"questions Involving National Peace and Harmony" or "injured Plaintiff Litigation"? the Original Meaning of "cases" in Article Iii of the Constitution
| Publication year | 2020 |
"Questions Involving National Peace and Harmony" or "Injured Plaintiff Litigation"? The Original Meaning of "Cases" in Article III of the Constitution
Haoshan Ren
Georgia State University, hren2@gsu.edu
Margaret Wood
Northern Arizona University, mkw57@nau.edu
Clark D. Cunningham
Georgia State University College of Law, cdcunningham@gsu.edu
Noor Abbady
Savannah College of Art & Design, noor.abbady@yahoo.com
Ute Römer
Georgia State University, uroemer@gsu.edu
Authors
Haoshan Ren, Margaret Wood, Clark D. Cunningham, Noor Abbady, Ute Römer, Heather Kuhn, and Jesse Egbert
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If a federal official is deliberately violating the Constitution, is it possible no federal court has the power to halt that conduct? Federal judges have been answering "yes" for more than a century—dismissing certain kinds of lawsuits alleging unconstitutional conduct by ruling the lawsuits were not "cases" as meant in the phrase "[t]he Judicial Power shall extend to all Cases" in Article III, Section Two, of the Constitution.1
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For example, in July 2019, the U.S. Court of Appeals for the Fourth Circuit dismissed a lawsuit that the State of Maryland and the District of Columbia brought against President Donald Trump claiming he is deliberately violating the Constitution's prohibition against receiving emoluments from foreign states.2 The lawsuit alleged that foreign governments pay substantial sums for using the Trump International Hotel in Washington D.C. and that President Trump is sole owner of the Trump Organization, which in turn owns that hotel.3 The court said: "[T]he District and Maryland's interest in constitutional governance is no more than a generalized grievance, insufficient to amount to a case or controversy within the meaning of Article III."4
In 1911, the United States Supreme Court declared: "[T]he exercise of the judicial power is limited to 'cases' and 'controversies.' . . . By cases and controversies are intended the claims of litigants . . . . The term implies the existence of present or possible adverse parties, whose contentions are submitted to the court for adjudication."5 The Supreme Court subsequently further specified the meaning of "case" within the meaning of Article III to include the following "essential core": a plaintiff who has suffered a concrete and particularized injury that is likely to be redressed by a judicial decision.6 Thus, at least in the civil setting, the Court has restricted the meaning of "cases" to adversary
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litigation initiated by a plaintiff with a personal and concrete injury—in brief, "injured plaintiff litigation."7
The claims of Maryland and the District of Columbia against President Trump were dismissed by the Fourth Circuit without consideration of the merits because, in the court's view, the plaintiffs had failed to show "concrete and particularized" injury that was different than the alleged harm suffered by all citizens if the President is corrupted by receipt of foreign payments.8 Failure to meet the Supreme Court's definition of "case" is described as a "lack of standing."9 Responding to the argument that if the District of Columbia and Maryland "could not obtain judicial review of [the President's] action, 'then as a practical matter no one can[,]"' the Fourth Circuit cited the answer provided in a 1974 Supreme Court decision: "[The] assumption that if [the plaintiffs] have no standing to sue, no one would have standing, is not a reason to find standing."10
The empirical research reported in this article suggests that this "injured plaintiff litigation" interpretation of the meaning of "cases" may be more narrow—perhaps indeed entirely different—than how the word in its Article III context would have been used and understood by those who drafted and ratified the Constitution.
For the first two months of a constitutional convention that lasted less than three-and-a-half months, various versions of what would eventually become Section Two of Article III consistently provided that federal courts should have the power to "hear and determine . . . questions which may involve the national peace and harmony."11 On July 18, 1787, the Convention unanimously adopted the following resolution proposed by James Madison: "[T]he
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jurisdiction of the national Judiciary shall extend to cases arising under laws passed by the general Legislature, and to such other questions as involve the National peace and harmony."12
The authors of this article, comprised of a research team of lawyers and linguists, used a variety of computer-aided methods for examining very large data sets of Founding Era texts to explore linguistic implications suggested to them by Madison's July 18 resolution. This research indicated that those who drafted and ratified the Constitution:
(1) Would have understood "cases arising under laws" to be a type or example of "questions as involve the National peace and harmony";
(2) Would have understood "such other questions" to be a more general category of jurisdiction than "cases arising under laws"; and
(3) Would not have understood "cases" as having a stable, inherent meaning such as "injured plaintiff litigation"—instead "cases" in each context of use in Article III would have been read as having a different meaning, constructed through its combination with accompanying words.13
I. Legal Context and Relevance of Linguistic Analysis
As famously stated by U.S. Supreme Court Justice Antonin Scalia in District of Columbia v. Heller, in interpreting the Constitution's text, courts "are guided by the principle that '[t]he Constitution was
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written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.'"14 As Justice Scalia explained in an equally famous speech, the focus of constitutional interpretation should not be "original intent" but rather "original meaning": "What was the most plausible meaning of the words of the Constitution to the society that adopted it—regardless of what the Framers might secretly have intended?"15 Justice Scalia quoted in support of this position, a letter written by James Madison, who has been described as the "master-builder of the [C]onstitution":16
[W]hatever respect may be thought due to the intention of the Convention, which prepared [and] proposed the Constitution, as presumptive evidence of the general understanding at the time of the language used, it must be kept in mind that the only authoritative intentions were those of the people of the States, as expressed thro[ugh] the Conventions which ratified the Constitution.17
In looking for "presumptive evidence of the general understanding at the time of the language used," courts have generally relied on dictionary definitions and selected quotations from texts dating from the period of ratification.18 This article presents a different approach by applying the tools of linguistic analysis to "big data" about how written language was used at the time of ratification.
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The science of linguistics has made dramatic progress in the past thirty years due to developments in computer technology, making it possible to acquire, store, and process large amounts of digitized data representing actual language use.19 Such a data set, when used for linguistic analysis, is called a corpus (plural: corpora).20 When properly executed, corpus-based linguistic research meets the scientific standards of generalizability, reliability, and validity.21
For empirical research into original meaning of the Constitution, the standard of generalizability is met by use of a corpus sufficiently large and varied that it represents—in the words of James Madison—the "language used . . . [by] the people of the States" when the state conventions ratified the Constitution.22 The authors have used the Corpus of Founding Era American English (COFEA).23 COFEA contains in digital form over 126,000 texts created between 1760 and 1799, totaling more than 136,800,000 words.24 The texts in COFEA come from six sources: the National Archive Founders Online, HeinOnline, Evans Early American Imprints from the Text Creation Partnership, Elliot-The Debates in the State Conventions on the Adoption of the Federal Constitution, Farrand-Records of the Federal Constitutional Convention of 1787, and the U.S. Statutes at Large from the first five Congresses.25 The sample of Evans Early American Imprints included in COFEA contains over 3,000 books, pamphlets,
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and other written materials published in America between 1760 and 1799.26 Founders Online is a free online resource maintained by the National Archives, which provides digital copies of over 90,000 records found in the papers of six major figures of the founding era: George Washington, Benjamin Franklin, John Adams, Thomas Jefferson, Alexander Hamilton, and James Madison.27 Founders Online contains official documents, diaries, and personal letters written by and to these six persons. HeinOnline contains over 300 legal materials published during the founding era; primarily federal and state statutes, executive department reports, and legal treatises.28
The reliability standard requires that a research method produce consistent results, allowing a different researcher applying the same method to duplicate the outcome. The results reported in this article can be replicated by anyone who applies the computerized search methods herein described to the identified databases.
Validity refers to how well the results from a method reflect real-world patterns. Validity was built into the research reported here by beginning with observations of systemic features of real language use in the...
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