Originalism and Justiciability

Background

Standing and other justiciability doctrines, such as the political questions doctrine, can be major obstacles to public interest litigation and the vindication of constitutional liberties. Are these doctrines less about 1789 or 1868 and more about 20th-century policies of judicial restraint? What does originalism have to teach us about how these doctrines have developed, and how they might be reformed?

The Supreme Court has held that the judicial power is limited to “cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 774 (2000) (quotation omitted). Article III’s jurisdictional limits are designed, according to the Court, “to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013).

But scholars and jurists have debated whether the current state of standing doctrine—which requires a personalized concrete injury that is traceable to the defendant’s challenged actions and redressable by courts—has any footing in the original understanding of Article III. Some scholars, like Professor Cass Sunstein, have argued that this doctrine “has no support in the text or history of Article III” and “should not be accepted by any judges who are sincerely committed to the original understanding of the Constitution and judicial restraint.” Cass R. Sunstein, What’s Standing after Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163 (1992).

Others have argued that there is a consistent history going back to the founding and to English common-law courts that support personal injury as a common pre-condition to suit. See, e.g., Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004). Justice Clarence Thomas, for instance, takes the view that “[c]ommon-law courts more readily entertained suits from private plaintiffs who alleged a violation of their own rights, in contrast to private plaintiffs who asserted claims vindicating public rights.” Spokeo v. Robins, 576 U.S. 330, 343 (2016) (Thomas, J., concurring).

Pacific Legal Foundation and the New York University Journal of Law & Liberty seek papers expanding on this debate. The symposium aims to consider standing’s basis in original understanding and to extend the conversation to include other justiciability doctrines such as ripeness, political questions, immunity, and abstention. We also hope to explore whether the Second Founding might inform our understanding of justiciability doctrines.

Possible Topics

1. How do early post-ratification cases interpret the “cases or controversies” language in Article III?
2. Do purely prudential justiciability rules violate the federal courts’ jurisdictional mandate?
3. Did modern standing doctrine emerge as a post-Founding innovation, or does it have originalist roots?
4. Does the Supreme Court’s refusal to issue advisory opinions in 1793 serve as a solid originalist foundation for the current state of the standing doctrine?
5. What justiciability rules governed jurisdiction in the colonial era or the Reconstruction Era, and do they resemble jurisdictional doctrines that we see today?
6. Were the Framers and early jurists during the First and Second Foundings concerned about courts manipulating their jurisdiction to avoid contentious issues, and how do such concerns help us understand the constitutional foundation for justiciability doctrines today?
7. Do long-standing “stranger” suits like qui tam and mandamus actions indicate that the modern standing doctrine is unmoored from original understanding?
8. Do intangible harms—dignitary, stigmatic, aesthetic, offended-observer, and so on— have a basis in the original understanding of Article III?
9. Do ripeness rules such as the “final decision” requirement have a basis in founding-era judicial practice?
10. Do the debates and writings around the Second Founding illuminate the original meaning of today’s justiciability doctrines?
11. How should the Second Founding inform the approach to sovereign immunity?

Research Proposal Submission Details

Please submit a brief research proposal that describes your thesis and how your research will contribute to the legal issues described above.

Proposals should be submitted by August 1 to Ethan Blevins at . Early proposal submission is encouraged, as proposals will be reviewed on a rolling basis, and approvals will allow authors to begin work early.

Final Paper Submission Details

Papers should be around 7500 words. Draft submissions are due two weeks before the symposium so we may circulate them to participants. Authors may revise their papers following the symposium, with final submissions due within two weeks to be published in the journal’s symposium issue.