The Smallest Minority

On the other hand, if it were possible to challenge laws without any risk, it would likely increase judicial activism. Judges not bound by the restrictions of standing can rule on laws much more easily than those who are bound by them. Tocqueville talked about this in Democracy in America, volume 1, chapter 6:

The third characteristic of the judicial power is that it can act only when it is called upon, or when, in legal phrase, it has taken cognizance of an affair. This characteristic is less general than the other two; but, notwithstanding the exceptions, I think it may be regarded as essential. The judicial power is, by its nature, devoid of action; it must be put in motion in order to produce a result. When it is called upon to repress a crime, it punishes the criminal; when a wrong is to be redressed, it is ready to redress it; when an act requires interpretation, it is prepared to interpret it; but it does not pursue criminals, hunt out wrongs, or examine evidence of its own accord. A judicial functionary who should take the initiative and usurp the censureship of the laws would in some measure do violence to the passive nature of his authority.

I am inclined to believe this practice of the American courts to be at once most favorable to liberty and to public order. If the judge could attack the legislator only openly and directly, he would sometimes be afraid to oppose him; and at other times party spirit might encourage him to brave it at every turn. The laws would consequently be attacked when the power from which they emanated was weak, and obeyed when it was strong; that is to say, when it would be useful to respect them, they would often be contested; and when it would be easy to convert them into an instrument of oppression, they would be respected. But the American judge is brought into the political arena independently of his own will. He judges the law only because he is obliged to judge a case. The political question that he is called upon to resolve is connected with the interests of the parties, and he cannot refuse to decide it without a denial of justice.

But the American judge is brought into the political arena independently of his own will. He judges the law only because he is obliged to judge a case. The political question that he is called upon to resolve is connected with the interests of the parties, and he cannot refuse to decide it without a denial of justice.

Those statements would seem to me to be the argument _against_ the "standing" doctrine as it is applied. Every citizen has an interest that the constitution be obeyed by the executive and the legislature. Therefore any citizen should be able to challenge the "constitutionality" of _any_ law -- without putting his liberty at risk. If the judge says: "no, I will not hear you because you do not risk your liberty", he is denying "justice" even if he is holding up some "legal" doctrine.