligible
for grants. However, appellees are given broad powers of
supervision over state participation by 20 U.S.C. § 241f, and it is
federal funds administered by appellees that finance the local
programs. We cannot characterize such federal participation as
"remote."

															[ Footnote 4 ]

															An additional requirement for the convening of a three-judge
court is that the constitutional question presented be substantial. See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U. S. 713 (1962); Ex parte Poresky, 290 U. S.
30 (1933). The Government does not dispute the
substantiality of the constitutional attack made by appellants on
the Elementary and Secondary Education Act of 1965. See Flast
v. Gardner, 267 F.
Supp. 351 , 352 (1967).

															[ Footnote 5 ]

															In at least three cases prior to Frothingham, the Court
accepted jurisdiction in taxpayer suits without passing directly on
the standing question. Wilson v. Shaw, 204 U. S.
24 , 204 U. S. 31 (1907); Millard v. Roberts, 202 U.
S. 429 , 202 U. S. 438 (1906); Bradfield v. Roberts, 175 U.
S. 291 , 175 U. S. 295 (1899).

															[ Footnote 6 ]

															The prevailing view of the commentators is that Frothingham announced only a nonconstitutional rule of
self-restraint. See, e.g., Jaffe, Standing to Secure
Judicial Review: Private Actions,75 Harv.L.Rev. 255, 302-303
(1961); Arthur Garfield Hays Civil Liberties Conference: Public Aid
to Parochial Schools and Standing to Bring Suit, 12 Buffalo L.Rev.
35, 48-65 (1962); Davis, Standing to Challenge Governmental Action,
39 Minn.L.Rev. 353, 386-391 (1955). But see Hearings on S.
2097 before the Subcommittee on Constitutional Rights of the Senate
Judiciary Committee, 89th Cong., 2d Sess., 465, 467-468 (1966)
(statement of Prof. William D. Valente). The last-cited hearings
contain the best collection of recent expression of views on this
question.

															[ Footnote 7 ]

															"Although the Court in the latter part of the opinion used
language suggesting that it did not find the elements of a
justiciable controversy present in the case, the case in its
central aspect turns on application of the judicially formulated
[ i.e., nonconstitutional] rules respecting standing."

															Hearings on S. 2097, supra, n 6, at 503 (statement of Prof. Paul G. Kauper).

															[ Footnote 8 ] See, e.g., Hearings on S. 2097, supra, n 6, at 493 (statement of Prof.
Kenneth C. Davis); Note, 69 Yale L.J. 895, 917, and n. 127
(1960).

															[ Footnote 9 ]

															Judge Frankel's dissent below also noted that federal courts
have learned in recent years to cope effectively with "huge
litigations" and "redundant actions." 271 F. Supp. at 17.

															[ Footnote 10 ] See, e.g., Commercial Trust Co. v. Miller, 262 U. S.
51 (1923); Luther v.
Borden , 7 How. 1 (1849).

															[ Footnote 11 ] See, e.g., United States v. Fruehauf, 365 U.
S. 146 (1961); Muskrat v. United States, 219 U. S. 346 (1911).

															[ Footnote 12 ] See, e.g., California v. San Pablo & T. R. Co., 149 U. S. 308 (1893).

															[ Footnote 13 ] See, e.g., Tileston v. Ullman, 318 U. S.
44 (1943); Frothingham v. Mellon, 262 U.
S. 447 (1923).

															[ Footnote 14 ]

															The rule against advisory opinions was established as early as
1793, see 3 H. Johnston, Correspondence and Public Papers
of John Jay 486-489 (1891), and the rule has been adhered to
without deviation. See United States v. Fruehauf, 365 U. S. 146 , 365 U. S. 157 (1961), and cases cited therein.

															[ Footnote 15 ] Poe v. Ullman, 367 U. S. 497 , 367 U. S. 508 (1961).

															[ Footnote 16 ]

															Brief for Appellees 7.

															[ Footnote 17 ]

															The logic of the Government's argument would compel it to
concede that a taxpayer would lack standing even if Congress
engaged in such palpably unconstitutional conduct as providing
funds for the construction of churches for particular sects. See Flast v. Gardner, 271 F. Supp.
1 , 5 (1967) (dissenting opinion of Frankel, J.). The Government
professes not to be bothered by such a result because it contends
there might be individuals in society other than taxpayers who
could invoke federal judicial power to challenge such
unconstitutional appropriations. However, if, as we conclude, there
are circumstances under which a taxpayer will be a proper and
appropriate party to seek judicial review of federal statutes, the
taxpayer's access to federal courts should not be barred because
there might be at large in society a hypothetical plaintiff who
might possibly bring such a suit.

															[ Footnote 18 ]

															Hearings on S. 2097, supra, n 6, at 498 (statement of Prof. Paul A. Freund).

															[ Footnote 19 ]

															Lewis, Constitutional Rights and the Misuse of "Standing," 14
Stan.L.Rev. 433, 453 (1962).

															[ Footnote 20 ]

															Thus, a general standing limitation imposed by federal courts is
that a litigant will ordinarily not be permitted to assert the
rights of absent third parties. See, e.g., Heald v. District of
Columbia, 259 U. S. 114 , 259 U. S. 123 (1922); Yazoo & Miss. Valley R. Co. v. Jackson Vinegar
Co., 226 U. S. 217 (1912). However, this rule has not been imposed uniformly as a firm
constitutional restriction on federal court jurisdiction. See,
e.g., Dombrowski v. Pfister, 380 U. S. 479 , 380 U. S.
486 -487 (1965); Barrows v. Jackson, 346 U. S. 249 (1953).

															[ Footnote 21 ]

															This distinction has not always appeared with clarity in prior
cases. See Bickel, Foreword: The Passive Virtues, The
Supreme Court, 1960 Term, 75 Harv.L.Rev. 40, 75-76 (1961).

															[ Footnote 22 ]

															One contemporary commentator advanced such an explanation for
the holding in Frothingham, suggesting that the standing
rationale was simply a device used by the Court to avoid judicial
inquiry into questions of social policy and the political wisdom of
Congress. See Finkelstein, Judicial Self-Limitation, 37
Harv.L.Rev. 338, 359-364 (1924).

															[ Footnote 23 ]

															Almost $1,000,000,000 was appropriated to implement the
Elementary and Secondary Education Act in 1965. 79 Stat. 832.

															[ Footnote 24 ]

															The Memorial and Remonstrance was Madison's impassioned reaction
to a bill introduced in the Virginia General Assembly in 1785 to
provide a tax levy to support teachers of the Christian religion.
Madison's eloquent opposition to the levy generated strong support
in Virginia, and the Assembly postponed consideration of the
proposal until its next session. When the bill was revived, it died
in committee, and the Assembly instead enacted the famous Virginia
Bill for Religious Liberty authored by Thomas Jefferson. The
Virginia experience is recounted in S. Cobb, Rise of Religious
Liberty in America 490-499 (1902).

															[ Footnote 25 ]

															Appellants have also alleged that the Elementary and Secondary
Education Act of 1965 violates the Free Exercise Clause of the
First Amendment. This Court has recognized that the taxing power
can be used to infringe the free exercise of religion. Murdock
v. Pennsylvania, 319 U. S. 105 (1943). Since we hold that appellants' Establishment Clause claim
is sufficient to establish the nexus between their status and the
precise nature of the constitutional infringement alleged, we need
not decide whether the Free Exercise claim, standing alone, would
be adequate to confer standing in this case. We do note, however,
that the challenged tax in Murdock operated upon a
particular class of taxpayers. When such exercises of the taxing
power are challenged, the proper party emphasis in the federal
standing doctrine would require that standing be limited to the
taxpayers within the affected class.

															[ Footnote 26 ]

															In fact, it is impossible to make any such judgment in the
present posture of this case. The proceedings in the court below
thus far have been devoted solely to the threshold question of
standing, and nothing in the record bears upon the merits of the
substantive questions presented in the complaint.

															MR. JUSTICE DOUGLAS, concurring.

															While I have joined the opinion of the Court, I do not think
that the test it lays down is a durable one, for the reasons stated
by my Brother HARLAN. I think, therefore, that it will suffer
erosion, and, in time, result in the demise of Frothingham v.
Mellon, 262 U. S. 447 . It
would therefore be the part of wisdom, as I see the problem, to be
rid of Frothingham here and now.

															I do not view with alarm, as does my Brother HARLAN, the
consequences of that course. Frothingham, decided in 1923,
was in the heyday of substantive due process, when courts were
sitting in judgment on the wisdom or reasonableness of legislation.
The claim in Frothingham was that a federal regulatory Act
dealing with maternity deprived the plaintiff of property without
due process of law. When the Court used substantive due process to
determine the wisdom or reasonableness of legislation, it was
indeed transforming itself into the Council of Revision which was
rejected by the Constitutional Convention. It was that judicial
attitude, not the theory of standing to sue rejected in Frothingham, that involved "important hazards for the
continued effectiveness of the federal judiciary," to borrow a
phrase from my Brother HARLAN. A contrary result in Frothingham in that setting might well have accentuated an
ominous trend to judicial supremacy.

															But we no longer undertake to exercise that kind of power.
Today's problem is in a different setting.

															Most laws passed by Congress do not contain even a ghost of a
constitutional question. The "political" decisions, as
distinguished from the "justiciable" ones, occupy most of the
spectrum of congressional action. The case or controversy
requirement comes into play only when the Federal Government does
something that affects a person's life, his liberty, or his
property. The wrong may be slight or it may be grievous. Madison,
in denouncing Page 392 U. S. 108 state support of churches, said the principle was violated when
even "three pence" was appropriated to that cause by the
Government. [ Footnote 2/1 ] It
therefore does not do to talk about taxpayers' interest as
"infinitesimal." The restraint on "liberty" may be fleeting and
passing, and still violate a fundamental constitutional guarantee.
The "three pence" mentioned by Madison may signal a monstrous
invasion by the Government into church affairs, and so on.

															The States have experimented with taxpayers' suits and, with
only two exceptions, [ Footnote 2/2 ]
now allow them. A few state decisions are frankly based on the
theory that a taxpayer is a private attorney general seeking to
indicate the public interest. [ Footnote
2/3 ] Some of them require that the taxpayer have more than an
infinitesimal financial stake in the problem. [ Footnote 2/4 ] At the federal level, Congress can,
of Page 392 U. S. 109 course, define broad categories of "aggrieved" persons who have
standing to litigate cases or controversies. But, contrary to what
my Brother HARLAN suggests, the failure of Congress to act has not
barred this Court from allowing standing to sue and from providing
remedies. The multitude of cases under the Fourth, as well as the
Fourteenth, Amendment, are witness enough. [ Footnote 2/5 ]

															The constitutional guide is "cases" or "controversies" within
the meaning of § 2 of Art. III of the Constitution. As respects our
appellate jurisdiction, Congress may largely fashion it as Congress
desires by reason of the express provisions of § 2, Art. III. See Ex parte
McCardle , 7 Wall. 506. But where there is judicial
power to act, there is judicial power to deal with all the facets
of the old issue of standing.

															Taxpayers can be vigilant private attorneys general. Their stake
in the outcome of litigation may be de minimis by
financial standards, yet very great when measured by a particular
constitutional mandate. My Brother HARLAN's opinion reflects the
British, not the American, tradition of constitutionalism. We have
a written Constitution, and it is full of "thou shalt nots"
directed at Congress and the President, as well as at the
courts. Page 392 U. S. 110 And the role of the federal courts is not only to serve as
referee between the States and the center, but also to protect the
individual against prohibited conduct by the other two branches of
the Federal Government.

															There has long been a school of thought here that the less the
judiciary does, the better. It is often said that judicial
intrusion should be infrequent, since it is "always attended with a
serious evil, namely, that the correction of legislative mistakes
comes from the outside, and the people thus lose the political
experience, and the moral education and stimulus that come from
fighting the question out in the ordinary way, and correcting their
own errors"; that the effect of a participation by the judiciary in
these processes is "to dwarf the political capacity of the people,
and to deaden its sense of moral responsibility." J. Thayer, John
Marshall 106, 107 (1901).

															The late Edmond Cahn, who opposed that view, stated my
philosophy. He emphasized the importance of the role that the
federal judiciary was designed to play in guarding basic rights
against majoritarian control. He chided the view expressed by my
Brother HARLAN:

															"we are entitled to reproach the majoritarian justices of the
Supreme Court . . . with straining to be reasonable when they ought
to be adamant."

															Can the Supreme Court Defend Civil Liberties? in Samuel, ed.,
Toward a Better America 132, 144 (1968). His description of our
constitutional tradition was in these words:

															"Be not reasonable with inquisitions, anonymous informers, and
secret files that mock American justice. Be not reasonable with
punitive denationalizations, ex post facto deportations,
labels of disloyalty, and all the other stratagems for outlawing
human beings from the community of mankind. These devices have put
us to shame. Exercise the full judicial power of the United States;
nullify Page 392 U. S. 111 them, forbid them, and make us proud again." Id. 144-145.

															The judiciary is an indispensable part of the operation of our
federal system. With the growing complexities of government, it is
often the one and only place where effective relief can be
obtained. If the judiciary were to become a super-legislative group
sitting in judgment on the affairs of people, the situation would
be intolerable. But where wrongs to individuals are done by
violation of specific guarantees, it is abdication for courts to
close their doors.

															Marshall wrote in Marbury v.
Madison , 1 Cranch 137, 5 U. S. 178 ,
that, if the judiciary stayed its hand in deference to the
legislature, it would give the legislature "a practical and real
omnipotence." My Brother HARLAN's view would do just that, for,
unless Congress created a procedure through which its legislative
creation could be challenged quickly and with ease, the momentum of
what it had done would grind the dissenter under.

															We have a Constitution designed to keep government out of
private domains. But the fences have often been broken down, and Frothingham denied effective machinery to restore them.
The Constitution, even with the judicial gloss it has acquired,
plainly is not adequate to protect the individual against the
growing bureaucracy in the Legislative and Executive Branches. He
faces a formidable opponent in government, even when he is endowed
with funds and with courage. The individual is almost certain to be
plowed under unless he has a well organized active political group
to speak for him. The church is one. The press is another. The
union is a third. But if a powerful sponsor is lacking, individual
liberty withers -- in spite of glowing opinions and resounding
constitutional phrases.

															I would not be niggardly, therefore, in giving private attorneys
general standing to sue. I would certainly not Page 392 U. S. 112 wait for Congress to give its blessing to our deciding cases
clearly within our Article III jurisdiction. To wait for a sign
from Congress is to allow important constitutional questions to go
undecided and personal liberty unprotected.

															There need be no inundation of the federal courts if taxpayers'
suits are allowed. There is a wise judicial discretion that usually
can distinguish between the frivolous question and the substantial
question, between cases ripe for decision and cases that need prior
administrative processing, and the like. [ Footnote 2/6 ] When the judiciary is no longer "a great
rock" [ Footnote 2/7 ] in the storm,
as Lord Sankey once put it, when the courts are niggardly in the
use of their power and reach great issues only timidly and
reluctantly, the force of the Constitution in the life of the
Nation is greatly weakened.

															Gideon Hausner, after reviewing the severe security measures
sometimes needed for Israel's survival and the vigilance of her
courts in maintaining the rights of individuals, recently
stated,

															"When all is said and done, one is inclined to think that a
rigid constitutional frame is on the whole preferable even if it
serves no better purpose than obstructing and embarrassing an
over-active Executive."

															Individuals' Rights in the Courts of Israel, International
Lawyers Convention In Israel, 1958, pp. 201, 228 (1959).

															That observation is apt here, whatever the transgression and
whatever branch of government may be implicated. We have recently
reviewed the host of devices Page 392 U. S. 113 used by the States to avoid opening to Negroes public facilities
enjoyed by whites. Green v. School Board of New Kent
County, 391 U. S. 430 ; Raney v. Board of Education, 391 U.
S. 443 ; Monroe v. Board of Commissioners, 391 U. S. 450 .
There is a like process at work at the federal level in respect to
aid to religion. The efforts made to insert in the law an express
provision which would allow federal aid to sectarian schools to be
reviewable in the courts was defeated. [ Footnote 2/8 ] The mounting federal aid to sectarian
schools is notorious, and the subterfuges numerous. [ Footnote 2/9 ] Page 392 U. S. 114 I would be as liberal in allowing taxpayers standing to object
to these violations of the First Amendment as I would in granting
standing to people to complain of any invasion of their rights
under the Fourth Amendment or the Fourteenth or under any other
guarantee in the Constitution itself or in the Bill of Rights.

															[ Footnote 2/1 ]

															Memorial and Remonstrance against Religious Assessments, 2
Writings of James Madison 186 (Hunt ed.1901).

															[ Footnote 2/2 ]

															The two clear exceptions are municipal taxpayers' suits in
Kansas ( see Asendorf v. Common School Dist. No. 102, 175
Kan. 601, 266 P.2d 309 (1954)) and state taxpayers' suits in New York ( see Schieffelin
v. Komfort, 212 N.Y. 520, 106 N.E. 675 (1914); St. Clair
v. Yonkers Raceway, 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d
15 (1963); but see Kuhn v. Curran, 294 N.Y. 207, 61 N.E.2d
513 (1945)).

															[ Footnote 2/3 ] See, e.g., Clapp v. Town of Jaffrey, 97 N.H. 456, 91
A.2d 464 (1952); Vibberts v. Hart, 85 R.I. 35, 125
A.2d 193 (1956); Lien v. Northwestern Engineering Co., 74 S.D. 476, 54 N.W.2d
472 (1952). ("It is now the settled law of this state that a
taxpayer or elector having no special interest may institute an
action to protect a public right." 74 S.D. at 479, 54 N.W.2d at
474.)

															[ Footnote 2/4 ] See, e.g., Crews v. Beattie, 197 S.C. 32, 14 S.E.2d 351
(1941); Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180
(1943) (taxpayer may not enjoin state expenditure of $1.49); contra, Richardson v. Blackburn, 41 Del.Ch. 54, 187
A.2d 823 (1963); Woodard v. Reily, 244 La. 337, 152 So. 2d
41 (1963).

															The estimates of commentators as to how many jurisdictions have
specifically upheld taxpayers' suits range from 32 to 40. See
generally 3 K. Davis, Administrative Law Treatise § 22.09
(1958), §§ 22.09-22.10 (1965 Supp.); Jaffe, Standing to Secure
Judicial Review: Public Actions, 74 Harv.L.Rev. 1265, 1276-1281
(1961); Comment, Taxpayers' Suits: A Survey and Summary, 69 Yale
L.J. 895 (1960); St. Clair v. Yonkers Raceway, 13 N.Y.2d
72, 77-81, 242 N.Y.S.2d 43, 45-49, 192 N.E.2d 15, 16-19 (1963)
(dissenting opinion of Fuld, J.).

															[ Footnote 2/5 ] See, e.g., NAACP v. Alabama, 357 U.
S. 449 ; Pierce v. Society of Sisters, 268 U. S. 510 . As
the Court said in Barrows v. Jackson, 346 U.
S. 249 , 346 U. S. 255 ,
apart from Article III jurisdictional questions, standing involves
a "rule of self-restraint for its own governance" which "this Court
has developed" itself. And attempts by Congress to confer standing
when it is constitutionally lacking are unavailing. Muskrat v.
United States, 219 U. S. 346 .

															[ Footnote 2/6 ]

															"The general indifference of private individuals to public
omissions and encroachments, the fear of expense in unsuccessful,
and even in successful, litigation, and the discretion of the court
have been, and doubtless will continue to be, a sufficient guard to
these public officials against too numerous and unreasonable
attacks." Ferry v. Williams, 41 N.J.L. 332, 339 (Sup.Ct.
1879).

															[ Footnote 2/7 ]

															Quoted in the Law Times, March 17, 1928, at 242.

															[ Footnote 2/8 ]

															These efforts, commencing in 1961, are discussed in S.Rep. No.
85, 90th Cong., 1st Sess., 2-3 (1967), and S.Rep. No. 473, 90th
Cong., 1st Sess., 115 (1967). The Senate added such a provision to
the Higher Education Facilities Act of 1963, but it did not survive
conference. S.Rep. No. 85, at 2. A bill, S. 3, to make certain
"establishment" questions reviewable has been reported by the
Senate in the Ninetieth Congress.

															[ Footnote 2/9 ]

															"Tuition grants to parents of students in church schools is
considered by the clerics and their helpers to have possibilities.
The idea here is that the parent receives the money, carries it
down to the school, and gives it to the priest. Since the money
pauses a moment with the parent before going to the priest, it is
argued that this evades the constitutional prohibition against
government money for religion. This is a diaphanous trick which
seeks to do indirectly what may not be done directly."

															"Another one is the 'authority.' The state may not grant aid
directly to church schools. But how about setting up an authority
-- like the Turnpike Authority? The state could give the money to
the authority which, under one pretext or another, could channel it
into the church schools."

															"Yet another favorite of those who covet sectarian subsidies is
'child benefit.' Government may not aid church schools, but it may
aid the children in the schools. The trouble with this argument is
that it proves too much. Anything that is done for a school would
presumably be of some benefit to the children in it. Government
could even build church school classrooms, under this theory,
because it would benefit the children to have nice rooms to study
in."

															21 Church & State (June 1968), p. 5 (editorial).

															MR. JUSTICE STEWART, concurring.

															I join the judgment and opinion of the Court, which I understand
to hold only that a federal taxpayer has standing to assert that a
specific expenditure of federal funds violates the Establishment
Clause of the First Amendment. Because that clause plainly
prohibits taxing and spending in aid of religion, every taxpayer
can claim a personal constitutional right not to be taxed for the
support of a religious institution. The present case is thus
readily distinguishable from Frothingham v. Mellon, 262 U. S. 447 ,
where the taxpayer did not rely on an explicit constitutional
prohibition, but instead questioned the scope of the powers
delegated to the national legislature by Article I of the
Constitution.

															As the Court notes,

															"one of the specific evils feared by those who drafted the
Establishment Clause and fought for its adoption was that the
taxing and spending power would be used to favor one religion over
another or to support religion in general." Ante at 392 U. S. 103 .
Today's decision no more than recognizes that the appellants have a
clear stake as taxpayers in assuring that they not be compelled to
contribute even "three pence . . . of [their] property for the
support of any one establishment." Ibid. In concluding
that the appellants therefore have standing to sue, we do not
undermine the salutary principle, established by Frothingham and reaffirmed today, that a taxpayer may
not

															"employ a federal court as a forum in which to air his
generalized grievances about the conduct of government or the
allocation of power in the Federal System." Ante at 392 U. S.
106 . Page 392 U. S. 115 MR. JUSTICE FORTAS, concurring.

															I would confine the ruling in this case to the proposition that
a taxpayer may maintain a suit to challenge the validity of a
federal expenditure on the ground that the expenditure violates the
Establishment Clause. As the Court's opinion recites, there is
enough in the constitutional history of the Establishment Clause to
support the thesis that this Clause includes a specific prohibition
upon the use of the power to tax to support an establishment of
religion. * There is no
reason to suggest, and no basis in the logic of this decision for
implying, that there may be other types of congressional
expenditures which may be attacked by a litigant solely on the
basis of his status as a taxpayer.

															I agree that Frothingham does not foreclose today's
result. I agree that the congressional powers to tax and spend are
limited by the prohibition upon Congress to enact laws "respecting
an establishment of religion." This thesis, slender as its basis
is, provides a direct "nexus," as the Court puts it, between the
use and collection of taxes and the congressional action here.
Because of this unique "nexus," in my judgment, it is not
far-fetched to recognize that a taxpayer has a special claim to
status as a litigant in a case raising the "establishment" issue.
This special claim is enough, I think, to permit us to allow the
suit, coupled as it is with the interest which the taxpayer and all
other citizens have in the church-state issue. In terms of the
structure and basic philosophy of our constitutional government, it
would be difficult to point to any issue that has a more intimate,
pervasive, and fundamental impact upon the life of the taxpayer --
and upon the life of all citizens.

															Perhaps the vital interest of a citizen in the establishment
issue, without reference to his taxpayer's status, Page 392 U. S. 116 would be acceptable as a basis for this challenge. We need not
decide this. But certainly, I believe, we must recognize that our
principle of judicial scrutiny of legislative acts which raise
important constitutional questions requires that the issue here
presented -- the separation of state and church -- which the
Founding Fathers regarded as fundamental to our constitutional
system -- should be subjected to judicial testing. This is not a
question which we, if we are to be faithful to our trust, should
consign to limbo, unacknowledged, unresolved, and undecided.

															On the other hand, the urgent necessities of this case and the
precarious opening through which we find our way to confront it, do
not demand that we open the door to a general assault upon
exercises of the spending power. The status of taxpayer should not
be accepted as a launching pad for an attack upon any target other
than legislation affecting the Establishment Clause. See concurring opinion of STEWART, J., ante, p. 392 U. S.
114 .

															* See ante at 392 U. S. 104 ,
n. 24.

															MR. JUSTICE HARLAN, dissenting.

															The problems presented by this case are narrow and relatively
abstract, but the principles by which they must be resolved involve
nothing less than the proper functioning of the federal courts, and
so run to the roots of our constitutional system. The nub of my
view is that the end result of Frothingham v. Mellon, 262 U. S. 447 , was
correct, even though, like others, [ Footnote 3/1 ] I do not subscribe to all of its reasoning
and premises. Although I therefore agree with certain of the
conclusions reached today by the Court, [ Footnote 3/2 ] I cannot accept the standing doctrine Page 392 U. S. 117 that it substitutes for Frothingham, for it seems to me
that this new doctrine rests on premises that do not withstand
analysis. Accordingly, I respectfully dissent. I It is desirable first to restate the basic issues in this case.
The question here is not, as it was not in Frothingham, whether "a federal taxpayer is without standing to challenge the
constitutionality of a federal statute." Ante at 392 U. S. 85 . It
could hardly be disputed that federal taxpayers may, as taxpayers,
contest the constitutionality of tax obligations imposed severally
upon them by federal statute. Such a challenge may be made by way
of defense to an action by the United States to recover the amount
of a challenged tax debt, see, e.g., 3 U.
S. United States, 3 Dall. 171; McCray v. United
States, 195 U. S. 27 ; United States v. Butler, 297 U.S. l; or to a prosecution
for willful failure to pay or to report the tax. See, e.g.,
Marchetti v. United States, 390 U. S. 39 .
Moreover, such a challenge may provide the basis of an action by a
taxpayer to obtain the refund of a previous tax payment. See,
e.g., Bailey v. Drexel Furniture Co., 259 U. S.
20 .

															The lawsuits here and in Frothingham are fundamentally
different. They present the question whether federal taxpayers qua taxpayers may, in suits in which they do not contest
the validity of their previous or existing tax obligations,
challenge the constitutionality of the uses for which Congress has
authorized the expenditure of public funds. These differences in
the purposes of the cases are reflected in differences in the
litigants' interests. An action brought to contest the validity of
tax liabilities assessed to the plaintiff is designed to vindicate
interests that are personal and proprietary. The wrongs alleged and
the relief sought by such a plaintiff are unmistakably private;
only secondarily are his interests representative of those of the
general population. I take Page 392 U. S. 118 it that the Court, although it does not pause to examine the
question, believes that the interests of those who as taxpayers
challenge the constitutionality of public expenditures may, at
least in certain circumstances, be similar. Yet this assumption is
surely mistaken. [ Footnote 3/3 ]

															The complaint in this case, unlike that, in Frothingham, contains no allegation that the contested
expenditures will in any fashion affect the amount of these
taxpayers' own existing or foreseeable tax obligations. Even in
cases in which such an allegation is made, the suit cannot result
in an adjudication either of the plaintiff's tax liabilities or of
the propriety of any particular level of taxation. The relief
available to such a plaintiff consists entirely of the vindication
of rights held in common by all citizens. It is thus scarcely
surprising that few of the state courts that permit such suits
require proof either that the challenged expenditure is
consequential in amount, or that it is likely to affect
significantly the plaintiff's own tax bill; these courts have at
least impliedly recognized that such allegations are surplusage,
useful only to preserve the form of an obvious fiction. [ Footnote 3/4 ]

															Nor are taxpayers' interests in the expenditure of public funds
differentiated from those of the general public by any special
rights retained by them in their tax payments. The simple fact is
that no such rights can sensibly be said to exist. Taxes are
ordinarily levied by the United States without limitations of
purpose; absent such a limitation, payments received by the
Treasury in satisfaction of tax obligations lawfully created become
part of the Government's general funds. The national legislature is
required by the Constitution to Page 392 U. S. 119 exercise its spending powers to "provide for the common Defence
and general Welfare." Art. I, § 8, cl. 1. Whatever other
implications there may be to that sweeping phrase, it surely means
that the United States holds its general funds not as stakeholder
or trustee for those who have paid its imposts, but as surrogate
for the population at large. Any rights of a taxpayer with respect
to the purposes for which those funds are expended are thus
subsumed in, and extinguished by, the common rights of all
citizens. To characterize taxpayers' interests in such expenditures
as proprietary or even personal either deprives those terms of all
meaning or postulates for taxpayers a scintilla juris in
funds that no longer are theirs.

															Surely it is plain that the rights and interests of taxpayers
who contest the constitutionality of public expenditures are
markedly different from those of "Hohfeldian" plaintiffs, [ Footnote 3/5 ] including those taxpayer
plaintiffs who challenge the validity of their own tax liabilities.
We must recognize that these non-Hohfeldian plaintiffs complain,
just as the petitioner in Frothingham sought to complain,
not as taxpayers, but as "private attorneys general." [ Footnote 3/6 ] The interests they represent,
and the rights they espouse, are bereft of any personal or
proprietary coloration. They are, as litigants, indistinguishable
from any group selected at random from among the general Page 392 U. S. 120 population, taxpayers and nontaxpayers alike. These are and must
be, to adopt Professor Jaffe's useful phrase, "public actions"
brought to vindicate public rights. [ Footnote 3/7 ]

															It does not, however, follow that suits brought by
non-Hohfeldian plaintiffs are excluded by the "case or controversy"
clause of Article III of the Constitution from the jurisdiction of
the federal courts. This and other federal courts have repeatedly
held that individual litigants, acting as private
attorneys-general, may have standing as "representatives of the
public interest." Scripps-Howard Radio v. Comm'n, 316 U. S. 4 , 316 U. S. 14 . See also Commission v. Sanders Radio Station, 309 U.
S. 470 , 309 U. S. 477 ; Associated Industries v. Ickes, 134 F.2d 694; Reade v.
Ewing, 205 F.2d 630; Scenic Hudson Preservation Conf. v.
FPC, 354 F.2d 608; Office of Communication of United
Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994. Compare Oklahoma v. Civil Service Comm'n, 330 U.
S. 127 , 330 U. S.
137 -139. And see, on actions qui tam,
Marvin v. Trout, 199 U. S. 212 , 199 U. S. 225 ; United States ex rel. Marcus v. Hess, 317 U.
S. 537 , 317 U. S. 546 .
The various lines of authority are by no means free of difficulty,
and certain of the cases may be explicable as involving a personal,
if remote, economic interest, but I think that it is nonetheless
clear that non-Hohfeldian plaintiffs, as such, are not
constitutionally excluded from the federal courts. The problem
ultimately presented by this case is, in my view, therefore, to
determine in what circumstances, consonant with the character and
proper functioning of the federal courts, such suits should be
permitted. [ Footnote 3/8 ] With this
preface, I shall examine the position adopted by the Court. Page 392 U. S. 121 II As I understand it, the Court's position is that it is
unnecessary to decide in what circumstances public actions should
be permitted, for it is possible to identify situations in which
taxpayers who contest the constitutionality of federal expenditures
assert "personal" rights and interests, identical in principle to
those asserted by Hohfeldian plaintiffs. This position, if
supportable, would, of course, avoid many of the difficulties of
this case; indeed, if the Court is correct, its extended
exploration of the subtleties of Article III is entirely
unnecessary. But, for reasons that follow, I believe that the
Court's position is untenable.

															The Court's analysis consists principally of the observation
that the requirements of standing are met if a taxpayer has the
"requisite personal stake in the outcome" of his suit. Ante at 392 U. S. 101 .
This does not, of course, resolve the standing problem; it merely
restates it. The Court implements this standard with the
declaration that taxpayers will be "deemed" to have the necessary
personal interest if their suits satisfy two criteria: first, the
challenged expenditure must form part of a federal spending
program, and not merely be "incidental" to a regulatory program,
and second, the constitutional provision under which the plaintiff
claims must be a "specific limitation" upon Congress' spending
powers. The difficulties with these criteria are many and severe,
but it is enough for the moment to emphasize that they are not in
any sense a measurement of any plaintiff's interest in the outcome
of any suit. As even a cursory examination of Page 392 U. S. 122 the criteria will show, the Court's standard for the
determination of standing and its criteria for the satisfaction of
that standard are entirely unrelated.

															It is surely clear that a plaintiff's interest in the outcome of
a suit in which he challenges the constitutionality of a federal
expenditure is not made greater or smaller by the unconnected fact
that the expenditure is, or is not, "incidental" to an "essentially
regulatory" program. [ Footnote 3/9 ]
An example will illustrate the point. Assume that two independent
federal programs are authorized by Congress, that the first is
designed to encourage a specified religious group by the provision
to it of direct grants in aid, and that the second is designed to
discourage all other religious groups by the imposition of various
forms of discriminatory regulation. Equal amounts are appropriated
by Congress for the two programs. If a taxpayer challenges their
constitutionality in separate suits, [ Footnote 3/10 ] are we to suppose, as evidently does the
Court, that his Page 392 U. S. 123 "personal stake" in the suit involving the second is necessarily
smaller than it is in the suit involving the first, and that he
should therefore have standing in one, but not the other?

															Presumably the Court does not believe that regulatory programs
are necessarily less destructive of First Amendment rights, or that
regulatory programs are necessarily less prodigal of public funds
than are grants in aid, for both these general propositions are
demonstrably false. The Court's disregard of regulatory
expenditures is not even a logical consequence of its apparent
assumption that taxpayer plaintiffs assert essentially monetary
interests, for it surely cannot matter to a taxpayer qua taxpayer whether an unconstitutional expenditure is used to hire
the services of regulatory personnel or is distributed among
private and local governmental agencies as grants in aid. His
interest as taxpayer arises, if at all, from the fact of an
unlawful expenditure, and not as a consequence of the expenditure's
form. Apparently the Court has repudiated the emphasis in Frothingham upon the amount of the plaintiff's tax bill,
only to substitute an equally irrelevant emphasis upon the form of
the challenged expenditure.

															The Court's second criterion is similarly unrelated to its
standard for the determination of standing. The intensity of a
plaintiff's interest in a suit is not measured, even obliquely, by
the fact that the constitutional provision under which he claims
is, or is not, a "specific limitation" upon Congress' spending
powers. Thus, among the claims in Frothingham was the
assertion that the Maternity Act, 42 Stat. 224, deprived the
petitioner of property without due process of law. The Court has
evidently concluded that this claim did not confer standing because
the Due Process Clause of the Fifth Amendment is not a specific
limitation upon the spending Page 392 U. S. 124 powers. [ Footnote 3/11 ]
Disregarding for the moment the formidable obscurity of the Court's
categories, how can it be said that Mrs. Frothingham's interests in
her suit were, as a consequence of her choice of a constitutional
claim, necessarily less intense than those, for example, of the
present appellants? I am quite unable to understand how, if a
taxpayer believes that a given public expenditure is
unconstitutional, and if he seeks to vindicate that belief in a
federal court, his interest in the suit can be said necessarily to
vary according to the constitutional provision under which he
states his claim.

															The absence of any connection between the Court's standard for
the determination of standing and its criteria for the satisfaction
of that standard is not merely a logical ellipsis. Instead, it
follows quite relentlessly from the fact that, despite the Court's
apparent belief, the plaintiffs in this and similar suits are
non-Hohfeldian, and it is very nearly impossible to measure
sensibly any differences in the intensity of their personal
interests in their suits. The Court has thus been compelled simply
to postulate situations in which such taxpayer plaintiffs will be
"deemed" to have the requisite "personal stake and interest." Ante at 392 U. S. 101 .
The logical inadequacies of the Court's criteria are thus a
reflection of the deficiencies of its entire position. These
deficiencies will, however, appear more plainly from an examination
of the Court's treatment of the Establishment Clause. Page 392 U. S. 125 Although the Court does not altogether explain its position, the
essence of its reasoning is evidently that a taxpayer's claim under
the Establishment Clause is "not merely one of ultra
vires, " but one which, instead, asserts "an abridgment of
individual religious liberty" and a "governmental infringement of
individual rights protected by the Constitution." Choper, The
Establishment Clause and Aid to Parochial Schools, 56 Calif.L.Rev.
260, 276. It must first be emphasized that this is apparently not
founded upon any "preferred" position for the First Amendment, or
upon any asserted unavailability of other plaintiffs. [ Footnote 3/12 ] The Court's position is,
instead, that, because of the Establishment Clause's historical
purposes, taxpayers retain rights under it quite different from
those held by them under other constitutional provisions.

															The difficulties with this position are several. First, we have
recently been reminded that the historical purposes of the
religious clauses of the First Amendment are significantly more
obscure and complex than this Court has heretofore acknowledged.
[ Footnote 3/13 ] Careful
students Page 392 U. S. 126 of the history of the Establishment Clause have found that

															"it is impossible to give a dogmatic interpretation of the First
Amendment, and to state with any accuracy the intention of the men
who framed it. [ Footnote
3/14 ]"

															Above all, the evidence seems clear that the First Amendment was
not intended simply to enact the terms of Madison's Memorial and
Remonstrance against Religious Assessments. [ Footnote 3/15 ] I do not suggest that history is without
relevance to these questions, or that the use of federal funds for
religious purposes was not a form of establishment that many in the
18th century would have found objectionable. I say simply that,
given the ultimate obscurity of the Establishment Clause's
historical purposes, it is inappropriate for this Court to draw
fundamental distinctions among the several constitutional commands
upon the supposed authority of isolated dicta extracted from the
clause's complex history. In particular, I have not found, and the
opinion of the Court has not adduced, historical evidence that
properly permits the Court to distinguish, as it has here, among
the Establishment Clause, the Tenth Amendment, and the Due Process
Clause of the Fifth Amendment as limitations upon Congress' taxing
and spending powers. [ Footnote
3/16 ] Page 392 U. S. 127 The Court's position is equally precarious if it is assumed that
its premise is that the Establishment Clause is, in some uncertain
fashion, a more "specific" limitation upon Congress' powers than
are the various other constitutional commands. It is obvious,
first, that only in some Pickwickian sense are any of the
provisions with which the Court is concerned "specific[ally]"
limitations upon spending, for they contain nothing that is
expressly directed at the expenditure of public funds. The
specificity to which the Court repeatedly refers must therefore
arise not from the provisions' language, but from something
implicit in their purposes. But this Court has often emphasized
that Congress' powers to spend are coterminous with the purposes
for which, and methods by which, it may act, and that the various
constitutional commands applicable to the central government,
including those implicit both in the Tenth Amendment and in the
General Welfare Clause, thus operate as limitations upon spending. See United States v. Butler, 297 U. S.
1 . And see, e.g., 75 U. S. Fenno, 8 Wall. 533, 75 U. S. 541 ; Loan Association v.
Topeka , 20 Wall. 655, 87 U. S. 664 ; Thompson v. Consolidated Gas Co., 300 U. S.
55 , 300 U. S. 80 ; Carmichael v. Southern Coal Co., 301 U.
S. 495 ; Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 6 . Compare Steward Machine Co. v. Davis, 301 U.
S. 548 ; Helvering v. Davis, 301 U.
S. 619 . I can attach no constitutional significance to
the various degrees of specificity with which these limitations
appear in the terms or history of the Constitution. If the Court
accepts the proposition, as I do, Page 392 U. S. 128 that the number and scope of public actions should be
restricted, there are, as I shall show, methods more appropriate,
and more nearly permanent, than the creation of an amorphous
category of constitutional provisions that the Court has deemed,
without adequate foundation, "specific limitations" upon Congress'
spending powers.

															Even if it is assumed that such distinctions may properly be
drawn, it does not follow that federal taxpayers hold any "personal
constitutional right" such that they may each contest the validity
under the Establishment Clause of all federal expenditures. The
difficulty, with which the Court never comes to grips, is that
taxpayers' suits under the Establishment Clause are not, in these
circumstances, meaningfully different from other public actions. If
this case involved a tax specifically designed for the support of
religion, as was the Virginia tax opposed by Madison in his
Memorial and Remonstrance, [ Footnote
3/17 ] I would agree that taxpayers have rights under the
religious clauses of the First Amendment that would permit them
standing to challenge the tax's validity in the federal courts. But
this is not such a case, and appellants challenge an expenditure,
not a tax. Where no such tax is involved, a taxpayer's complaint
can consist only of an allegation that public funds have been, or
shortly will be, expended for purposes inconsistent with the
Constitution. The taxpayer cannot ask the return of any portion of
his previous tax payments, cannot prevent the collection of any
existing tax debt, and cannot demand an adjudication of the
propriety of any particular level of taxation. His tax payments are
received for the general purposes of the United States, and are,
upon proper receipt, lost in the general revenues. Compare
Steward Machine Co. v. Davis, supra, at 301 U. S. 585 .
The interests he Page 392 U. S. 129 represents, and the rights he espouses, are, as they are in all
public actions, those held in common by all citizens. To describe
those rights and interests as personal, and to intimate that they
are in some unspecified fashion to be differentiated from those of
the general public, reduces constitutional standing to a word game
played by secret rules. [ Footnote
3/18 ] Page 392 U. S. 130 Apparently the Court, having successfully circumnavigated the
issue, has merely returned to the proposition from which it began.
A litigant, it seems, will have standing if he is "deemed" to have
the requisite interest, and "if you . . . have standing, then you
can be confident you are" suitably interested. Brown, Quis
Custodiet Ipsos Custodes? -- The School Prayer Cases, 1963
Sup.Ct.Rev. 1, 22. III It seems to me clear that public actions, whatever the
constitutional provisions on which they are premised, may involve
important hazards for the continued effectiveness of the federal
judiciary. Although I believe such actions to be within the
jurisdiction conferred upon the federal courts by Article III of
the Constitution, there surely can be little doubt that they strain
the judicial function and press to the limit judicial authority.
There is every reason to fear that unrestricted public actions
might well alter the allocation of authority among the three
branches of the Federal Government. It is not, I submit, enough to
say that the present members of the Court would not seize these
opportunities for abuse, for such actions would, even without
conscious abuse, go far toward the final transformation of this
Court into the Council of Revision which, despite Madison's
support, was rejected by the Constitutional Convention. [ Footnote 3/19 ] I do not doubt that there
must be "some effectual power in the government to restrain or
correct the infractions" [ Footnote
3/20 ] of Page 392 U. S. 131 the Constitution's several commands, but neither can I suppose
that such power resides only in the federal courts. We must as
judges recall that, as Mr. Justice Holmes wisely observed, the
other branches of the Government "are ultimate guardians of the
liberties and welfare of the people in quite as great a degree as
the courts." Missouri, Kansas & Texas R. Co. v. May, 194 U. S. 267 , 194 U. S. 270 .
The powers of the federal judiciary will be adequate for the great
burdens placed upon them only if they are employed prudently, with
recognition of the strengths as well as the hazards that go with
our kind of representative government.

															Presumably the Court recognizes at least certain of these
hazards, else it would not have troubled to impose limitations upon
the situations in which, and purposes for which, such suits may be
brought. Nonetheless, the limitations adopted by the Court are, as
I have endeavored to indicate, wholly untenable. This is the more
unfortunate because there is available a resolution of this problem
that entirely satisfies the demands of the principle of separation
of powers. This Court has previously held that individual litigants
have standing to represent the public interest, despite their lack
of economic or other personal interests, if Congress has
appropriately authorized such suits. See especially Oklahoma v.
Civil Service Comm'n, 330 U. S. 127 , 330 U. S.
137 -139. Compare Perkins v. Lukens Steel Co., 310 U. S. 113 , 310 U. S.
125 -127. I would adhere to that principle. [ Footnote 3/21 ] Any hazards to the Page 392 U. S. 132 proper allocation of authority among the three branches of the
Government would be substantially diminished if public actions had
been pertinently authorized by Congress and the President. I
appreciate that this Court does not ordinarily await the mandate of
other branches of the Government, but it seems to me that the
extraordinary character of public actions, and of the mischievous,
if not dangerous, consequences they involve for the proper
functioning of our constitutional system, and in particular of the
federal courts, makes such judicial forbearance the part of wisdom.
[ Footnote 3/22 ] It must be
emphasized Page 392 U. S. 133 that the implications of these questions of judicial policy are
of fundamental significance for the other branches of the Federal
Government.

															Such a rule could readily be applied to this case. Although
various efforts have been made in Congress to authorize public
actions to contest the validity of federal expenditures in aid of
religiously affiliated schools and other institutions, no such
authorization has yet been given. [ Footnote 3/23 ]

															This does not mean that we would, under such a rule, be enabled
to avoid our constitutional responsibilities, or that we would
confine to limbo the First Amendment or any other constitutional
command. The question here is not, despite the Court's
unarticulated premise, whether the religious clauses of the First
Amendment are hereafter to be enforced by the federal courts; the
issue is simply whether plaintiffs of an additional category,
heretofore excluded from those courts, are to be permitted to
maintain suits. The recent history of this Court is replete with
illustrations, including even one announced today ( supra at 392 U.S.
83 fn3/12|>n. 12), that questions involving the religious
clauses will not, if federal taxpayers are prevented from
contesting federal expenditures, be left "unacknowledged,
unresolved, and undecided."

															Accordingly, for the reasons contained in this opinion, I would
affirm the judgment of the District Court.

															[ Footnote 3/1 ] See, e.g., Davis, Standing to Challenge Governmental
Action, 39 Minn.L.Rev. 353; L. Jaffe, Judicial Control of
Administrative Action 483-495 (1965).

															[ Footnote 3/2 ]

															In particular, I agree, essentially for the reasons stated by
the Court, that we do not lack jurisdiction under 28 U.S.C. § 1253
to consider the judgment of the three-judge District Court.

															[ Footnote 3/3 ]

															I put aside for the moment the suggestion that a taxpayers
rights under the Establishment Clause are more "personal" than they
are under any other constitutional provision.

															[ Footnote 3/4 ] See generally Comment, Taxpayers' suits: A Survey and
summary, 69 Yale L.J. 895, 905-906.

															[ Footnote 3/5 ]

															The phrase is Professor Jaffe's, adopted, of course, from W.
Hohfeld, Fundamental Legal Conceptions (1923). I have here employed
the phrases "Hohfeldian" and "non-Hohfeldian" plaintiffs to mark
the distinction between the personal and proprietary interests of
the traditional plaintiff and the representative and public
interests of the plaintiff in a public action. I am aware that we
are confronted here by a spectrum of interests of varying
intensities, but the distinction is sufficiently accurate, and
convenient, to warrant its use at least for purposes of
discussion.

															[ Footnote 3/6 ] Cf. Associated Industries v. Ickes, 134 F.2d 694, 704; Reade v. Ewin, 205 F.2d 630, 632.

															[ Footnote 3/7 ]

															L. Jaffe, Judicial Control of Administrative Action 483
(1965).

															[ Footnote 3/8 ]

															I agree that implicit in this question is the belief that the
federal courts may decline to accept for adjudication cases or
questions that, although otherwise within the perimeter of their
constitutional jurisdiction, are appropriately thought to be
unsuitable at least for immediate judicial resolution. Compare
Ashwander v. Tennessee Valley Authority, 297 U.
S. 288 , 297 U. S.
345 -348 (concurring opinion); H. Wechsler, Principles,
Politics, and Fundamental Law 9-15 (1961), and Bickel, Foreword:
The Passive Virtues, The Supreme Court, 1960 Term, 75 Harv.L.Rev.
40, 45-47 (1961).

															[ Footnote 3/9 ]

															I must note at the outset that I cannot determine with any
certainty the Court's intentions with regard to this first
criterion. Its use of Doremus v. Board of Education, 342 U. S. 429 , as
an analogue perhaps suggests that it intends to exclude only those
cases in which there are virtually no public expenditures. See,
e.g., Howard v. City of Boulder, 132 Colo. 401, 290 P.2d 23.
On the other hand, the Court also emphasizes that the contested
programs may not be "essentially regulatory" programs, and that the
statute challenged here "involves a substantial expenditure of federal tax funds." Ante at 392 U. S. 102 , 392 U. S. 103 (emphasis added). Presumably this means that the Court's standing
doctrine also excludes any program in which the expenditures are
"insubstantial" or which cannot be characterized as a "spending"
program.

															[ Footnote 3/10 ]

															I am aware that the attack upon the second program would
presumably be premised, at least in large part, upon the Free
Exercise Clause, and that the Court does not today hold that that
clause is within its standing doctrine. I cannot, however, see any
meaningful distinction for these purposes, even under the Court's
reasoning, between the two religious clauses.

															[ Footnote 3/11 ]

															It should be emphasized that the Court finds it unnecessary to
examine the history of the Due Process Clause to determine whether
it was intended as a "specific limitation" upon Congress' spending
and taxing powers. Nor does the Court pause to examine the purposes
of the Tenth Amendment, another of the premises of the
constitutional claims in Frothingham. But see 22 U. S. Ogden, 9 Wheat. 1, 22 U. S. 199 ; Veazie Bank v.
Fenno , 8 Wall. 533, 75 U. S. 541 ; United States v. Butler, 297 U. S. 1 . And
compare Everson v Board of Education, 330 U. S.
1 , 330 U. S. 6 .

															[ Footnote 3/12 ]

															The Court does make one reference to the availability vel
non of other plaintiffs. It indicates that, where a federal
statute is directed at a specified class,

															"the proper party emphasis in the federal standing doctrine
would require that standing be limited to the taxpayers within the
affected class." Ante at 392 U. S. 104 ,
n. 25. Assuming arguendo the existence of such a federal
"best plaintiff" rule, it is difficult to see why this rule would
not altogether exclude taxpayers as plaintiffs under the
Establishment Clause, since there plainly may be litigants under
the Clause with the personal rights and interests of Hohfeldian
plaintiffs. See, e.g., Board of Education v. Allen, decided today, post, p. 392 U. S. 236 .

															[ Footnote 3/13 ] See, in particular, M. Howe, The Garden and the
Wilderness 1-31 (1965); C. Antieau, A. Downey & E. Roberts,
Freedom from Federal Establishment (1964). Not all members of the
Court have, of course, ignored the complexities of the clause's
history. See especially McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 238 (dissenting opinion of Reed, J.).

															[ Footnote 3/14 ]

															Antieau, Downey & Roberts, supra, at 142. See
also Howe, supra, at 10-12.

															[ Footnote 3/15 ] See, in particular, Antieau, Downey & Roberts, supra, at 126-128, 144-146, 207-208. And see 1
Annals of Cong. 730-731. It has elsewhere been observed, I think
properly, that

															"to treat [Madison's Remonstrance] as authoritatively
incorporated in the First Amendment is to take grotesque liberties
with the simple legislative process, and even more with the complex
and diffuse process of ratification of an Amendment by
three-fourths of the states."

															Brown, Quis Custodiet Ipsos Custodes? -- The School Prayer
Cases, 1963 Sup.Ct.Rev. 1, 8.

															[ Footnote 3/16 ]

															I will, of course, grant that claims under, for example, the
Tenth Amendment may present "generalized grievances about the
conduct of government or the allocation of power in the Federal
System." Ante at 392 U. S. 106 .
I will also grant that it would be well if such questions could be
avoided by the federal courts. Unfortunately, I cannot see how
these considerations are relevant under the Court's principal
criterion, which I understand to be merely whether any given
constitutional provision is, or is not, a limitation upon Congress'
spending powers. It is difficult to see what there is in the fact
that a constitutional provision is held to be such a limitation
that could sensibly give the Court "confidence" about the fashion
in which a given plaintiff will present a given issue.

															[ Footnote 3/17 ]

															The bill was intended to establish "a provision for teachers of
the Christian religion." It and the Memorial and Remonstrance are
reprinted in Everson v. Board of Education, supra, at 330 U. S.
63 -74.

															[ Footnote 3/18 ]

															I have equal difficulty with the argument that the religious
clauses of the First Amendment create a "personal constitutional
right," held by all citizens, such that any citizen may, under those clauses, contest the
constitutionality of federal expenditures. The essence of the
argument would presumably be that freedom from establishment is a
right that inheres in every citizen, thus, any citizen should be
permitted to challenge any measure that conceivably involves
establishment. Certain provisions of the Constitution, so the
argument would run, create the basic structure of our society and
of its government, and accordingly should be enforceable at the
demand of every individual. Unlike the position taken today by the
Court, such a doctrine of standing would at least be internally
consistent, but it would also threaten the proper functioning both
of the federal courts and of the principle of separation of powers.
The Establishment Clause is, after all, only one of many provisions
of the Constitution that might be characterized in this fashion.
Certain of these provisions, e.g., the Ninth and Tenth
Amendments, would provide the basis for cases that, absent a
standing question, could not readily be excluded from the federal
courts as involving political questions, or as otherwise unsuitable
for adjudication under the principles formulated for these purposes
by the Court. Compare United Public Workers v. Mitchell, 330 U. S. 75 , 330 U.S. 94 -96; Griswold v. Connecticut, 381 U. S. 479 .
Indeed, it might even be urged that the Ninth and Tenth Amendments,
since they are largely confirmatory of rights created elsewhere in
the Constitution, were intended to declare the standing of
individual citizens to contest the validity of governmental
activities. It may, of course, also be argued that these amendments
are merely "tub[s] for the whale," 1 W. Crosskey, Politics and the
Constitution 688 (1953); nut lacking such an argument, any doctrine
of standing premised upon the generality or relative importance of
a constitutional command would, I think, very substantially
increase the number of situations in which individual citizens
could present for adjudication "generalized grievances about the
conduct of government." I take it that the Court, apart from my
Brother DOUGLAS, and I are agreed that any such consequence would
be exceedingly undesirable.

															[ Footnote 3/19 ] See 1 I. Farrand, The Records of the Federal Convention
of 1787, at 21, 97-98, 108-110, 138-140 (1911); 2 Farrand, id. at 73-80.

															[ Footnote 3/20 ]

															The Federalist No. 80 (Hamilton).

															[ Footnote 3/21 ]

															My premise is, as I have suggested, that non-Hohfeldian
plaintiffs as such are not excluded by Article III from the
jurisdiction of the federal courts. The problem is therefore to
determine in what situations their suits should be permitted, and
not whether a "statute constitutionally could authorize a person
who shows no case or controversy to call on the courts. . . ." Scripps-Howard Radio v. Comm'n, 316 U. S.
4 , 316 U. S. 21 (dissenting opinion). I do not, of course, suggest that Congress'
power to authorize suits by specified classes of litigants is
without constitutional limitation. This Court has recognized a
panoply of restrictions upon the actions that may properly be
brought in federal courts, or reviewed by this Court after decision
in state courts. It is enough now to emphasize that I would not
abrogate these restrictions in situations in which Congress has
authorized a suit. The difficult case of Muskrat v. United
States, 219 U. S. 346 ,
does not require more. Whatever the other implications of that
case, it is enough to note that there, the United States, as
statutory defendant, evidently had "no interest adverse to the
claimants." Id. at 219 U. S.
361 .

															[ Footnote 3/22 ]

															I am aware that there is a second category of cases in which the
Court has entertained claims by non-Hohfeldian plaintiffs: suits
brought by state or local taxpayers in state courts to vindicate
federal constitutional claims. A certain anomaly may be thought to
have resulted from the Court's consideration of such cases while it
has refused similar suits brought by federal taxpayers in the
federal courts. This anomaly, if such it is, will presumably
continue even under the standing doctrine announced today, since we
are not told that the standing rules will hereafter be identical
for the two classes of taxpayers. Although these questions are not
now before the Court, I think it appropriate to note that one
possible solution would be to hold that standing to raise federal
questions is itself a federal question. See Freund, in E.
Cahn, Supreme Court and Supreme Law 35 (1954). This would demand
partial reconsideration of, for example, Doremus v. Board of
Education, 342 U. S. 429 . Cf. United States v. Raines, 362 U. S.
17 , 362 U. S. 23 , n.
3; Cramp v. Board of Public Instruction, 368 U.
S. 278 , 368 U. S. 282 ; Baker v. Carr, 369 U. S. 186 , 369 U. S.
204 .

															[ Footnote 3/23 ]

															This question was, however, extensively discussed in the course
of the debates upon the Elementary and Secondary Education Act of
1965, 79 Stat. 27. See, e.g., 111 Cong.Rec. 5973, 6132,
7316-7318.

Summary:
Here is a summary of the key points from the Flast v. Cohen case:

- The case centers around the question of whether federal taxpayers have standing to challenge federal spending programs on constitutional grounds.
- The Court ruled that a three-judge court was appropriately convened to hear the case, as the constitutional challenge would impact the entire regulatory scheme of the statute in question.
- The Court held that there is no absolute bar in Article III of the Constitution against federal taxpayer lawsuits challenging taxing and spending programs as unconstitutional.
- To have standing, taxpayers must demonstrate a personal stake in the outcome and establish a logical link between their taxpayer status and the legislative enactment being challenged.
- In this case, the taxpayer appellants had standing because they alleged that tax money was being spent in violation of the Establishment Clause of the First Amendment, a specific constitutional protection.
- The Court distinguished this case from Frothingham v. Mellon, where taxpayers lacked standing, by arguing that the taxpayers in this case had a direct stake in how their tax money was spent in relation to the Establishment Clause.

This case sets an important precedent for taxpayer standing in federal court, particularly in cases involving constitutional challenges to federal spending programs.