Assertion of Constitutional Jus Tertii: A Substantive Approach, The

California Law Review
Volume 70 | Issue 6 Article 1
December 1982
Assertion of Constitutional Jus Tertii: A

Substantive Approach, The
Robert Allen Sedler
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Recommended Citation
Robert Allen Sedler, Assertion of Constitutional Jus Tertii: A Substantive Approach, The, 70 Calif. L. Rev. 1308 (1982).
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California Law Review
VOL. 70 DECEMBER 1982 No. 6
The Assertion of Constitutional Jus

Tertii: A Substantive Approach
Robert Allen Sedlert
Some years ago I undertook to investigate constitutional jus tertii,

a party's ability successfully to challenge a law or government action
on the ground that it violated third parties' constitutional rights.' At
that time, the Supreme Court purported to prohibit the assertion ofjus
tertii, with very limited exceptions.' My research disclosed, however,
that in a number of cases parties had in fact been able to prevail by
claiming that the challenged law or government action violated the
rights of others not before the Court. I therefore concluded that at least
in practice the Court sometimes allowed the assertion of constitutional
jus tertu.
My intent in beginning this Article was to update my earlier work.
My impression was that the results of the Court's decisions since that
time confirmed my earlier conclusions. The Court has explicitly
promulgated as doctrine the factor approach outlined in my earlier ar-
ticle: a party's ability to assert constitutional jus tertii depends on (1)
the nature of the relationship between the litigant and the third party
and (2) the practicability of the third party's assertion of his own
rights?
A review of the cases, however, and particularly of the most recent
t Professor of Law, Wayne State University. A.B. 1956, J.D. 1959, University of
Pittsburgh.
1. Sedler, Standing to Assert ConstitutionalJus Tertit in the Supreme Courl, 71 YALE L.J.
599 (1962) [hereinafter cited as Jus Tertim].
2. See generaly United States v. Raines, 362 U.S. 17, 21-23 (1960). As the Court long ago
stated: "It has been repeatedly held that one who would strike down a state statute as violative of
the federal Constitution must show that he is within the class of persons with respect to whom the
act is unconstitutional and that the alleged unconstitutional feature injures him." Heald v. Dis-
trict of Columbia, 259 U.S. 114, 123 (1922).
3. See Singleton v. Wulff, 428 U.S. 106, 114-16 (1976).
1308
1982] CONSTITUTIONAL JUS TERTII 1309
ones, led me to conclude that the Court's decisions are not consistent
with the general prohibition against the assertion of jus tertii and the
factor approach to the prohibition's exceptions that the Court purports
to accept. In fact, the Court has allowed litigants to assert third-party
rights both where the relationship between the litigant and the third
party was not a close one under the standards developed in prior cases,4
and where the third parties' assertion of their own rights in an in-
dependent action was not at all impracticable.' Given this apparent
inconsistency, I think it appropriate to consider anew the entire ques-
tion of constitutional jus tertii.
My reconsideration has led me to a very different position. I now
believe that as a general proposition, a party should be able to prevail
in constitutional litigation only if he can show some violation of his
own rights. I have also concluded that the Court has in fact acted con-
sistently with this general rule.
The first Part of this Article begins by tracing the development of
the Supreme Court's jus tertii doctrine. It then shows that the Court's
approach is analytically unsound because it considers the question of
constitutional jus tertii in terms of "standing," and that this unsound-
ness contributes to the inconsistencies in current doctrine. Part I con-
cludes that parties who are not themselves injured by a given rule or
action should not be able to challenge it by asserting third parties'
rights, and that the Court's approach has therefore been improper.
Part II of the Article argues that the results reached by the
Supreme Court in the cases in which it has viewed jus tertii in terms of
standing are consistent with my present thesis. Part II demonstrates
that in the cases in which the assertion of constitutional jus tertii was
permitted, the application of the challenged law or government action
to the party asserting jus tertii was itself unconstitutional or otherwise
invalid. Conversely, in the cases in which the assertion ofjus tertii was
not permitted, any possible violation of third party rights was irrelevant
to a determination of the constitutionality of the law as applied to the
litigant. Finally, Part III of the Article shows why it is necessary to
4. See, e.g., Craig v. Boren, 429 U.S. 190 (1976) (vendor of beer held entitled to assert right
of male minor vendees).
5. See, e.g., Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) (landlord allowed to assert
rights of tenants).
6. This reversal may in part be due to the fact that in my earlier article I did not take a
normative approach to the subject. In other words, I was not trying to develop a consistent analyt-
ical framework within which it could be determined whether the assertion of constitutional jus
tertii should be recognized. Rather, I took an "empirical" approach, analyzing the results that the
Court reached inorder to determine whether the Court recognized a legal right to assert constitu-
tional jus tertii; and if so, under what circumstances it would be permitted.
1310 CALIFORNIA LAW REVIEW [Vol. 70:1308
reconcile results with doctrine and to remove the assertion of jus tertii
from constitutional litigation.
I
THE ANALYTICAL FRAMEWORK
A. The Supreme Court'sArticulatedJus Terti Doctrine
I GeneralPrincples
This Subsection defines the basic principles and distinctions un-
derlying the Supreme Court's jus tertii doctrine. The cases in which
questions of the assertion of jus tertii have arisen fall into two catego-
ries. In the first type of case, parties want to assert that a given law,
although constitutional as applied to their own conduct, would be un-
constitutional as applied to the conduct of third parties coming within
its scope. Cases in this category are facial challenges, in which parties
attack a law not because of a specific application of it to their own
conduct, but because its terms include constitutionally unreachable
conduct of third parties. An example would be a case in which the
director of a contraceptive clinic sues to invalidate a state law prohibit-
ing the use, but not the distribution, of contraceptives: the direc tor her-
self is not disadvantaged by the operation of the law, but would-be
users of her clinic are. I will hereafter refer to this kind of challenge as
a Category I case.
In the second type of case, litigants want to base claims or defenses
either wholly or partly on the ground that denial of the claim, or rejec-
tion of the defense, will violate third parties' rights. The appropriate
example here is a doctor who has been prosecuted under a state law
prohibiting the performance of abortions: the doctor will argue that
enforcement of the law against her implicates not only her rights, but
the rights of her would-be patients as well. These will be referred to as
Category II cases.
The Supreme Court has treated these two kinds of cases differ-
ently. In Category I cases, in which the litigant before the Court con-
cedes that the challenged law is constitutional as to him, the Court has
found the substance of the challenged law important, and has distin-
guished between ordinary criminal and regulatory laws and laws that
"by their terms restrict expression." 7 First amendment laws are singled
out for special treatment because a "chilling effect upon the exercise"of
First Amendment rights" may result from prosecution under an invalid
statute.' Where the challenged law by its terms restricted expression,
7. Jus Terlil, supra note 1, at 612-26.

8. Lewis v. New Orleans II, 415 U.S. 130, 133-34 (1974); Broadrick v. Oklahoma, 413 U.S.
601, 611-12 (1973).
the Court would determine the validity of the law "on its face" regard-
less of the law's constitutionality as to the party actually before the
Court. 9
Where the challenged law did not on its face restrict expression,
the Court has decided whether a litigant could challenge its constitu-
tionality as applied to a third party by looking to severability. A sever-
able law is one that may be constitutionally applied to at least some
persons, even if it is unconstitutional as to others. If a party before the
Court could show that the challenged law was in fact nonseverable-
that is, incapable of differential application-he could include in his
challenge the contention that the law violated third parties' constitu-
tional rights.' 0 For our purposes, it is significant that in both of these
Category I situations, even if the party before the Court conceded that
the challenged law was constitutional as to him, he could prevail by
asserting third parties' constitutional rights.
In the more common Category II cases, in which a party asserts
that the rights of third parties would be violated by application of the
challenged law to him, the Court has stated that litigants generally will
not be allowed to strengthen their claims by asserting third-party rights
in addition to or in lieu of their own. In developing exceptions to that
rule, the Court has taken four factors into account: (1) the interest of
the party before the court; (2) the nature of the right asserted; (3) the
relationship between the litigant and the third party; and (4) the practi-
cability of the third party's assertion of his own rights in an independ-
ent action."I
The two most important factors were the relationship between the
litigant and the third party, and the third party's ability to bring suit to
assert his own rights.' 2 The Court purported to require a close relation-
ship, such as a professional or associational tie, between the party in
court and the third party.' 3 Furthermore, the Court claimed that it
9. Jus Teriji, supra note 1, at 613.

10. Id at 608.
11. Id. at 626-27.
12. The first factor, the challenger's own interest, was a threshhold requirement: the party
before the court had to be either a proper plaintiff or a defendant, in order to satisfy the article III
.case or controversy" requirement. Once this factor was established, consideration of the other
factors was warranted.
In retrospect, the second factor, the nature of the right asserted, was not very significant. I
included it as a factor in my earlier article only because the Court had been refusing to allow the
assertion of property or contractual rights of third parties even when it was extending a good deal
of substantive protection to those rights. See Jus Tertil, supra note I, at 641.
13. See id. at 647. In Barrows v. Jackson, 346 U.S. 249 (1953), the Court allowed a white
seller of land against whom a racially restrictive covenant was sought to be enforced to assert the
equal protection rights of the black buyers. I explained the relationship as being something more
than that of seller and buyer, namely that of a person who acted to protect the rights of a minority
and the minority itself. Jus Terlii, supra note 1, at 631. The Court subsequently accepted my
1312 CALIFORNVIA LAW REVIEW [Vol. 70:1308
would not allow litigants to assert third-party rights unless it is imprac-

ticable for the third parties to assert their own rights in a separate ac-
tion.'4 The Court stated that the interaction of these factors may create
exceptions to the general rule against allowing litigants to assert third
parties' rights.' 5
2. Recent Cases and the FactorDoctrine

With these general principles in mind, I proceed to a discussion of
Singleton v. Wul' 6 and Craig v. Boren,17 two cases that typify the
Supreme Court's present use of the factor doctrine. The results of these
cases show that in Category II cases, the Court does not generally pro-
hibit assertions of third parties' rights, which is contrary to the pur-
ported rule. In short, these cases show that the Supreme Court does not
use the factor doctrine it has articulated.
Both Singleton and Craig were cases of the second category de-
scribed above: litigants claimed that applying a law to them would in-
fringe third parties' constitutional rights.' 8 Singleton, decided first,' 9
was a suit brought by physicians which challenged the constitutionality
of a state's refusal to pay for nonmedically indicated abortions. The
plaintiffs, both of whom had performed such abortions, alleged that the
state's action violated their constitutional right to practice medicine, be-
cause it interfered with the physician-patient relationship and pre-
vented them from practicing medicine in the way they considered most
beneficial to their patients. 20 The physicians tried to strengthen their
claim by alleging that the refusal to fund the abortions violated their
patients' constitutional rights as well.2 ' A plurality of the Court, in an
explanation of the relationship involved in Barrows. See Eisenstadt v. Baird, 405 U.S. 438, 445
(1972).
14. Jus Tertii, supra note 1, at 647-48. Where impracticability of assertion had not been
shown, the Court allowed standing to assert jus tertii only if the challenged action impaired "high
value" rights, and the litigant's relationship to the third party was "particularly significant." Id. at
648.
15. The Court consistently reiterated the general rule. See, e.g., Duke Power Co. v. Carolina
Envtl. Study Group, 438 U.S. 59, 80 (1978).
16. 428 U.S. 106 (1976).
17. 429 U.S. 190 (1976).
18. Cases in this category demonstrate one instance of the Court's inconsistency with the
rule it purports to follow. I do not deal in this Section with the facial challenge cases that fall into
the first category; the rules in that area, and their proper application, are dealt with elsewhere in
the Article. See infra notes 45-63 and accompanying text.
19. Singleton was decided during the 1975 Term, Craig during the 1976 Term.
20. 428 U.S. at 109-110. As to the substantive rights of the physicians in this case, see infra
notes 80-82 and accompanying text.
21. 428 U.S. at 110. The district court had dismissed the case for lack of standing. The
Eighth Circuit held that the physicians had standing both in their own right and to assert the
rights of their patients, and invalidated the restriction on Medicaid benefits for abortions as viola-
tive of the patient's rights. Id at 111-12. The Supreme Court remanded the case with directions
opinion by Justice Blackmun, held that the physicians could assert their
patients' rights as well as their own.2 2
Justice Blackmun first discussed the reasons for a general prohibi-
tion against the assertion of third-party rights. He said that unneces-
sary adjudication of such rights is undesirable because (1) the third
parties might not wish to assert their rights or might be able to enjoy
them regardless of the outcome of the adjudication; and (2) the third
parties, who usually would be the best proponents of their own rights if
they did choose to assert them, would be bound by an unfavorable de-
cision under principles of stare decisis. But Justice Blackmun then de-
parted from the general rule and held that in this case, an exception to
the general rule was warranted because there was a close relationship
between the physicians and their patients, and because it would be im-
practicable for patients who needed abortions to assert their own rights.
Justice Blackmun's reiteration of the general rule prohibiting assertion
ofjus tertii in the context of a holding allowing an exception to the rule,
as well as the fact that his analysis did not command a majority of the
Court, indicated that the Court's jus tertii doctrine was in flux.
In Craigv. Boren, 23 decided six months after Singleton, the plain-
tiffs challenged an Oklahoma law that prohibited the sale of beer to
males under age 21 and females under age 18. The only plaintiff before
the Supreme Court was a bartender licensed to sell beer.2 4 The Court
saw the issue as whether "the licensed vendor of 3.2 percent beer, who
has a live controversy against enforcement of the statute, may rely
upon the equal protection objections of males 18-20 years of age to
that the district court determine the constitutionality of the restriction in the first instance. Id at
119-21. The Supreme Court subsequently held in another case that the state's refusal to provide
payment for nontherapeutic abortions was not unconstitutional. Maher v. Roe, 432 U.S. 464
(1977). See also Harris v. McRae, 448 U.S. 297 (1980).
22. Justice Stevens, concurring, took the position that because the physicians had standing to
sue and had alleged a violation of their own rights, the Court could also consider arguments
"based on the effect of the statute on the constitutional rights of their patients." 428 U.S. at 121-22
(Stevens, J., concurring in part). Four dissenters, in an opinion by Justice Powell, maintained that
the physicians should not be able to assert their patients' rights. Id. at 126-31 (Powell, J., dissent-
ing).
Justice Powell contended in dissent that in the prior cases where the assertion ofjus tertii had
been permitted, the Court had not emphasized the nature of the relationship between the litigant
and the third party, and that in any event, the challenged action in those cases directly interfered
with the relationship itself, which was not so here. Id. at 128 (Powell, J., dissenting). Justice
Blackmun insisted that the prior cases did not go off on this point. Id. at 118 n.7. Justice Powell
also contended, in sharp disagreement with Justice Blackmun, that in the prior cases a suit by the
third party was "in all practicable terms impossible." Id. at 126 (Powell, J., dissenting). Justice
Blackmun argued that the test was one of impracticability, not impossibility. Id. at 116 n.6.
23. 429 U.S. 190 (1976).
24. Originally, a male under age 21 had also been a plaintiff. By the time the case reached
the Supreme Court, he had turned 21, so the case was moot as to him. Id. at 192.
establish her claim of unconstitutionality of the age-sex differential. 25

It held that she could, relating the seller's position as a vendor to her
ability to assert her potential customers' rights. 26 Because the
Oklahoma law explicitly regulated the sale rather than the consump-
tion of 3.2 percent beer, and because the seller's failure to prevail
would have materially impaired the underage males' ability to obtain
3.2 percent beer, the Court said that the seller was the "obvious claim-
ant" to challenge the constitutionality of the law.27
Craig v. Boren also departs from the Court's prior doctrine. It was
the first case in which the Court explicitly allowed one party to a purely
commercial relationship to assert the constitutional rights of the other
party to the relationship. It was also the first case in which the Court
explicitly allowed a litigant to assert third-party rights even though it
would not have been impracticable for the affected males to assert their
own rights. Craig suggests that a party to almost any actual or poten-
tial relationship may assert the other party's constitutional rights to
challenge injurious restrictions upon the relationship. The case indi-
cates that the factor doctrine was no longer being strictly applied, as the
need for the two most important factors once required for the assertion
of jus tertii was being relaxed greatly.
The results in Singleton and Craig show that it is now unrealistic
to find a general prohibition against the assertion of jus tertii in Cate-
gory II cases. There is, in fact, a tension between the general rule
against assertion ofjus tertii and the results in these cases. This tension
is important, even though it is only manifest in Category II cases, be-
cause it indicates that the Court's jus tertii doctrine cannot satisfactorily
25. Id. at 192-93.

26. Justice Brennan, writing for the. Court, stated:
As a vendor with standing to challenge the lawfulness of§§ 241 and 245, appellant Whit-
ener is entitled to assert those concomitant rights of third parties that would be "diluted
or adversely affected" should her constitutional challenge fail and the statutes remain in
force. Otherwise, the threatened imposition of governmental sanctions might deter ap-
pellant Whitener and other similarly situated vendors from selling 3.2 percent beer to
young males, thereby ensuring that enforcement of the challenged restriction against the
[vendor] would result indirectly in the violation of third parties' rights.' Accordingly,
vendors and those in like positions have been uniformly permitted to resist efforts at
restricting their operations by acting as advocates for the rights of third parties who seek
access to their market or function.
id. at 195 (citations omitted).
27. Id. at 196-97. Justice Brennan drew an analogy to Eisenstadt v. Baird, 405 U.S. 438
(1972), in which a distributor of contraceptives had standing to assert the unmarried persons'
rights to receive contraceptives. See infra notes 73-79 and accompanying text.
In dissent, Chief Justice Burger emphasized that there was no barrier whatsoever to the third
parties' assertion of their own constitutional rights, as evidenced in Craigby the presence of an 18
to 20 year old male as plaintiff, so that "[there is thus no danger of interminable dilution of those
rights if appellant Whitener is not permitted to litigate them here." 429 U.S. at 216 (Burger, C.J.,
dissenting).
1982] CONSTITUTIONAL JUS TERT15 1315
answer all jus tertii questions. In the next Section, I will explain what I
think is the reason for the present doctrine's shortcomings.
B. The Fallacy of "Standing" to Assert ConstitutionalJus Tertii

The Supreme Court has couched all jus tertii questions in terms of
standing. In both Category I and Category II cases, it has asked
whether the litigant has "standing" to assert the rights of third parties
not before the court. 8 My quarrel with the Supreme Court is that this
is analytically unsound; it is not possible to decide all jus tertii ques-
tions by referring only to standing doctrine. 9 Standing rules help a
court determine whether the party before it is the proper person to
challenge a particular law or government action." A litigant's desire to
include in his claim or defense issues relating to third parties' rights
presents different analytical questions, relating to the issues that a party
who is properly in court may raise in order to prevail on the merits."
A more detailed look makes this clear.
The doctrines of standing were developed to answer the question,
"Can this particular plaintiff challenge this particular law?" If the an-
swer is yes, the court may proceed to the merits of the plaintiff's claim.
If the answer is no, the case will be dismissed. Several features of this
inquiry should be noted here. First, standing rules are designed to
make judicial review available only to those parties who can demon-
strate a clear causal connection between an injury to their rights and
the validity of the challenged law. 2 Second, the rules exist because
only a plaintiff who can show such a causally-connected injury presents
a case or controversy within the constitutional jurisdiction of the fed-
28. See, e.g. Singleton v. Wulff, 428 U.S. 106, 112-13 (1976) (Category II); United States v.
Raines, 362 U.S. 17, 25-26 (1960) (Category I).
29. But see L. TRIBE, AMERICAN CONSTITUTIONAL LAW 102-14 (1978), relating the assertion
ofjus tertii to standing to sue.
30. Flast v. Cohen, 392 U.S. 83 (1968); Duke Power Co. v. Carolina Envtl. Study Group, 438
U.S. 59 (1978). My own view questions both the soundness of standing as a limitation on judicial
review, Sedler, Standing,Justiciability,andAll That: A BehavioralAnalysis,25 VAND. L. REv. 479,
511-12 (1972) [hereinafter cited as Standing,Justiciabilit andAll That], and the correctness of the
Supreme Court's current standing doctrine, Sedler, Standing and the Burger Court: An Analysis
andSome ProposalsforLegislativeReform, 30 RUTGERS L. Rnv. 863, 873-76 (1977) [hereinafter
cited as Standingand the Burger Court].
31. The only possible relationship between standing and jus tertii is that the Supreme Court
could allow'would-be litigants who are unable on their own to assert an interest sufficient to give
them standing, to assert the requisite interest by claiming the rights of third parties. As I later
demonstrate, however, the Supreme Court has never endorsed such a blanket proposition. See
infra note 35 and accompanying text.
32. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 218-19 (1974);
Warth v. Seldin, 422 U.S. 490, 498-99 (1975). The test for standing to seek review of administra-
tive action is generally the same as the test for standing to sue in constitutional litigation. See
Standing, JusticiabiliyandAll That, supra note 30, at 489.
eral courts. 33 Third, the rules of standing necessarily distinguish be-

tween plaintiffs and defendants. Defendants have no standing
problems. The required injury caused to the party by the challenged
law necessarily exists.
The operation of jus tertii doctrine is quite different. The crucial
question here is not "Is this the proper party to challenge this law?"
Rather, it is "May this party strengthen his claim on the merits of the
case by raising third parties' rights?" If the answer is yes, the party,
plaintiff or defendant, has a better chance of prevailing on the merits.
If the answer is no, the result depends upon which category of case it is.
If the party is a plaintiff or defendant in a Category II case who seeks
simply to augment his claim, he will remain in court but will have to
rely on his own rights. If, on the other hand, the party is a plaintiff in a
Category I action who does not contest that the law he challenges is
constitutional as to him, refusing to allow him to assert third-party
claims must result in dismissing his case because he has no rights of his
own to assert. Finally, if the party is a Category I defendant asserting
nonseverability of a law's application, refusing to allow jus tertii asser-
tion means his defense will fail.
Several differences beyond the basic jus tertii inquiry and the ef-
fects of the answers to it are apparent as well. First, courts do not an-
swer the crucial jus tertii question by examining the relationship
between the party and the challenged law, as they would do in standing
cases. Rather, they look to severability and substance in Category I
cases and to the factors the Supreme Court has deemed important in
Category II cases. Second, the constitutional rationale for jus tertii
rules differs from the rationale for standing doctrines. The general
principle in the jus tertii area is that because constitutional rights are
individual, litigants must assert their own rights. Standing rules, as ex-
plained above, exist to ensure that litigants present justiciable cases or
controversies. Finally, jus tertii doctrine does not differentiate between
plaintiffs and defendants: the question asked and the way of arriving at
the answer are the same regardless of whether the third-party claims
are raised from an offensive or a defensive posture.
These are substantial differences. The Supreme Court's present
jus tertii doctrine, with its continued emphasis on standing, is based on
a failure to look systematically at the similarities and differences be-
tween standing and jus tertii doctrines. That failure, in turn, has led to
the vagueness and confusion which surround jus tertii questions. The
33. The Court has held that "injury in fact" is required for standing purposes by article III's
case or controversy provision. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S.
208, 218 (1974); see also Standing and the Burger Court, supra note 30, at 874-76.
1982] CONSTITUTIONAL JUS TERTI1 1317
rest of this Section attempts to explain the specific source of the

problem.
The confusion in current doctrine stems from the fact that despite
the many differences between them, standing and jus tertii rules some-
times overlap. Where this occurs, the doctrines look similar. The over-
lap occurs when plaintiffs seek to assert others' rights in Category I
cases. In these situations, like answers to standing and jus tertii ques-
tions will yield like results, creating a seeming similarity between
standing and jus tertii. The similarity, however, is only illusory.
When plaintiffs in Category I cases want to assert only rights of
third parties, they may be dismissed for lack of standing if they cannot
show that there is a causal connection between the injury to their rights
and the challenged law. Their cases may also be dismissed according
to jus tertii rules if the law is found both constitutional as to the plain-
tiff and severable, so that enforcing the law against the plaintiff will not
implicate either his or third parties' rights. Thus, negative answers,
either to the standing or to the jus tertii questions, will have the same
result-dismissal of the suit. The criteria for answering the question,
however, are quite different.
Similarly, in Category I plaintiffs' cases, affirmative answers to
both standing and jus tertii questions will also yield like results. If the
court looks to standing and decides that the plaintiff has demonstrated
the proper relationship between the injury to himself and the chal-
lenged law, the case proceeds to a determination on the merits. If the
court instead asks the quite different jus tertii question, and decides
that because the law is nonseverable the plaintiff can assert third par-
ties' rights, the plaintiff can similarly remain in court for a determina-
tion on the merits.
An example will make the apparent similarity clear. Assume the
existence of a state law that is challenged as an unconstitutional regula-
tion of interstate commerce. A local merchant who concedes that the
law is constitutional as applied to her brings suit seeking to enjoin en-
forcement of the law on the ground that it is nonseverable and violates
the rights of interstate merchants.
The court will first ask whether she has standing to challenge the
law. If the answer is no, because plaintiff has not demonstrated an in-
jury to herself resulting from the challenged law, her claim will be dis-
missed for lack of standing. If the court instead had asked whether the
uninjured plaintiff could assert the rights of the interstate merchants,
and had decided that she could not because the law was severable and
was constitutional as to her, the- result would be the same. Because
plaintiff had no rights of her own to assert, her case would be dismissed
if she could not assert the rights of others.
1318 CALIFORNIA L,4 REVIEW [Vol. 70:1308
Observe further that in this situation, affirmative answers to both
standing and jus tertii questions would have yielded like results. That
is, if the court answers yes to either question, finding either the required
injury or a nonseverable law, the plaintiff can remain in court to assert
her claim on the merits.
This, I think, is the source of the confusion. In Category I plain-
tiffs' cases, standing and jus tertii may appear the same because affirm-
ative and negative answers in both areas produce the same result-
proceeding to the merits (affirmative), or dismissal (negative). But even
if the results are the same, the questions asked and the ways the an-
swers are arrived at remain different.
The impossibility of expecting standing doctrine to answer all jus
tertii questions becomes clear when we look at defendants' Category I
claims. Assume that a defendant seeks to avoid enforcement of a law
providing that all films be subjected to censorship before they are
shown. The defendant shows obscene films. These are not protected
by the first amendment, so the defendant cannot claim that the law is
invalid as to her. She does claim that the law on its face restricts ex-
pression and that it should be invalidated because it violates legitimate
filmmakers' rights.
In this case, asking standing questions gets us nowhere. Because
the party is a defendant, her standing to make the challenge is incon-
trovertible. The court will have to decide whether assertion of the par-
ticular claim is permissible according to jus tertii criteria, not standing
rules. Furthermore, answering yes to the jus tertii question does not
here have the same effect as answering yes to the standing question.
An affirmative decision as to jus tertii would only mean that the de-
fendant would be more likely to prevail on the merits than she would
be without jus tertii. Standing rules, by contrast, do not speak to ques-
tions involving the merits.
Standing doctrine is similarly useless in Category II cases. There,
plaintiffs and defendants assert an injury to themselves, clearly fulfil-
ling standing requirements. They seek to assert others' rights as well,
however, in addition to or in lieu of their own, and to prevail on that
basis. In Category II cases, similar answers to standing and jus tertii
questions will not have the same effect. As in the Category I defend-
ant's case, because the standing question is always answered in the af-
firmative, the party is properly in court. This is true even if the jus
tertii question is answered in the negative, because the parties are also
asserting injury to their own rights. The only effect of answering the
jus tertii question will be deciding whether the litigant can strengthen
his claim on the merits and possibly prevail by asserting third parties'
rights. There is no relation, however, between the question of whether
19821 CONSTITUTIONAL JUS TERTI1 1319
a party can appear in court and that of how strong his claim is once he
is there.34
This explanation shows that expressing jus tertii rules in standing
terms usually results in equating two dissimilar questions. Moreover, it
muddles attempts to separate factors relating to a would-be plaintiff's
ability to get into court from factors relating to the issues a party once
in court could raise. The result is that jus tertii has been seen as a
procedural, not a substantive, doctrine. The principle has not been that
any litigant challenging a law or government action could prevail only
by showing that its operation violated his own rights. Rather, it has
been that ordinarily litigants did not have standing to assert third-par- 35
ties' rights. Because this limitation was a prudential rule of practice
rather than a substantive limitation, exceptions could be developed
which would permit "standing to assert third-party rights" in certain
cases. This is exactly what has happened; the Supreme Court has de- 36
veloped a set of rules relating to "constitutional jus tertii standing."
Because those rules were born of confusion, they serve only to be-
get further confusion. The attempt to answer jus tertii questions by
looking to prudential procedural limitations, rather than to substantive
constraints, may explain the inconsistency between the Supreme
Court's decisions and the limiting doctrine that the Court purports to
apply. The next Section argues that the Court should discard the pro-
cedural approach and make the substantive determination that litigants
may never prevail by asserting others' rights.
34. The analytical unsoundness of approaching the assertion ofjus tertii in terms of "stand-
ing" is further demonstrated by the fact that using standing terms in the jus tertii context solves
nothing. That is, "standing" considerations would work equally toward permitting the assertion
ofjus tertii and toward denying it. On the one hand, if the gravamen of standing is to ensure that
a party always has an interest in challenging the validity of a particular law or governmental
action, arguably there will always be "standing" to assert third parties' rights because any litigant
who will prevail if the challenge is successful always has an interest in making any claims that will
help him win. By the same token, it is equally arguable that there should never be "standing" to
assert third parties' rights, because the litigant as to whom the application of the challenged law or
government action is constitutional has no interest in claiming that it is unconstitutional as ap-
plied to third parties.
This tautology surfaces in Barrows v. Jackson, 346 U.S. 249 (1953), where the Court noted
that the basis of the general rule against the assertion of jus tertii was that "a person cannot
challenge the constitutionality of a statute unless he shows that he himself is injured by its opera-
tion." Id. at 255. In the next sentence, however, the Court added that "[t]his principle has no
application in the instant case in which respondent has been sued for damages totaling $11,600,
and in which a judgment against respondent would constitute a direct, pocketbook injury to her."
Id. at 255-56. The plaintiff in Barrows was concededly injured; the Court failed to see that stand-
ing doctrine could not answer any of the jus tertii questions that followed a finding of injury in
fact.
35. Barrows v. Jackson, 346 U.S. 249, 257 (1953).
36. The Supreme Court's application of the rules in practice have caused these exceptions to
swallow up the general rule.
1320 CALIFORiVIA LAW REVIEW [Vol. 70:1308
C. The Absence of Justfcationfor the Assertion of ConstitutionalJus

Tertil" The Inadequacy of the FactorDoctrine
Once the analytically unsound concept of "standing to assert con-
stitutional jus tertii" is set aside, the question becomes whether a liti-
gant should ever be able to take advantage of the fact that a law or
government action may violate some third parties' rights and prevail on
that basis. Should a plaintiff whose own business is entirely intrastate
be allowed to win a challenge to a law on the ground that it unconstitu-
tionally affects interstate commerce? Should a defendant whose own
claim would not permit him to avoid sanction be able to avoid enforce-
ment of a statute by claiming that it would be invalid as applied to
others? I submit that both answers are no: to allow litigants to prevail
in constitutional litigation by asserting others' rights is theoretically
unjustifiable.37
In Category I cases, allowing parties to use others' rights as swords
or as shields flies in the face of our knowledge that laws affect different
individuals differently: a law or government action may be invalid as
applied to some persons or activities, but valid as to others. 38 Because
of this, a court's resolution of a constitutional challenge is properly lim-
ited to determining if and how the challenged law or government ac-
tion violates the rights of the party who is before the court. If it does
not, the party should not be entitled to escape the challenged law's ef-
fect. If a state law violates the commerce clause as applied to an inter-
state carrier, for example, but is constitutional as applied to a local
merchant, the merchant should not be able successfully to challenge the
law.
The same rule should hold true in Category II cases. Even if the
party before the court can demonstrate that he is damaged by the oper-
ation of the law or action he challenges, he should not be able to
strengthen his claim or his defense by asserting other claims that third
parties might raise. Again, the scope of the challenge should be limited
to the rights of the party before the court. The seller in Craig v. Bo-
37. But see Note, Standing to Raise ConstitutionalJus Terti, 88 HARV. L. REv. 423 (1974).
38. That principle is illustrated clearly in United States v. Raines, 362 U.S. 17 (1960), where
the Supreme Court held that an act of Congress prohibiting interference with the right to vote on
racial grounds was "clearly constitutional" under the fifteenth amendment as applied to the ac-
tions of governmental officials, while the lower court had held that the same act would be uncon-
stitutional as beyond Congress' fifteenth amendment power when applied to the actions of private
persons. See also Clements v. Fashing, 102 S. Ct. 2836, 2845 n.3 (1982), in which four Justices
noted that a justice of the peace challenging a state law prohibiting justices of the peace from
running for the legislature during their term of office could not argue that the law "may not be
applied to restrict a Justice of the Peace's candidacy for the legislature because the State's interests
in restricting candidacy by a different class of officeholders are insufficient to survive constitu-
tional scrutiny." Because the law was constitutional as applied to bar the justice of the peace's
candidacy, he was not entitled to relief against its enforcement.
ren,39 for example, should have been able to assert only the claims
stemming from the Oklahoma law's adverse impact on her right to do
business, and not any different claims that might be made by 18 to 20
year old males.
The Supreme Court has set forth the rule that a court should hear
only the claims of parties actually before it, but it has diluted the rule
with exceptions so that the exceptions overrun the rule. Thus, the
Supreme Court's present doctrine needs reformulation. The theory I
will set forth allows for constant application of the rule. It also demon-
strates how the cases in which the Supreme Court has allowed the as-
sertion ofjus tertii have actually been cases in which the litigants' own
rights were violated.
The rules the Court applies in Category I cases, as I shall explain
below, are properly focused and are consistent with my theory. The
Court's "factor doctrine," however, is the wrong approach because it
uses the wrong criteria. Claims of a close relationship between the liti-
gants and third parties, or of the impracticability of a third party's as-
sertion of his own rights, are not enough. No relationship, however
close, transfers one party's constitutional rights to another,40 and if the
law or government action can constitutionally be applied to a litigant it
should not matter that it cannot constitutionally be applied to a third
party with whom the litigant has a close relationship.
Nor should it matter that it might be "impracticable" for third par-
ties to assert their own rights in an independent action. Impracticabil-
ity does not substitute one party for another, and does not furnish a
reason why any litigant should be able to avoid the application of a law
or government action that is constitutional as to him.41
My argument, then, is that as a general proposition there is no
39. 429 U.S. 190 (1976).

40. I do not, of course, speak here of situations in which an individual, such as a minor or an
incompetent, is unable to defend his or her own rights and relies upon some related party to assert
them instead.
41. There is one theoretical circumstance in which it would be justifiable to permit the liti-
gant to prevail by asserting the rights of third parties. If the practical effect of the enforcement of
the challenged law or governmental action against the litigant would be to violate the third par-
ties' rights and if it would be impossible for the third parties to vindicate their own rights in an
independent suit, the court is justified in permitting the party before the court to assert the rights
of third parties. This is because the enforcement of the challenged law or governmental action
against the party before the court in this circumstance is tantamount to allowing the rights of the
third parties to be violated.
An example of this rare kind of case is NAACP v. Alabama, 357 U.S. 449 (1958), in which it
was held that compelling the NAACP to produce its membership lists would violate the members'
right to freedom of association and the accompanying right to privacy in group association. Id. at
462. If the members had sought to vindicate their own rights in court, they would have lost the
privacy the lawsuit would have been designed to protect. Because enforcement against the
NAACP would violate the members' rights, and because the members could not retain their rights
1322 C.ALIFORNI.4 L4W REVIEW [Vol. 70:1308
justification for allowing litigants to stand on other parties' rights. Ad-

judication must turn on the validity of a challenged law or government
action as to the challenger himself. And if this is true, the Supreme
Court's "factor doctrine" should be replaced by a substantive rule that
ascertains the rights of the party before the Court, and the Court should
acknowledge that its rules as to facial challenges are grounded in liti-
gants' own substantive rights.42
II
THE ASSERTION OF THIRD-PARTY RIGHTS IN RETROSPECT:
A SUBSTANTIVE HYPOTHESIS
This Part argues that in fact the assertion ofjus tertii has not been
allowed by the Supreme Court. That is, the Court has not really per-
mitted a party as to whom a challenged law is constitutional to prevail
by asserting third parties' rights. I posit, then, that the results of the
decided cases are consistent with the thesis I have stated that in consti-
tutional litigation, parties may prevail only by asserting their own
rights.43 The purpose of this Section is to show that what has appeared
as a matter of "standing to assert jus tertii" is in fact a matter of sub-
stance, and that where the Court has thought it was permitting the as-
sertion of third-party rights, the challenged law actually violated the
if they appeared in Court to assert them, the NAACP was properly allowed to assert the rights of
its members.
This circumstance, however, is rare and is different from the "impracticability of assertion"
factor that the Court has been using. In Singleton v. Wulff, 428 U.S. 106 (1976), for example, the
Court's holding did not itself allow the patients' rights to be violated. Moreover, the patients
could have brought their own suit contending that they were entitled to have the state make pay-
ment to the physicians on their behalf. The same is true of Griswold v. Connecticut, 381 U.S. 479
(1965): the persons desiring to obtain access to contraceptives could have brought suit in their
own right, using a fictitious name to maintain their privacy. Assuming that the third parties can
vindicate their own rights in an independent suit, albeit with some difficulty, there can be no
justification for permitting the litigant to prevail by asserting their rights.
. 42. In a recent article, Professor Rohr, using a "standing" analysis with respect to the asser-
tion of jus tertii, contends that "for the sake of clarity, economy, and consistency of approach,
federal courts should grant third-party standing to any litigant who appears reasonably likely to
give adequate representation to the interests of the third parties whose rights the litigant wishes to
assert." Rohr, Fightingfor the Rights of Others: The Troubled Law of Third-PartyStanding and
Mootness in the Federal Courts, 35 MIAMI L. REV. 393 (1981). The rather fundamental defect in
Professor Rohr's position is that despite his disclaimer in this regard, the assertion of jus tertii
would turn out to be an aspect of "representational standing," in which the party who is before the
court is "fighting for the rights of others." The reason that the litigant is asserting jus tertii, how-
ever, is so that he can prevail on the assailant's own claim or defense. Professor Rohr does not
fully explain what the justification is for permitting a party as to whom the application of the
challenged law or governmental action is presumably constitutional, to prevail on the ground that
such law or governmental action violates the rights of third parties.
43. See Heald v. District of Columbia, 259 U.S. 114, 123 (1922) (suggesting that general rule
is that one who challenges constitutionality of state statute must show membership in class with
respect to whom act is unconstitutional and that the statute's unconstitutional feature injures him).
litigant's own constitutional or substantive right to be free from invalid

government action.' Although questions of jus tertii come up most
often in the form of Category II cases, I analyze both Category I and
Category II cases here to demonstrate that my substantive hypothesis
covers all jus tertii questions. I deal first with Category I facial chal-
lenges to laws, and then with Category II cases in which litigants before
the court alleged that application of a challenged law to them would
disadvantage some third party as well.
A. Challenges to Laws "On Their Face"

The Supreme Court in certain circumstances has allowed parties
before it to challenge laws that are valid as applied to them on the
ground that they are invalid as applied to some third parties. I call
these suits "facial' challenges because they go to the actual terms of the
law, not simply to its application to the party in court. The Supreme
Court has viewed these suits as presenting jus tertii questions. In fact,
however, in these cases the litigants themselves have had substantive
rights to be free from the laws in question.
1 The Non-Expression Situation

The Supreme Court has traditionally differentiated between facial
attacks on laws that by their terms restrict expression and facial assaults
on other regulatory and criminal laws that do not by their terms restrict
first amendment expression. I deal here first with the latter. The
Supreme Court's rule as to assertion ofjus tertii in attacks on such laws
is as follows: If a litigant can show preliminarily that the law he chal-
lenges is not severable, in that it cannot apply differently to different
situations so that a defect when it is applied to others will render it
invalid as applied to everyone, including himself, then he may chal-
lenge the law on the ground that it violates third parties' rights.4 5
This rule is not inconsistent with my thesis that allowing litigants
to prevail by asserting others' rights is unjustifiable. For here, there is a
clear substantive basis for permitting such a challenge even if it is
brought by a party as to whom the application of the law is constitu-
tional. If a law is nonseverable, and if it is unconstitutional in some of
its applications,there will be no valid law that could ever apply to the
litigant's conduct. This is by definition; a nonseverable law which is
unconstitutional as to some cannot ever be validly applied. The liti-
44. The term "substantive right to be free from invalid government action" refers to the
circumstance where a nonseverable federal law is "void on its face," with the result that no sub-
stantive liability can be imposed against the litigant before the Court.
45. Jus Terii,supra note 1, at 608.
gant, in turn, has a substantive right to avoid sanction or the possibility

of sanction under an invalid law.
This point is illustrated by Aptheker v. Secretary of State. 6 In
Aptheker, plaintiffs challenged a federal law that prohibited any mem-
ber of an organization required to register as a "subversive organiza-
tion" by the Subversive Activities Control Board from applying for or
using a passport. The suit was brought by top-ranking leaders of the
Communist Party who had been notified that their passports had been
revoked because the Communist Party had been designated as a "sub-
versive organization."
The Court held that the law on its face violated the fifth amend-
ment's due process guarantee.47 It rejected the government's argument
that the Court should find the law severable, because even if Congress
could not prohibit all members of the Communist Party from obtaining
passports, it could impose such a prohibition on top-ranking leaders,
who happened to be the only parties before the Court. The Court held
instead that the law was nonseverable because applying the narrow in-
terpretation proposed by the government would distort the meaning of
the statute, which was intended to apply to all Communists.4 8
Given this nonseverability, and given that any denial of passports
must be authorized by a valid statute,49 the issue of the law's over-
breadth and its unconstitutionality as applied to other members of the
Party was relevant to the determination of plaintiffs' own substantive
claim. Because the law was unconstitutional as applied to third parties,
there was no valid law to be invoked as to the plaintiffs, and they could
not be denied passports. The plaintiffs thus prevailed on the basis of
their own substantive rights to be free from sanctions based on an inva-
lid law.5"
46. 378 U.S. 500 (1964).

47. Id. at 514.
48. Id. at 515-16.
49. Kent v. Dulles, 357 U.S. 116, 129-30 (1958).
50. This situation was also presented in older cases in which the Court allowed facial chal-
lenges to a law by a party as to whom application of that law was assumedly valid. For example,
in Butts v. Merchants & Miners Transp. Co., 230 U.S. 126 (1913), the Court held that the federal
Civil Rights Act of 1875, previously invalidated in the Civil Rights Cases, 109 U.S. 3 (1883), when
applied to the acts of a private person within a state, was not intended to apply to acts occurring
on the navigable waters of the United States. Because the law was unconstitutional in some of its
applications and was nonseverable, Congress had not created a substantive right of recovery
against the defendant for practicing racial discrimination in coastal waters.
Similarly, in United States v. Reese, 92 U.S. 214 (1875), the Court struck down as "void in
toto" a federal voting rights law. Therefore, there was no valid law to be invoked against the
party who was before the Court. While the defendant was charged with violating a section of the
law prohibiting interference with the right to vote on grounds of race, two of the law's four sec-
tions prohibited interference with the right to vote on other grounds, and at that time the Court
was of the view that the power of Congress to protect voting rights was limited to acting under the
Where the law challenged by the party before the Court is severa-
ble, on the other hand, there is no issue of its constitutionality as to
third parties. Even if the law would be invalid as to others, it remains
valid as to the litigant in court. This is also consistent with my thesis.
The litigant cannot assert unconstitutionality as to third parties, not be-
cause he lacks "standing" to assert third-party rights, but because when
the statute is severable, the litigant's substantive claims can be decided
without reference to third-party issues.5 1
For example, in United States v. Raines,5 2 the Court found that
Congress intended that the challenged law,53 which prohibited "any
person" from interfering on racial grounds with another's right to vote,
should be applied to acts of governmental officials without regard to 54
whether it could constitutionally be applied to acts of private persons.
It therefore held that a government official charged with a violation of
the law could not defend on the ground that the law could not reach
private persons.
The Raines Court clearly intimated that the law's constitutionality
as to private persons was not relevant in a prosecution against state
officials. This is correct, as the official before the Court could assert no
right of his own derived from the rights of those to whom the law might
someday be unconstitutionally applied. 55
The rule regarding facial challenges in the non-expression context,
fifteenth amendment to prevent racial discrimination. Id at 217-19. The Court found that the
law was not capable of severable application. Id at 221. Because the law sought to be invoked
against the defendant was both nonseverable and unconstitutional (at least in part), there was no
valid law that could be invoked against the defendant, and his conduct could not be subject to
criminal sanction. Given the Court's holding as to the nonseverability of the law, the issue of the
constitutionality of all of the sections was necessarily relevant to the determination of whether the
law could, as a matter of federal substantive law, be invoked against the defendant. In both of
these cases, then, the assailants prevailed on the basis of their own substantive rights.
51. Thus, a party who constitutionally can be subject to the government's taxing power
would have no basis for challenging a taxing statute on the ground that it would be unconstitu-
tional as applied to others. Heald v. District of Columbia, 259 U.S. 114, 122-23 (1922). Likewise,
a defendant as to whom a severable criminal statute is not impermissibly vague would have no
basis for asserting that it would be impermissibly vague in other possible situations to which it
could be applicable. This claim is frequently made in practice and rejected on "lack of standing"
grounds. See, e.g., United States v. Alfonso, 552 F.2d 605, 615-16 (5th Cir. 1977), cert denied,434
U.S. 857 (1979); United States v. Chew, 540 F.2d 759, 761 (4th Cir. 1976), cert. denied, 429 U.S.
1043 (1977); United States v. Persky, 520 F.2d 283, 287-88 (2d Cir. 1975); Big Eagle v. Andera,
508 F.2d 1293, 1297 (8th Cir. 1975).
52. 362 U.S. 17 (1960).
53. 42 U.S.C. § 1971(c) (1976).
54. Raines, 362 U.S. at 23 n.4.
55. See the discussion in id. at 25-26. In Craig v. Boren, 429 U.S. 190, 195 n.4 (1976), the
Court explained Raines as a case in which the interests of the assailant and the third party were
not "mutually interdependent," so that a successful prosecution against Raines "did not threaten
to impair or diminish the independent private rights of others." While this is true, it should not
have prevented Raines from challenging the law "on its face" if the law were in fact nonseverable.
according to my substantive hypothesis, is as follows. If there is a valid

severability clause, any challenge to a federal law which is based on an
assertion that it is unconstitutional as applied to third parties not before
the Court should be dismissed, because third-party rights are irrelevant
to a determination of the litigant's substantive rights. Where the law is
not severable and where it is unconstitutional in its application to third
parties, a litigant's challenge will succeed b*ecause the litigant may as-
sert his own substantive right not to be subject to sanction under an
invalid law.16 The results are the same as those obtained by the
Supreme Court's rule, but the basis for the distinction is different.
Thus, my conclusion based on substantive rights is sounder than a con-
clusion that is based on a loose notion of standing to assert third-party
rights.
2 The Expression Situation
Where a litigant mounts a facial challenge to a law that restricts

expression, the Court will determine the validity of the law by looking
only to its terms, without reference to whether the litigant's expressive
conduct was itself unconstitutionally restrained. 7 The Court has ex-
plained that the policy basis for this rule is that it wants to prevent the
existence and threatened enforcement of vague and overbroad laws
56. This rationale would not justify allowing a party to mount a facial challenge to a state
law in the non-expression situation. In the federal context, the Court must decide questions of
substantive liability as well as constitutional questions, and must determine whether there is a
valid federal law to be invoked against the litigant. In the state context, however, the only ques-
tion for the federal court is whether the state has violated the litigant's federal constitutional or
statutory rights. If the challenged state law can constitutionally be applied to the litigant, and
such application is not prohibited by federal law, the inquiry of the federal court is at an end.
Whether a state law is capable of severable application is a question of state law, and the applica-
tion of a nonseverable state law to a party whose activity the state can constitutionally reach does
not violate any federal constitutional rights of that party.
This proposition is illustrated by the case in which a nonphysician challenges a state anti-
abortion law that would be unconstitutional if applied to prohibit the performing of abortions by
physicians. If the state can constitutionally prohibit nonphysicians from performing abortions, the
conviction of a nonphysician under the statute, whether the statute is severable or not, violates no
federal constitutional rights of the defendant. For this reason, the federal court in this case cannot
properly consider the constitutionality of the state statute "on its face". The Court in effect
reached this result in Cheaney v. Indiana, 410 U.S. 991 (1973), denying cert. to 259 Ind. 138, 285
N.E.2d 265 (1972), although it couched its decision in terms of the defendant's "want of standing"
instead of in terms of the substantive constitutionality of the application of the state anti-abortion
law to this defendant. Although the Court has in the past allowed facial challenges to some state
laws in the non-expression situation, see, e.g., Berger v. New York, 388 U.S. 41 (1967); Wuchter v.
Pizzutti, 276 U.S. 13 (1928), it has more recently refused to permit such challenges, see County
Court v. Allen, 442 U.S. 140 (1979); Sibron v. New York, 392 U.S. 40 (1968); ef. H.L. v. Matheson,
450 U.S. 398 (1981) (appellant lacked standing to make facial challenge because neither she nor
any member of her class was demonstrably affected).
57. Jus Tertii, supra note 1, at 613.
19821 CONSTITUTIONAL JUS TERTII 1327
from having a chilling effect on exercise of first amendment rights.5 8

Reasoning that a finding of facial invalidity would mean that the law
"abridge[d] expression in such a way that it [could] never be constitu-
tionally applied," 9 the Court has allowed litigants to claim that though
a statute may be constitutional as applied to them, it would be uncon-
stitutional as applied to others.60
This rule, too, is consistent with my substantive hypothesis. While
the Court has expressly discussed the "void on its face" doctrine in
terms of 'jus tertii standing," 6' and although a litigant may prevail
even though his own first amendment expression may not be unconsti-
tutionally affected, the doctrine is substantive. This is because the liti-
gant has a substantive first amendment right to be free from the
sanctions, real or feared, of a law that is void on its face. The Court has
recognized this right by stating: "Any enforcement of [such a] stat-
ute . . .is totally forbidden until and unless a limiting construction or
partial invalidation so narrows it as to remove the'62seeming threat or
deterrence to constitutionally protected expression.
It follows that the "void on its face" doctrine does not allow unaf-
fected litigants to prevail by asserting third-party rights. Even if a liti-
gant himself was not deterred by the chilling effect of a restrictive
statute, as would seem to be the case if he faces legal proceedings for
violating the statute, his rights would not remain untouched. It may be
the potential chilling effect upon others' expression that makes the stat-
ute invalid, but the litigant has his own right not to be subject to the
operation of an invalid statute. Thus, the rule does not contravene my
thesis that litigants must prevail on the basis of their own rights, not the
rights of third parties. 3
58. As I explained in my earlier article:

The Court has taken the position that to permit a statute which by its terms restricts
expression to withstand attack, because as applied to the facts of the particular case it
would be constitutional, would leave standing a statute susceptible of having a severe in
terrorem effect on expression. The real danger with which the Court is concerned is not
that persons will be convicted because they could not know that their expression was
prohibited by the statute or that the statute will be unconstitutionally applied, but that
because of the risk of such conviction or application, such persons will not exercise their
rights of expression and the public interest in that exercise will be impaired .... This
danger justifies standing to attack the statute on its face, as it were, without reference to
the particular conduct involved-in effect, permitting an attack on the grounds that the
statute violated the constitutional rights of others.
1d at 615.
59. Id. at 612-13.
60. Id. at 613.
61. See Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973).
62. Id. at 613. The statute must be capable of being so construed. The state court cannot
satisfy the constitutional requirement by construing the statute so as to operate "within constitu-
tional limits," if the language of the statute does not reasonably lend itself to such a construction.
See Lewis v. New Orleans, 415 U.S. 130 (1974).
63. The substantive nature of the "void on its face" doctrine is clearly illustrated by Lewis v.
B. Adverse Effect on Third-PartyRightsfrom the ChallengedLaw or

Governmental Action. CategoryII Cases
This Section applies my thesis to the far more common Category
II situation, in which a party claims that application of a law or govern-
ment action to him would have an additional adverse effect on third
parties' rights. I will demonstrate that in all of the cases in which the
assertion ofjus tertii was permitted and the'party before the Court pre-
vailed, the challenged law or governmental action in fact violated that
party's constitutional rights. This Section will also demonstrate that in
the few recent cases where the Court has refused to allow a litigant to
assert other parties' claims, the law or government action did not vio-
late the litigant's rights, and the alleged violation of third-party rights
was irrelevant to the determination of the litigant's own constitutional
claim.
. The Cases in Which the Assertion of Jus Tertii Was Permitted

In the cases where the Court thought it was allowing the assertion
of jus tertii,64 the results can be explained by referring to the litigant's
New Orleans, 415 U.S. 130 (1974). In striking down a city ordinance making it an offense for any
person to "curse or revile or to use obscene or opprobrious language toward" a police officer, the
Court stated:
In sum, § 49-7 punishes only spoken words. It can therefore withstand appellant's attack
upon its facial constitutionality only if, as authoritatively construed by the Lousiana
Supreme Court, it is not susceptible of application to speech, although vulgar or offen-
sive, that is protected by the First and Fourteenth Amendments. Since § 49-7, as con-
strued by the Louisiana Supreme Court, is susceptible of application to protected speech,
the section is constitutionally overbroad and therefore is facially invalid.
Id at 134 (citations omitted).
The dissenting justices, bitterly assailing the doctrine, also recognized its substantive basis:
The "overbreadth" and "vagueness" doctrines, as they are now being applied by the
Court, quietly and steadily have worked their way into First Amendment parlance much
as substantive due process did for the "old Court" of the 20's and 30's. These doctrines
are being invoked indiscriminately without regard to the nature of the speech in ques-
tion, the possible effect the statute or ordinance has upon such speech, the importance of
the speech in relation to the exposition of ideas, or the purported or asserted community
interest in preventing that speech.
Id. at 136-37.
As Lewis makes clear, there is a substantive first amendment right on the part of persons
engaging in acts of expression not to be subject to sanction under a law that is "void on its face."
See also Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620 (1980).
64. We are limiting our consideration here to the cases decided after 1962 and the "classic"
jus tertii case of Barrows v. Jackson, 346 U.S. 249 (1953). Pre-1962 cases not discussed in this
Article, in which the assertion ofjus tertii was permitted, generally involved an organization as-
serting the rights of its members. Jus Tertii, supra note 1, at 644-45.
In some older cases, decided before the concept of "standing to assert constitutional jus tertii"
had been firmly recognized and at a time when the doctrine was in terms of a general prohibition
against the assertion of jus tertii, the Court considered the rights of third parties on the ground
that those rights were intertwined with the rights of the litigant. In cases involving challenges to
workers' compensation laws by employers, the Court expressly considered the constitutionality of
the laws from the perspective of both the employer and the employee, noting that while the liti-
own rights. As regards the interaction between the violation of third-

party rights and the violation of litigants' own rights, three operative
principles emerge from these cases. Violation of third-party rights will
implicate the litigants' own rights when: (1) the litigants and the third
parties have some relationship; (2) the relationship is the source of the
deprivation of the third parties' rights by the invalid law; and (3) for
the same reason that the invalid law violates the rights of third parties,
it violates the rights of the litigants. In cases meeting this description,
the litigant has been sufficiently injured by the operation of the invalid
law that he may assert substantive due process rights to be free from
the harm caused by the invalid law. The gravamen here is that the
litigant must assert his own rights.
65 66
Consider first Griswold v. Connecticut and Eisenstadt v. Baird.
In both cases, dispensers of contraceptives were permitted to strengthen
their claims against enforcement of state anti-contraceptive laws by as-
serting the constitutional rights of would-be contraceptive users.
In Griswold, the Court held that the operators of a birth control
clinic, charged as accessories to a violation of a Connecticut law
prohibiting the use of contraceptives, could assert their married pa-
tients' constitutional rights to birth control. This was not permitting the
clinic owners to prevail by asserting third parties' rights: it is clear that
the prohibition against prescribing contraceptives for married persons
implicated the defendants' own due process rights. In this case, the
doctors were asserting the same due process rights their patients would
gant was an employer and could not prevail unless his own rights were violated, "the exemption
from further liability is an essential part of the scheme, so that the statute, if invalid as against the
employee, is invalid as against the employer." New York Cent. R.R. v. White, 243 U.S. 188, 197
(1917); see also Mountain Timber Co. v. Washington, 243 U.S. 219, 234 (1917).
Similarly, in Meyer v. Nebraska, 262 U.S. 390 (1923), and companion cases, in which the
Court invalidated a state law prohibiting the teaching of a foreign language to school children,
only a teacher or a school was before the Court. The Court, however, invalidated the laws on the
ground that they violated the rights of the parents and students as well as the rights of the teachers
and the schools. In fact, the Court considered these sets of rights to be inseparable and did not see
the cases as involving any attempt to assert constitutional jus tertii. It took the same approach in
Pierce v. Society of Sisters, 268 U.S. 510 (1925), in which it invalidated on due process grounds a
state law requiring parents to send their children to public schools instead of private ones. There
the plaintiffs were operators of private schools, and the Court found that the law was both an
unreasonable interference with the liberty of parents and guardians to direct the education of
children under their control, and an interference with the property interests of the schools by
preventing them from enrolling students.
In Meyer and Pierce, the violation of the rights of the students and parents was directly
relevant to the determination of the litigants' constitutional claim. If the state could not interfere
with the rights of parents and children to receive foreign language instruction or attend private
schools, there could be no justification for the interference with the liberty or property interests of
the parties who were before the Court. Ultimately, however, the litigants' claims stood or fell on
the basis of their own rights.
65. 381 U.S. 479 (1965).
66. 405 U.S. 438 (1972).
assert, and the harm alleged stemmed from the doctor-patient

relationship.
This state law under which the clinic's operators were charged
compels this conclusion. The statute was a general criminal accessory
law making the clinic owners chargeable as principals in the crime of
their patients' use of contraceptives. Due process doctrine requires that
a state have legitimate justification for its actions, and citizens have a
due process right to be free from laws that criminalize their activity
absent such justification.67 If criminalizing use of contraceptives was
unjustified, the criminalization of being an accessory to that use must
also have been improper.
The defendants made the due process argument in their brief.
They contended that they had a liberty and property interest in the
practice of their profession,6" that their rights were "assimilated" with
the rights of their patients, and that the anti-contraceptive laws were
"arbitrary and capricious and had no reasonable relationship to a
proper legislative purpose.1 69 The Court did not face these arguments
squarely,70 but it did recognize that the clinic owners, charged as acces-
sories, could assert that the prohibition of their patients' contraceptive
use violated their own constitutional rights.7 ' This is the proper result,
because the state was unjustifiably interfering with the defendants' lib-
erty to prescribe contraceptives for the use of their married patients.
The clinic operators, then, were asserting their own rights, 72 and the
Griswold result is consistent with my substantive hypothesis.
In the Eisenstadt case, Baird, a nonphysician, had been convicted
of violating a Massachusetts law that prohibited distribution of contra-
ceptives except by licensed physicians or pharmacists to married pa-
tients. In Baird's habeas proceeding, the Court allowed him to assert
the unmarried persons' equal protection right of access to contracep-
tives.73 The Court held that the law violated unmarried persons' equal
protection rights, and invalidated it. I submit that the holding could-
67. Meyer v. Nebraska, 262 U.S. 390 (1923).
68. Practicing one's profession is a protected liberty and property interest for due process
purposes. See, e.g., In re Ruffalo, 390 U.S. 544 (1968) (per curiam).
69. See Brief for Appellant, Griswold v. Connecticut, 14 L. Ed. 2d at 987.
70. This is probably because a majority of the Court was unwilling to revive substantive due
process. Only Justices White and Harlan, in concurring opinions, took the position that the anti-
contraceptive law violated any substantive due process right. The majority opinion by Justice
Douglas found a "right of privacy" in the penumbrae of specific constitutional guarantees, while
the concurring opinion of Justice Goldberg found it in the ninth amendment.
71. The Court stated that "the accessory should have standing to assert that the offense
which he is charged with assisting is not, or cannot constitutionally be a crime." 381 U.S. at 481.
72. This is true even though the physician's right to prescribe contraceptives derived from
his patients' right to use them; the derivative nature of the right does not destroy its validity.
73. Only seven members of the Court participated in the decision of the case. Justices Stew-
art, Marshall, and Douglas joined Justice Brennan's opinion of the Court, although Justice Doug-
1982] CONSTITUTIONAL JUS TERTH1 1331
and should-have been based on the rights of the party before the
Court, because the challenged law violated Baird's own rights.
Because the distributor Baird was not a licensed physician or phar-
macist, this case may look like a Category I facial challenge. In fact, it
was not. Baird asserted that the law was unconstitutional as to him
because it was not justifiable as a health measure, and therefore its dis-
crimination between health professionals and others was invalid. The
Court agreed, finding no valid state public health interest behind the
law and rejecting the state's severability argument that the law could at
least be constitutionally applied as to Baird, because he was not a
health professional. The majority held that the state could not legiti-
mately distinguish between health professionals and other contracep-
tive distributors. 74 This holding meant that the statute could not be
applied differently to Baird than to health professionals, and allowed
the Court to reach the question of the legitimacy of distinguishing be-
tween married and unmarried contraceptive users. The Court then de-
cided that Massachusetts had no legitimate state interest in
distinguishing between married and unmarried contraceptive users,
and invalidated the law on the assumption that Baird was asserting
unmarried persons' rights.
The case could have been decided on the basis of the distributor's
own rights. If unmarried persons have the same right of access to con-
traceptives as married persons, 75 the state, which recognized the mar-
ried patients' right of access 76 and therefore could not deny it to
unmarried persons, similarly could not interfere with the distributor's
liberty to give contraceptives to those unmarried persons.77 If the origi-
nal distinction may not be constitutionally made, any law resulting
from that distinction must be unconstitutional as well. Note that again,
the harm stemmed from the distributor-distributee relationship, and,
for the same reason that it violated the unmarried persons' rights, it
also violated Baird's rights.
The concurring Justices, White and Blackmun, agreed with the
thesis advanced here, that litigants must prevail on the basis of their
own rights, not the rights of third parties. They took the position that
the petitioner had a constitutional right to distribute contraceptives to
at least some persons. 78 The perception underlying this position must
las also filed a concurring opinion. Justices White and Blackmun concurred in the result. Chief
Justice Burger dissented.
74. 405 U.S. at 444.
75. This was the substantive holding of the majority in Eisenstadt. 405 U.S. at 453-55.
76. The state was compelled to do so under the restrictions of Griswold.
77. This is true given the finding that it could not require that all contraceptives be pre-
scribed by a physcian. 405 U.S. at 450.
78. 405 U.S. at 464.
have been that the petitioner's action in distributing the contraceptives

was a part of the liberty protected by substantive due process,79 and
could be restricted only when such restriction would advance a legiti-
mate governmental interest. In this case, there was no such govern-
mental interest, the petitioner Baird was entitled to prevail on his own
rights because he had some liberty interest in distributing contracep-
tives. Eisenstadt, then, is also consistent with my substantive
hypothesis.
Singleton v. Wur 0 should also be considered. In that case the
plaintiff-physicians asserted that the state's refusal to pay for nonthera-
peutic abortions unconstitutionally interfered with their ability to prac-
tice medicine in the way they considered most beneficial to their
patients. This contention is unsound. Just as there is no constitutional
requirement that the state fund any medical procedures for indigents,8 '
there is no constitutional requirement that the state facilitate a physi-
cian's practice of medicine by funding any medical procedure for the
physician's indigent patients.
But what about the physicians' rights to equal protection? If the
physicians could have established that indigent women are entitled to
payment for abortions by virtue of their equal protection rights, they
could have claimed that they were similarly entitled to receive payment
for performing the abortions. In other words, if the state could not, as a
matter of equal protection, justify distinguishing between abortions and
other medical procedures, for the same reason it would have no consti-
tutional justification for refusing payment to the physicians. In actual-
ity then, the physicians in Singleton could have asserted their own
equal protection right to receive payment for performing abortions, just
as physicians were being paid for performing other medical proce-
dures.8 2 Singleton is therefore also consistent with my substantive
hypothesis.
A look at Craigv. Boren, 3 using principles analogous to those dis-
cussed above, shows that this case also fits my thesis. In Craig, the
Court held that the challenged law contained an impermissible gender-
79. The "liberty" protected by due process has been said to include "not merely freedom
from bodily restraint but also the right of the individual to contract, to engage in any of the
common occupations of life, . . . and generally to enjoy those privileges long recognized at com-
mon law as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262
U.S. 390, 399 (1923) (citations omitted). See also Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897).
80. 428 U.S. 106 (1976).
81. Maher v. Roe, 432 U.S. 464, 469 (1977).
82. In Singleton, the plaintiffs probably believed that the denial of Medicaid funding for
abortions would be subject to a greater degree of scrutiny if they claimed it violated the constitu-
tional rights of the woman. While this may have been so, the denial of Medicaid funding for
abortions was nonetheless upheld in Maher and in Harris v. McRae, 448 U.S. 297 (1980).
83. 429 U.S. 190 (1976).
based classification that violated* the equal protection rights of the

plaintiff's underage male customers.8 4 But that case could have been
decided on plaintiff's claims alone. If, when Oklahoma prohibited the
seller from selling beer to males under age 21, it acted without justifica-
tion as to infringe the rights of underage males, it unjustifiably inter-
fered with the plaintiff's liberty and property interests as well.
Therefore, the plaintiff was entitled to challenge such interference as
violating her own due process rights.
It is true that because the challenged restriction contained a gen-
der-based classification, the state was required to show more than mini-
mal justification for the law. It was under this higher standard that the
law failed.8 5 But this does not mean that the plaintiff would have been
less able to prevail by asserting her own rights. The reasons justifying
heightened scrutiny of gender-based classifications8 6 are the same re-
gardless of the challenger's gender, regardless of whether the challenge
is made by the seller or the buyer, and regardless of whether the chal-
lenge is on due process or equal protection grounds. Therefore, if the
law was found to be insufficiently tied to a legitimate government inter-
est under this heightened scrutiny, it was equally invalid as to the
plaintiff seller and as to her potential customers. In other words, if the
state could not validly prevent eighteen- to twenty-year-old males from
buying beer, it could not validly prevent the plaintiff from selling it to
them. The invalidity of the gender-based classification underlay both
the seller's and male customers' rights, and related to the vendor-ven-
dee relationship. Thus, the seller was entitled to prevail on her rights
alone, and the Craig v. Boren result can be explained consistently with
my substantive hypothesis.
Finally, similar analysis also explains the result in the classic jus
tertii case of Barrows v. Jackson.8 7 There, suit was brought against a
white seller for breach of a racially restrictive covenant covering land
that the defendant sold to a black puchaser. The seller was able suc-
cessfully to challenge the covenant by asserting the equal protection
rights of actual and prospective black purchasers.
The proper rationale once again focuses on the litigant's own
rights. As a matter of due process, a state's imposition of damages, like
any governmental act, must advance a legitimate governmental inter-
est. Ordinarily, protecting contractual expectations and enjoyment of
property through enforcement of restrictive covenants would be suffi-
cient justification for imposing damages for breach of the covenant.
84. Id. at 204.

85. Id. it 200-04.
86. See 429 U.S. at 197-99.
87. 346 U.S. 249 (1953).
But awarding damages for breach of the racially restrictive covenant

would have involved the state in impermissible racial discrimination.88
When enforcement of contractual expectations and enjoyment of prop-
erty works to involve the state in constitutionally prohibited discrimi-
nation, the state has no legitimate governmental interest in awarding
damages for breach of contract. In Barrows, as a result, enforcement of
the racially restrictive covenant by awarding damages would have vio-
lated the plaintiff seller's own due process right to be free from unjusti-
fied governmental action. 9 Barrows, therefore, is also consistent with
my substantive hypothesis."
This review of the cases where the assertion of jus tertii was per-
mitted demonstrates that the results in all of these cases can be ex-
plained by looking to the substantive rights of the litigant before the
Court. In the cases in which the Court invalidated the challenged law
88. Shelley v. Kraemer, 334 U.S. 1 (1948). This was also the substantive holding of Barrows.
89. As noted in connection with Craig v. Boren, 429 U.S. 190, 195 (1976), the violation of the
prospective buyers' rights by the enforcement of the racially restrictive covenant against the seller
would be relevant to show a lack of justification for the interference with the seller's liberty and
property interests. But it would not be necessary for the Court to consider the violation of the
rights of the prospective buyers as such in order to hold that the awarding of damages would
violate the rights of the seller.
90. In Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), a landlord and some of his former
tenants challenged the constitutionality of a village ordinance prohibiting more than two unre-
lated persons from living together. They asserted their own rights and the rights of all unrelated
persons wanting to live together on the ground that the prohibition violated the "right to privacy"
of the tenants. The Court upheld the ordinance. Because the unrelated persons did not have a
constitutional right to live together, and because the restriction on unrelated persons living to-
gether advanced what the Court found to be valid "environmental concerns," the village could
assert a legitimate interest in the ordinance, and therefore could constitutionally restrict the land-
lord's use of his property in this manner.
Belle Terre is unusual in that while the Court apparently allowed the plaintiff to assert third
parties' rights, the plaintiff's attempt to augment his claim failed because the Court then decided
that the challenged action did not violate the third parties' constitutional rights. In retrospect, the
result here can also be explained on the ground that the challenged action did not violate the
rights of the party before the Court either.
In Belle Terre, as in Craigv. Boren, the ordinance directly interfered with the property inter-
ests of the party before the Court. As a matter of due process, again, the state had to assert a
legitimate governmental interest to justify such interference. If unrelated persons did have a con-
stitutional right to live in the same dwelling, and if the state could not justify infringing that right
by asserting some legitimate governmental interest, the state by definition would have no legiti-
mate interest in interfering with the landlord's ability to rent the premises to whomever he chose.
The landlord was therefore a proper plaintiff. But because the use restriction was constitutional,
the result can be explained on the ground that the challenged ordinance did not violate the plain-
tiff landlord's due process rights.
Justice Brennan, in dissent, stated that the challenge was premised solely on the alleged in-
fringement of the tenants' constitutional rights, so that in his view, the determination of the moot-
ness question depended on whether the landlord could assert their constitutional rights. He
maintained that the assertion ofjus tertii should not be permitted, since there was no impractica-
bility of assertion of the rights by the tenants themselves, as indicated by the fact that the former
tenants had joined as plaintiffs. 416 U.S. at 10-12. The majority did not directly respond to Justice
Brennan's argument in this regard.
or governmental action, it could have done so on the ground that it

violated the litigant's own constitutional rights. And in the cases in
which the challenged law or governmental action did not violate the
rights of some third party,9 it did not, for the same reasons, violate the
litigant's constitutional rights. Thus, the results of these cases are con-
sistent with my thesis that a party may prevail in constitutional litiga-
tion only by asserting a violation of his own rights.
2. The Cases in Which the Assertion of Jus Tertil Was Not Permitted
This Subsection will consider the relatively few recent cases in
which the assertion ofjus tertii was not permitted. In these cases, after
refusing to allow litigants to supplement their claims by asserting third
parties' rights, the Court found that the challenged law or governmen-
tal action did not violate the litigant's constitutional rights. This result
is consistent with my hypothesis of substantive rights. In these cases,
violation of third-party rights was irrelevant to the determination of the
litigants' constitutional claims.
In Moose Lodge No. 107 v. Irvis,92 a black who had been denied
service at a private club brought suit challenging the club's policy of
refusing service to members' black guests. The Court held that he
could not also challenge the club's policy of denying membership to 93
blacks by asserting the rights of blacks wishing to become members.
This is the proper result under my thesis that the litigant's substan-
tive rights should be the only ones considered, because the court could
not have decided both questions using the same substantive criteria.
The constitutionality of the club's refusal to permit blacks to become
members was analytically dissimilar to whether its policy of refusing to
serve members' black guests was unconstitutional. Even if both the liti-
gant and the third party had equal protection claims, no relation ex-
isted between the two which involved the alleged harm. Therefore,
even if the club's membership policy did infringe black would-be mem-
bers' rights, the plaintiff, not wishing to become a member himself, suf-
fered no detriment from the policy and therefore could not challenge it.
The Court properly restricted the scope of the case to the constitution-
ality of the club's service policy, for the plaintiff's rights were infringed
by that policy alone.
91. This was the situation in Belle Terre and Singleton. The reference to the result in Single-
ton is in light of the subsequent decisions in Maher and Harris.
92. 407 U.S. 163 (1972).
93. Justice Douglas, in dissent, argued that the plaintiffshould be able to challenge the statu-
tory scheme which authorized the club to practice racial discrimination because the scheme
caused "cognizable injury" to all black residents of the state. 407 U.S. at 183-85 & n.4 (Douglas,
J., dissenting).
1336 6CALIFORNIA LAW REVIEW [Vol. 70:1308
In CaliforniaBankersAssociation v. Shultz,9 4 banks and depositors

challenged federal recordkeeping and reporting requirements. The
banks based some of their challenges on alleged violation of the deposi-
tors' rights, although the depositors before the Court also asserted their
own rights. The Court refused to allow the banks to strengthen their
claims by asserting depositors' rights.9 5
This is the proper result, because it is clear that the rights of the
depositors had to be judged by different substantive standards than the
rights of the banks. Thus, the banks' own rights could not have been
violated; even given a harm based on the depositor-bank relationship
(which appears not to be the case), the bank was not asserting the same
claims the depositors would have asserted had they been in court. For
example, the banks had tried to argue that requirements that they
maintain records of their customers' identities and make microfilm cop-
ies of checks drawn in excess of one hundred dollars undercut a deposi-
tor's right effectively to challenge a third-party summons issued by the
Internal Revenue Service. The Court held that these requirements did
not violate the banks' due process rights, 96 saying that "whatever wrong
such a result might work on a depositor, it works no injury to his
bank."9 7 The Court thus forced the banks attempting to avoid the ap-
plication of the requirements to assert only their own rights-a proper
limitation, because the banks' rights were not similar to their deposi-
tors' rights.
How is this case different from Craigv. Boren,98 where the plaintiff
should have prevailed on the ground that if the state could not constitu-
tionally keep eighteen to twenty year old males from buying beer, it
could not constitutionally keep her from selling it to them? Why could
the banks not make the case here that the state's imposition of the re-
quirement was unjustified as to the depositors, and that therefore the
state could not force the banks to keep the records in the first place?
The answer is that the banks could not argue that all the depositors had
a substantive constitutional right to be free from the required record-
keeping. At most, individual depositors might be able to defend suc-
cessfully against future IRS summonses by challenging the
recordkeeping requirement on due process grounds. Even if some indi-
vidual depositor were able to prevent the summons, however, it would
still be constitutional to require the banks to maintain the records gen-
erally. This is because the banks, not being subject to the possibility of
94. 416 U.S. 21 (1974).
95. The Court recognized that most of the claims asserted on behalf of the depositors were
premature at that time. Id. at 51-52.
96. Id. at 49.
97. Id. at 51.
98. 429 U.S. 190 (1976).
1982] CONSTITUTIONAL JUS TERTH1 1337
an IRS summons, did not even have a claim that the requirements
might in some future action be declared invalid as to them. It follows
that because the banks themselves could never be subject to proceed-
ings against them or to adverse consequences as a result of the records
they were being required to keep, they had no due process claim to
challenge the requirement. The Court's holding was consistent with
my proposed rule that litigants may stand only on their own rights.
In Warth v. Se/din,9 9 plaintiffs challenged the zoning practices of
Penfield, a suburb of the City of Rochester. Some of the plaintiffs were
Rochester taxpayers, who alleged that they were injured by Penfield's
exclusionary zoning practices because those practices forced Rochester
to provide more low and moderate income housing, which in turn re-
duced the city's tax base and required its taxpayers to assume an in-
creased tax burden in order to finance essential public services.
Another plaintiff, an association whose members were Penfield resi-
dents, alleged that the exclusionary zoning practices deprived its mem-
bers of the benefits of living in a racially and ethnically integrated
community.
The Court held that these plaintiffs were attempting to assert
third-party rights, and that they could not do so. The Court said that
the Rochester taxpayers could not challenge the exclusionary zoning
practices, because they had no right to be free from the incidentally
damaging practices of neighboring towns,'0 and that there was no ba-
sis for permitting them to assert the rights of the excluded low-income
persons.' 0 ' As to the Penfield residents, the Court noted that they had
not alleged the statutory or constitutional right to live in a racially and
ethnically integrated community, 0 2 so that their contention was only
that they had been harmed "indirectly" by the exclusion of others.
Further, no protected contractual or other relationship existed between
Penfield residents and those allegedly excluded from the town, so that
no impermissible interference with such a relationship could be
shown.'0 3 The Court concluded that these plaintiffs were "attempt[ing]
to raise putative rights of third parties," and that "none of the excep-
tions that allow such claims is present here.'
Once again, the result is consistent with a rule that parties must
prevail by asserting their own rights. The litigants failed because they
could not assert sufficient rights of their own. Even if third-party righis
99. 422 U.S. 490 (1975).

100. Id. at 509-10.
101. Id. at 512-14.
102. 422 U.S. at 513.
103. Id. at 514 n.22.
104. Id. at 514.
were affected by the Penfield scheme, the violation of such rights would
have been immaterial to a determination of plaintiffs' claims, because
the plaintiffs' claims and the third-party claims they sought to assert
had to be judged by different substantive criteria. The Rochester tax-
payers had no substantive right to be free from any adjoining munici-
pality's action that could increase their tax burden, so that the exclusion
of low-income people from Penfield, even if unconstitutional, was not
relevant to a determination of any claims of the Rochester taxpayers.
The association representing Penfield residents did not allege that it
had a statutory or constitutional right to live in a racially or ethnically
integrated community, 105 so to litigate the question of whether the
Penfield ordinance would have violated that right would have been
inappropriate.
The results of the cases in which litigants could not assert third-
party rights, then, can be explained simply by my substantive hypothe-
sis. Because the litigants' and the third parties' rights were either dis-
similar or unrelated, in none of these cases was the alleged violation of
third parties' constitutional rights relevant to the determination of the
litigants' constitutional claims. 0 6 The substantive dissimilarity or unre-
latedness of the litigants' and the third parties' claims meant that the
litigants did not suffer violations of their own constitutional rights as a
result of the challenged laws' applications, regardless of their effects on
third parties.
A summary of this lengthy Section is in order. I have argued that
in all of the cases in which litigants sought to assert third-party rights,
the results can be explained in terms of the substantive hypothesis ad-
vanced here. First, the Court's rules as to facial challenges are congru-
ent with a theory of substantive rights: a party will succeed if he can
show that he has a substantive right to be free from the application of
the law.
Second, in the cases in which litigants want to assert that third
parties will be hurt by application of the law to the party in court, the
105. The Penfield residents who were members of the plaintiff association probably could
have alleged a statutory right to interracial associations in the housing context, see Gladstone
Realtors v. Village of Bellwood, 441 U.S. 91, 95 (1979); but if they had done so, they could have
challenged the practices only on the ground that the practices constituted racial discrimination.
106. It did not seem worthwhile to test all of the older cases where jus tertii standing was
denied. A review of at least some of them, however, does support the hypothesis. For example, in
Missouri, K. & T. Ry. v. Cade, 233 U.S. 642 (1914), and in Rosenthal v. New York, 226 U.S. 260
(1912), dircussedin Jus Terti, supra note 1, at 634-35, parties subject to criminal and civil liability
respectively under state laws contended that the laws denied equal protection to potential subjects
of the laws who were not included within their coverage. But even if the laws denied equal pro-
tection (which was highly unlikely), they would not necessarily violate the constitutional rights of
the defendants. The defendants still could constitutionally be subject to liability for the harm that
they caused.
results may similarly be seen in terms of substantive rights. Where the

Court thought it was permitting the assertion of jus tertii and invali-
dated a challenged law or government action, the law actually violated
the rights of the party before the Court. In the cases where a perceived
assertion of jus tertii was permitted, but the challenged law or govern-
mental action was held not to violate the rights of the third parties, for
the same reasons it did not violate the litigant's rights either. And in
the few cases where the Court did not allow the assertion of jus tertii,
the challenged law or government action did not violate the litigant's
right. Because the litigant's and the third parties' rights were substan-
tively dissimilar or unrelated, the alleged violation of third-party rights
was irrelevant to a determination of the litigant's constitutional claim.
It is proper, therefore, to maintain that in practice the Court has
not permitted the assertion of jus tertii. The operative principle is in
fact that a litigant can prevail only when the challenged law or govern-
mental action actually violates his own rights or is otherwise invalid as
applied to him.
III
THE RECONCILIATION OF DOCTRINE AND RESULTS
It is appropriate to ask here whether this analysis really signifies

anything. I have first undertaken to demonstrate that the Court's ap-
proach to the assertion ofjus tertii in terms of "standing" is analytically
unsound, and that as a general proposition there is no reason to allow a
party to prevail in constitutional litigation by asserting third-party
rights. I have then turned around and argued that in retrospect the
Court has not really permitted the assertion of jus tertii, and that the
results of the cases can be explained consistently with the thesis of sub-
stantive rights advanced here. If the Court has really reached the right
results, even if for the wrong reasons, is there any need to reformulate
doctrine so as to reconcile doctrine with results?
I submit that there is. First, if the Court accepted my thesis, it
could stop viewing the assertion of jus tertii as a mere procedural hur-
dle in constitutional litigation. There would no longer be any issue as
to whether litigants could prevail by asserting third-parties' rights, and
the focus would be solely and properly on each litigant's own constitu-
tional claims.
Second, because of the analytical unsoundness of the Court's pres-
ent approach, there is no guarantee that the Court, or the lower federal
courts,10 7 will continue to reach the right results.10 The principle that
a party must prevail in constitutional litigation only by asserting his
107. I have not investigated the results reached by the lower federal courts in cases involving
own rights is important, °9 and should be expressly recognized without

qualification. As a noted constitutional scholar has observed in an-
other context, it is "critically important that we get the questions right
and the answers right, because constitutional law is written in concrete
and is not easily washed out by rain or tears."'' 0
Reformulating doctrine in the manner that I have suggested will
help us get the question right. If there is no reason for permitting a
party to prevail in constitutional litigation by asserting violation of
third-party rights, constitutional doctrine should not be structured in
such a way that would even theoretically allow such a result. As long
as there is a recognized possibility that a litigant may assert others'
rights by falling into one of the exceptions that the Court has created,
there is also the danger that in some particular case a litigant will fail to
assert his own rights or that the Court, by refusing to look at some
issues of third-party rights in Category I cases, will fail to invalidate a
law or governmental action that in fact violates the litigant's rights."'t
Incorporating my thesis into constitutional doctrine will eliminate these
dangers, and will make it more likely that the Court will continue to
reach sound results that can be explained in an analytically and doctri-
nally consistent manner.
Relevant examples of unsound results produced by not getting the
questions right are presented by cases in which the Court has improp-
erly focused on the "personal" nature of the privilege against self-in-
crimination, and therefore has failed to relate a potential violation of a
third party's self-incrimination rights to the constitutional challenge
presented by the party before the Court.
In Communist Party v. Subversive Activities Control Board,'"2 in
which the Court first considered the constitutionality of registration re-
quirements imposed against the Communist Party and its members, the
plaintiff party contended that the registration requirements could not
be imposed consistent with the privilege against self-incrimination, be-
the assertion of constitutional jus tertii and have no opinion on whether the lower federal courts,
like the Supreme Court, generally reach the right result for the wrong reason.
108. In Singleton v. Wulff, 428 U.S. 106 (1976), for example, the Court split five to four on the
question of whether the physicians should have been able to assert their patients' rights (which in
actuality were their own equal protection rights). And if the dissenting viewpoint of Chief Justice
Burger had prevailed in Craig v. Boren, 429 U.S. 190 (1976), the Court would not have invali-
dated the statute in that case.
109. As evidenced by the fact that the Court continues to insist that the assertion ofjus tertii is
narrowly limited. See Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 80 (1978).
110. Dixon, Bakke: A ConstitutionalAnalysis,67 CALIF. L. REv. 69, 70 (1979).
11l. In Singleton v. Wulff, for example, it was not apparent to the Court that the physicians
were really relying on their own equal protection rights; and in Craigv. Boren, it did not seem as
though the seller was relying on her own due process rights. In both cases, there were dissents to
the Court's allowance of the assertion ofjus tertii.
112. 367 U.S. 1 (1961).
1982] CONSTITUTIONAL JUS TERTII
cause filing a registration statement forces the incriminating admission

that the registrant is a party member.1 13 The Court held that as to the
Communist Party itself, the self-incrimination question was prema-
turely raised, because the privilege could only be claimed by an af-
fected individual in an enforcement proceeding for failing to
register." 4 The Court also refused to look to the party's claims regard-
ing potential party members, ostensibly on the same prematurity
ground.
The dissenting Justices, however, related the members' self-in-
crimination claim to the Communist Party's constitutional claim. As
Justice Douglas stated: "[A]n attack is properly made on the incrimi-
nating features of the statute by the petitioner, who is commanded to
5 This was the proper approach, because the party was -not
register.""
trying to assert potential members' privilege against self-incrimination
for the sole purpose of protecting the potential members' rights. The
party was challenging the registration requirements as violative of its
own rights, and one of its grounds of attack dealt with the relationship
of the privilege against self-incrimination to those requirements. The
fact that no person would be able to register without violating his own
privilege against self-incrimination showed that the regulatory scheme
was unreasonable and violated due process. The party therefore
should have been able to assert the claims based on the effect of the
registration requirement
16
on an individual's privilege against self-
incrimination.
The subsequent history of the case confirms this conclusion. The
party did not register, and proceedings were brought against persons
alleged to be party members to require them to register under the
"membership registration" provisions of the Act. In Albertson v. Sub-
113. The Court had previously held that such an admission was incriminating. Blau v.
United States, 340 U.S. 159 (1950).
114. 367 U.S. at 106-10.
115. Id. at 188 (Douglas, J., dissenting). Similarly, as Justice Brennan noted, "[A] party has
been allowed to assert the constitutional rights of another person not before the Court as a named
party in a variety of situations where the effect of the challenged action on himself is derivative
from the impact on the other person." Id. at 193 (Brennan, J., dissenting in part).
116. Communist Party looks at first blush like California Bankers Ass'n v. Schultz, 416 U.S.
21(1974). How can I criticize Communist Party while I defend California Bankers? See supra
notes 94-97 and accompanying text. The answer is that the Communist Party itself was subject to
sanction for failure to register, and therefore had a right of its own to assert that it should be free
from the registration requirement. The Court recognized this right, but found that it was prema-
turely raised. In Caiffornia Bankers, by contrast, the banks were not subject to actions against
them based on the contents of the records they were required to keep. The banks therefore had no
right to claim that in the event of such actions, the requirements they challenged would work to
violate their rights. My judgments of the two cases are consistent, as they both look to the sub-
stantive rights of the paly. before the Court.
versiveActivities ControlBoard,1 7 decided in 1965, the Court held that

the registration requirement violated party members' privilege against
self-incrimination. This set the stage for a federal court of appeals'
1967 decision in Communist Party of the United States v. United
States.' 8 The party had been convicted below for failing to register as
required, and was heavily fined. The previous cases dictated that the
party had a duty to register, but that no individual could be required to
file the necessary registration statement because of the privilege against
self-incrimination.' 9 The circuit court recognized that something was
constitutionally wrong with this regulatory scheme, and invalidated the
registration requirements. The court noted that "the legislative scheme
has a flavor of irrationality in the due process sense,' 20 but grounded
its holding on the interaction of the privilege against self-incrimination
with the first amendment's guarantee of political association.' 2 '
I submit that the "flavor of irrationality in the due process sense"
furnished the proper basis for holding the registration requirements
constitutionally invalid. Because no individual could be compelled to
register as a member of the Communist Party consistent with the privi-
lege against self-incrimination, the party as an organization could not,
consistent with due process, be punished for having failed to register.
The same issue was presented in Communist Party of the UnitedStates
v. Subversive Activities Control Board 22 but the Supreme Court did
not deal with it at that time. Focusing on the inability of the party to
assert prematurely any self-incrimination rights, it failed to see the con-
nection between the self-incrimination rights of the party's members
and the question of whether the regulatory scheme violated the due
process rights of the party itself.' 23 If the Court had considered this
question in 1961, and had held that the registration provisions could
not be complied with by any individual consistent with the privilege
against self-incrimination, the irrationality and unconstitutionality of
the regulatory scheme would have been as abundantly clear then as it
was to the District of Columbia Circuit in 1967.
117. 382 U.S. 70, 77-79 (1965).

118. 384 F.2d 957 (D.C. Cir. 1967).
119. As the circuit court stated: "It [the Party] has been commanded by the Congress, on pain
of criminal punishment, to come forward and reveal its affairs, but the Court has said that, in the
climate of criminality created by other legislation, the persons who could accomplish those revela-
tions need not do so by reason of the Fifth Amendment." Id. at 965.
120. Id.
121. Id.
122. 367 U.S. 1 (1961).
123. Although the officers had not yet refused to register the Party, because the Party itself
was already under an order to register, the constitutionality of the regulatory scheme would seem
to have been ripe for determination at that time. See the discussion of this point by Justice Bren-
nan, 367 U.S. at 194 (Brennan, J., dissenting).
Another case in which the Court's emphasis on the "personal" na-

ture of the privilege against self-incrimination and the resulting inabil-
ity of a litigant to assert another's self-incrimination rights may have
obscured the real issue is CampbellPaintingCorp. v. Reid.124 In Camp-
bell Painting,a family-owned painting corporation sought to challenge
a five-year suspension of public contracts as an unconstitutional re-
straint on the privilege against self-incrimination. The suspension had
been imposed pursuant to statute when the corporation's president re-
fused to waive the privilege prior to testifying before a grand jury in-
vestigating bid-rigging of contracts. In refusing to pass on the
corporation's constitutional claim, the Court noted that the privilege
against self-incrimination could not be invoked by a corporation and
concluded that "[i]f a corporation cannot avail itself of the privilege
against self-incrimination, it cannot take advantage of the claimed in-
validity of the penalty imposed '2 5
for refusal of an individual, its presi-
dent, to waive the privilege."'
In a later case, however, the Court held that same law to be uncon-
stitutional when applied to deny a public contract to an individual who
had invoked the privilege while testifying before the grand jury.2 6 If it
is unconstitutional for the state to deny public contracts to an individ-
ual who has invoked the privilege while testifying, it is unconstitutional
for the state to deny a public contract to a corporation whose officer
had invoked the same privilege. While a corporation may not have
self-incrimination rights, it does have due process and equal protection
rights, and a state cannot arbitrarily deprive a corporation of the op-
portunity to contract with public authorities. The question in Campbell
Painting should properly have been seen as whether the disqualifica-
tion of the corporation was arbitrary and hence unconstitutional. The
fact that the basis for the disqualification was the officer's assertion of
the privilege against self-incrimination was relevant to the constitu-
tional inquiry. The Court's misperception of the issue caused it to deny
relief to a deserving litigant.
In both Communist Party and Campbell Painting, the Court, by
viewing the litigants' claims as attempts to assert the substantively dif-
ferent rights of third parties and by refusing to allow their assertion, let
stand laws that clearly violated the constitutional rights of the party
before the Court. If there had been no procedural concept of the asser-
tion of jus tertii, the Court would have been in a better position to
124. 392 U.S. 286 (1968).

125. Id. at 289. The dissent argued that by penalizing the family corporation for the former
president's invocation of the privilege, the state was penalizing the former president and thus was
doing indirectly what it could not do directly. Id. at 291-92 (Douglas, J., dissenting).
126. Lefkowitz v. Turley, 414 U.S. 70, 84-85 (1973).
1344 CALIFORNIA LAW REVIEW
assess the relationship between the violation of third-party rights and

the litigants' own constitutional claims. In both of these cases, the vio-
lation of third-party rights was directly relevant to establish that the
challenged law violated the litigant's constitutional rights as well.
As these examples indicate, it is indeed necessary to reformulate
doctrine and to reconcile doctrine with results. Eliminating a proce-
dural concept of the assertion of jus tertii will ensure that in constitu-
tional litigation, the focus will be where it belongs-on the substantive
rights of the party who is before the Court.
CONCLUSION
I have argued that assertion of constitutional jus tertii should not

be permitted. To allow a party to prevail on the ground that the chal-
lenged law or government action violates third parties' rights is incon-
sistent with the principle that the rights guaranteed by the Constitution
are applied to individuals and may be interpreted differently in differ-
ent situations. A party should be able to prevail in constitutional litiga-
tion only if the challenged law or government action violates his own
rights.
I have further argued that, despite the development of rules some-
times allowing the assertion of constitutional jus tertii, the results of the
Court's "standing to assert jus tertii" cases can be explained in terms of
the substantive thesis of this Article. It is time both to reformulate doe-
trine and to reconcile doctrine with results. It is time for the Court to
abandon the concept of the standing to assert jus tertii and to make it
clear that in constitutional litigation a party must stand on his own
rights alone.

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California Law Review

Volume 70 | Issue 6 Article 1

Assertion of Constitutional Jus Tertii: A

Follow this and additional works at: https://scholarship.law.berkeley.edu/californialawreview

Link to publisher version (DOI)

The Assertion of Constitutional Jus

Some years ago I undertook to investigate constitutional jus tertii,

7. Jus Terlil, supra note 1, at 612-26.

9. Jus Teriji, supra note 1, at 613.

would not allow litigants to assert third-party rights unless it is imprac-

2. Recent Cases and the FactorDoctrine

establish her claim of unconstitutionality of the age-sex differential. 25

25. Id. at 192-93.

B. The Fallacy of "Standing" to Assert ConstitutionalJus Tertii

eral courts. 33 Third, the rules of standing necessarily distinguish be-

rest of this Section attempts to explain the specific source of the

C. The Absence of Justfcationfor the Assertion of ConstitutionalJus

39. 429 U.S. 190 (1976).

justification for allowing litigants to stand on other parties' rights. Ad-

litigant's own constitutional or substantive right to be free from invalid

A. Challenges to Laws "On Their Face"

1 The Non-Expression Situation

gant, in turn, has a substantive right to avoid sanction or the possibility

46. 378 U.S. 500 (1964).

according to my substantive hypothesis, is as follows. If there is a valid

2 The Expression Situation

Where a litigant mounts a facial challenge to a law that restricts

from having a chilling effect on exercise of first amendment rights.5 8

58. As I explained in my earlier article:

B. Adverse Effect on Third-PartyRightsfrom the ChallengedLaw or

. The Cases in Which the Assertion of Jus Tertii Was Permitted

own rights. As regards the interaction between the violation of third-

assert, and the harm alleged stemmed from the doctor-patient

have been that the petitioner's action in distributing the contraceptives

based classification that violated* the equal protection rights of the

84. Id. at 204.

But awarding damages for breach of the racially restrictive covenant

or governmental action, it could have done so on the ground that it

In CaliforniaBankersAssociation v. Shultz,9 4 banks and depositors

99. 422 U.S. 490 (1975).

results may similarly be seen in terms of substantive rights. Where the

It is appropriate to ask here whether this analysis really signifies

own rights is important, °9 and should be expressly recognized without

cause filing a registration statement forces the incriminating admission

versiveActivities ControlBoard,1 7 decided in 1965, the Court held that

117. 382 U.S. 70, 77-79 (1965).

Another case in which the Court's emphasis on the "personal" na-

124. 392 U.S. 286 (1968).

assess the relationship between the violation of third-party rights and

I have argued that assertion of constitutional jus tertii should not

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