Does history defeat standing doctrine?

• Author: Woolhandler, Ann

According to the Supreme Court, the Federal Constitution limits not only the types of matters that federal courts can adjudicate, but also the parties who can bring those matters before them. In particular, the Court has held that private citizens who have suffered no concrete private injury lack standing to ask federal courts to redress diffuse harms to the public at large. (1) When such harms are justiciable at all, the proper party plaintiff is the public itself, represented by an authorized officer of the government.

Although the Court claims historical support for these ideas, academic critics insist that the law of standing is a recent "invention" of federal judges. (2) Indeed, it is frequently said that "[t]here was no doctrine of standing prior to the middle of the twentieth century." (3) According to this view, the forms of action did much of the work of standing, defining when a plaintiff had the type of injury that, together with the defendant's breach of duty, would support a claim for relief. But judges did not otherwise inquire into standing; a court would deal with standing-related concerns simply by asking "whether the matter before it fit one of the recognized forms of action." (4) Only in the twentieth century, so the story goes, did a "distinctive body of standing doctrine" develop. (5)

For the Supreme Court's detractors, this claim has an important corollary. If the dominant view of justiciability from the Framing until the mid-twentieth century focused only on whether claims fit into the forms recognized by law and did not entail any separate notion of standing, then it more easily follows that the modern Court should not read standing doctrine into the Federal Constitution. According to widely accepted academic critiques, the Court is flatly wrong to claim historical support for a constitutional requirement of standing, and particularly for the requirement that private parties show some sort of individualized injury before they can proceed in federal court. (6) Building on prior work by Louis Jaffe and Raoul Berger, (7) an impressive article by Steven Winter suggests that the principle of public control over public rights has only recently become dogma, and that earlier eras saw no constitutional objections to "the adjudication of group rights at the behest of any member of the public, without regard to the necessity of personal interest, injury, or standing." (8) Cass Sunstein similarly condemns the twentieth-century Supreme Court for importing what he calls "a private-law model of standing" into the Constitution. (9) Drawing primarily upon mandamus practice and qui tam statutes, the critics treat history as firmly establishing the constitutionality of "the 'standingless' public action or 'private attorney general' model that modern standing law is designed to thwart." (10)

This Article sees the history differently. We do not claim that history compels acceptance of the modern Supreme Court's vision of standing, or that the constitutional nature of standing doctrine was crystal clear from the moment of the Founding on. The subsistence of qui tam actions alone might be enough to refute any such suggestion. We do, however, argue that history does not defeat standing doctrine; the notion of standing is not an innovation, and its constitutionalization does not contradict a settled historical consensus about the Constitution's meaning.

To begin with, there was an active law of standing in the eighteenth and nineteenth centuries. To be sure, early American courts did not use the term "standing" much, and modern research tools might therefore convince one that the concept did not exist. (11) But eighteenth--and nineteenth-century courts were well aware of the need for proper parties, and they linked that issue to the distinction between public and private rights. Courts regularly designated some areas of litigation as being under public control and others as being under private control. Within the area of private control, moreover, courts paid close attention to whether the correct private parties were before them.

It is certainly true, as William Fletcher and other commentators have noted, that standing requirements often can be rephrased in terms of the elements of a cause of action. (12) But the issue of the proper parties to allege public and private injuries cut across various causes of action, and it also limited the arguments available even to people with valid causes of action. Because English precedents were mixed, moreover, American courts that resolved this issue were not always simply following well-established forms. In favoring a private-injury requirement for private litigation, their decisions were influenced by American ideas about the proper role of the judiciary, its relationship to the political branches of the state and federal governments, and the legitimate allocations of public and private power.

Contrary to the claims of modern critics, moreover, the nineteenth-century Supreme Court did see a constitutional dimension to standing doctrine. Admittedly, early cases often did not specify the extent to which standing doctrine was simply a matter of "general law" and the extent to which the Federal Constitution incorporated it. But in the cases dearest to the hearts of the standing critics--actions against federal and state governmental officials--the nineteenth-century Court explicitly discussed standing in constitutional terms. The Court's language, moreover, did not suggest that the constitutional issue would always vanish if only a legislature would give the plaintiff a statutory right to sue. Rather, with the exception of qui tam (which we discuss more thoroughly below), such indications as there were suggested that a legislatively created cause of action would not necessarily be enough for standing.

Part I discusses some general manifestations of judicial concern for maintaining the distinctions between proper litigants of public and private rights. Part II shows that the Supreme Court saw these distinctions as having constitutional dimensions. Part III discusses whether the constitutional concerns would evanesce with congressional provision for a cause of action.

1. THE "GENERAL LAW" OF STANDING

   1. The Traditional Distinction Between Public and Private Rights

      Because much of the traditional discourse about standing was cast in terms of the distinction between "public rights" and "private rights," we start with some working definitions of these concepts. These definitions are based on historically recognized categories, but also have modern currency.

      Public rights are those that belong to the body politic. (13) They may include interests generally shared, such as those in the free navigation of waterways, passage on public highways, and general compliance with regulatory law. (14) The penal law (which includes not only criminal law but also fines and forfeitures recoverable through civil process) also defines various public rights. (15) The penalties for violations of those rights are not measured strictly by private loss; like public law more generally, penal law focuses on vindicating the claims of the public rather than on compensating individuals. (16)

      Private rights, by contrast, are held by discrete individuals. Rights at the core of this category include an individual's common law rights in property and bodily integrity, as well as in enforcing contracts. While penal law also is concerned with invasions of private property and person, private rights may generally be distinguished by private law's focus on individual compensation (or the avoidance of private loss by injunctive remedies).

      Of course, legislatures have considerable power to create new rights and to redefine existing rights in ways that affect whether they are public or private. Legislatures may add to public law by enacting new regulatory and criminal statutes, to be enforced by governmental officials. Similarly, legislatures may create statutory duties or "entitlements" (17) owed to private persons; these entitlements can be treated as private rights for standing purposes, and the legislature may permit individuals to seek compensation for losses caused by their breach. (18) In connection with a claim for private compensation, individuals may also be accorded the ability to collect supracompensatory penalties such as treble damages, even though these awards concededly have "penal" or public aspects. (19)

      Still, legislatures do not have total control over the line between public and private rights. Both state and federal constitutions limit the legislature's ability to assert public control over certain kinds of core private rights. Conversely, there are also constitutional constraints on privatizing certain core public rights.

   2. Standing and the Public/Private Distinction

      The question of which parties may properly come to court to vindicate these different kinds of legal rights is central to the issue of standing. In trying to address that question, American courts have traditionally drawn partly upon general principles of jurisprudence and partly upon distinctively American ideas about popular sovereignty, limited government, and the separation of powers. To the extent that these ideas played out differently in different jurisdictions, we will focus on the practices of the federal courts. But it is worth noting at the outset the ubiquity of the twin ideas of public control over public rights and private control over private rights.

      Critics of modern standing doctrine maintain that in the early Republic, "American law provided several constitutionally acceptable models for the adjudication of group rights at the behest of any member of the public...." (20) To the extent that these alternative models existed, however, they were areas of contest. As a general matter, moreover, the requirements of public control over public rights and private control over private rights predominated in...