The more we look at the Democrats’ campaign to disqualify Republicans on the basis of Section 3 of the Fourteenth Amendment, known as the Disqualification Clause, the more clearly it comes into focus as a question of standing, or the capacity to sue. This is certainly thrown into sharp relief in an Arizona court ruling that there is “no private right of action to assert claims under the disqualification clause.”   

Law professor Joshua Blackman pointed the Sun to a 1869 decision from the Commonwealth of Virginia, In re Griffin. In that case, Chief Justice Chase held that a mere citizen could not trigger disqualification. “Legislation by Congress is necessary to give effect to such a decision.” What was true of Confederates, the professor explains, holds for Representative Cawthorn as well. This is work for Congress, not the crowd.

The way to look at standing is as a limitation on the power of the courts. They in turn have proved reluctant to confer standing when the matter at hand is broadly speaking political. We all might be affected by the affairs of the commonweal, but the Supreme Court has ruled that standing requires a showing of “injury in fact,” a far higher bar. The harm must also be “imminent,” just hurtling around the bend.  

In a 1922 case, Fairchild v. Hughes, that challenged the ratification process of the 19th Amendment on women’s suffrage, Justice Louis Brandeis opined that “every citizen” should expect that “the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit.” The logic holds for insurrection, too.

Faithfully following this logic, judges have dismissed suits fueled less by concrete injury than free floating outrage. These have included action by a Hawaii plaintiff challenging President Obama’s eligibility for the Oval Office. In Lujan v. Defenders of Wildlife, The Great Scalia wrote for the majority in dismissing “an abstract, self-contained, non-instrumental ‘right’ to have the Executive observe the procedures required by law.”

Locus standi, or standing, is not a mere technicality. The requirement that a citizen can only bring a case if they have suffered harm or injury is a crucial safeguard against enlisting courts in the service of mere displeasure — or politics. Along with the limitation of judicial jurisdiction via the “case and controversy” requirement, which limits courts to adjudicating actual disputes, it is a vital check on unbounded judicial power.

Lujan concerned a group of citizens suing to halt America’s funding of development programs in Egypt and Sri Lanka that they believed violated the Endangered Species Act of 1973. No matter the empathy of those citizens for the fauna of Africa and Asia, the court held that “the concrete injury requirement must remain.” It abides despite Democratic efforts to render Republicans politically extinct.