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Article III, Section 2, Clause 1 — Historical Background on Cases or Controversies Requirement

Article III, Section 2, Clause 1

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

ArtIII.S2.C1.2 Historical Background on Cases or Controversies Requirement

Article III of the Constitution provides that “the judicial Power” of the United States “shall extend to” certain enumerated categories of “Cases” and “Controversies.”1 As later essays in this treatise discuss, the Supreme Court has interpreted this “Case or Controversy” language to impose significant restrictions on the federal courts’ power to adjudicate disputes,2 such as the Article III standing doctrine,3 which forbids the Federal Judiciary from hearing cases in which the plaintiff lacks a personal stake in the outcome.4 In light of the importance of those limitations on the federal courts’ jurisdiction, this essay surveys available historical evidence illuminating what the Framers might have understood those words to mean.5 The essay thus discusses pre-Convention English judicial practice before recounting relevant exchanges during the Constitutional Convention and the ratification debates.6

Because the Framers drew upon their knowledge of English practice when designing the Constitution, the legal principles prevailing in England at the time of the Founding provide the starting point for understanding the “Case or Controversy” language’s historical origins.7 Some evidence suggests that English courts entertained a fairly broad array of disputes before the Founding, including certain cases intended to vindicate the public interest rather than merely the personal interests of the plaintiff himself. For example, a prominent English treatise from the seventeenth Century discusses a particular form of judicial relief that English courts could award at the behest of a “stranger”—i.e., one who was not a “party” to the action challenged in the case.8 Similarly, a case from 1741 suggests that some litigants could pursue certain lawsuits in English courts even if they possessed only a “remote” interest in the subject of the litigation.9 Other evidence, however, suggests that in certain contexts English courts demanded that litigants possess a direct personal stake in the subject matter of the litigation. For instance, in its discussion of a form of judicial relief known as the “writ of prohibition,” an English treatise from 1736 states that “no Man is [e]ntitled to a Prohibition unless he is in Danger of being injured by some Suit actually depending.”10 Similarly, in his Commentaries on the Laws of England, Sir William Blackstone wrote that no private person could sue a defendant for a public or common nuisance unless the nuisance caused that private person “some extraordinary damage.”11

Although the Convention records do not explicitly discuss why the Framers used the terms “Cases” and “Controversies” in Article III,12 at least three events during the Convention suggest that the Framers did not intend Article III to empower federal judges to adjudicate every type of dispute that came before them. For one, the Framers explicitly rejected proposals to authorize federal judges to review statutes before they became effective. On May 29, 1787, Edmund Randolph proposed that the President, along with “a convenient number of the National Judiciary,” would “compose a council of revision with authority to examine every act of the National Legislature before it shall operate.”13 The Framers ultimately voted to reject this proposal (or variations on it) three times during the Convention.14

The Framers also took no action15 on an August 20, 1787 proposal that would have granted “[e]ach branch of the Legislature, as well as the Supreme Executive,” the “authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions.”16 As a result of this proposal’s failure, the Constitution as ratified contains no provision authorizing the federal courts to issue advisory opinions.17

Perhaps the most illuminating exchange between the Framers about the justiciability of disputes occurred on August 27, 1787,18 when Dr. William Samuel Johnson proposed to extend the judicial power of the United States not just to cases arising under federal statutes, but also to cases arising under the Constitution itself.19 James Madison expressed concern that this proposal could grant the Judiciary too much power, and insisted that the federal courts’ jurisdiction should instead “be limited to cases of a Judiciary Nature” only.20 Dr. Johnson’s proposal nevertheless passed unanimously.21 The Convention records reflect that the Framers discounted Madison’s misgivings about granting the Federal Judiciary power over constitutional cases because the Framers “generally supposed” that the federal courts’ jurisdiction would be “constructively limited to cases of a Judiciary nature.”22 This exchange therefore suggests that there are some disputes that arise under federal law, yet are still outside the federal courts’ authority to adjudicate because they are not of “a Judiciary Nature.”23 The records of the Convention do not specify, however, what Madison and the other Framers understood “Judiciary Nature” to mean.24

Although the ratification debates that followed the Convention cast little light on the meaning of Article III’s “Case or Controversy” language, they do at least reveal a consensus that federal judges would operate within a limited sphere.25 Faced with Anti-Federalist criticisms that the Constitution would empower federal judges to “enlarge the sphere of their power beyond all bounds,”26 supporters of the Constitution argued in the Federalist Papers that “the judicial authority” would have “precise limits beyond which the federal courts cannot extend their jurisdiction.”27

Notes
  1. U.S. CONST. art. III § 2. ↩
  2. See ArtIII.S2.C1.4.1 Overview of Advisory Opinions. ↩
  3. See ArtIII.S2.C1.6.1 Overview of Standing. ↩
  4. See, e.g., Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018) (“[A] plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has ‘a personal stake in the outcome[.]’”) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). ↩
  5. This essay focuses on whether the Framers intended Article III’s “Case or Controversy” language to limit the justiciability of disputes in federal court. For analysis of the separate issue of whether and how the definition of “Case” may differ from the definition of “Controversy,” compare, e.g., Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 244 N.128 (1985) (suggesting that “Cases” and “Controversies” are “legally synonymous”), with, e.g., Robert J. Pushaw, Jr., Article III’s Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 NOTRE DAME L. REV. 447, 448–49, 531 (1994) (concluding “that the Framers used ‘cases’ and ‘controversy’ as distinct terms to convey different meanings”); See also ArtIII.S2.C1.11.1 Overview of Federal Question Jurisdiction (discussing the classes of “cases” and “controversies” established by Article III). ↩
  6. Scholars have debated whether the historical evidence discussed in this essay supports the prevailing judicial interpretation of Article III. Compare, e.g., Bruce J. Terris, Ex Nihilo—The Supreme Court’s Invention of Constitutional Standing, 45 ENVTL. L. 849, 849 (2015) (concluding that there is no historical evidence “that the Framers meant [Article III’s ‘case or controversy’ language] to require a showing of injury”), with, e.g., James Leonard & Joanne C. Brant, The Half-Open Door: Article III, The Injury-in-Fact Rule, and the Framers’ Plan for Federal Courts of Limited Jurisdiction, 54 RUTGERS L. REV. 1, 2 (2001) (“[G]iven the historical context, the contemporary injury-in-fact rule is an acceptable interpretation of Article III because it reflects not only the Framers’ likely concept of what the courts did, but also their view of the judicial role in maintaining the separation of powers.”), and Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 MICH. L. REV. 689, 691 (2004) (“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. . . . 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.”). ↩
  7. See Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J.) (“[T]he framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union.”); Raoul Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement?, 78 YALE L.J. 816, 816 (1969) (“[I]t is hardly to be doubted that the Framers contemplated resort to English practice for elucidation, and so the Supreme Court has often held.”). ↩
  8. See, e.g., EDWARD COKE, THE SECOND PART OF THE INSTITUTES OF THE LAWES OF ENGLAND 602 (1642) (“[T]he [K]ings [C]ourts that may award prohibitions, being informed either by the parties themselves, or by any stranger, that any [C]ourt [T]emporall or [E]cclesiasticall doth hold plea of that (whereof they have not jurisdiction) may lawfully prohibit the same.”) (emphasis added). ↩
  9. Att’y Gen. v. Bucknall [1741] 26 Eng. Rep. 600, 600 (“Any persons, tho’ the most remote in the contemplation of the charity, may be relators in an information. . . . It is not absolutely necessary that relators in an information for a charity, should be the persons principally interested.”). ↩
  10. 4 MATTHEW BACON, A NEW ABRIDGEMENT OF THE LAW 244 (1736). ↩
  11. See 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 219–20 (William Carey Jones ed., 1916) (“[T]he law gives no private remedy for anything but a private wrong. Therefore, no action lies for a public or common nuisance, but an indictment only: because the damage being common to all the king’s subjects, no one can assign his particular proportion of it: or if he could, it would be extremely hard, if every subject in the kingdom were allowed to harass the offender with separate actions. For this reason, no person, natural or corporate, can have an action for a public nuisance, or punish it; but only the king in his public capacity of supreme governor, and pater-familias of the kingdom. . . . Yet this rule admits of one exception; where a private person suffers some extraordinary damage, beyond the rest of the king’s subjects, by a public nuisance; in which case he shall have a private satisfaction by action.”). See also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1551–52 (2016) (Thomas, J., concurring) (analyzing this excerpt from Blackstone’s Commentaries in a modern Article III standing case). ↩
  12. See, e.g., Evan Tsen Lee & Josephine Mason Ellis, The Standing Doctrine’s Dirty Little Secret, 107 NW. U. L. REV. 169, 232 (2012) (“There is scant evidence in the constitutional record regarding the drafting of what became the cases or language of Article III . . . the wording of ‘cases’ or ‘controversies’ seemed almost an afterthought.”); James Leonard & Joanne C. Brant, The Half-Open Door: Article III, The Injury-in-Fact Rule, and the Framers’ Plan for Federal Courts of Limited Jurisdiction, 54 RUTGERS L. REV. 1, 38 (2001) (“[T]he Framers . . . said next to nothing about the meaning of the case and controversy language in Article III.”); Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 MICH. L. REV. 163, 173 (1992) (“There is relatively little explicit material on the Framers’ conception of ‘case or controversy.’”). ↩
  13. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 21 (Max Farrand ed., 1911) [FARRAND’S RECORDS]. ↩
  14. Id. at 140; 2 , id., at 298. ↩
  15. See Russell Wheeler, Extrajudicial Activities of the Early Supreme Court, 1973 SUP. CT. REV. 123, 129 (“[T]he Constitutional Convention did not reject [this] motion, as is often assumed. The motion simply did not emerge from the Committee of Detail, to which he submitted it.”) (footnote omitted); Raoul Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement?, 78 YALE L.J. 816, 830 n.72 (1969) (stating that the advisory opinion proposal “was referred to the Committee o[f] Detail and was heard of no more”). ↩
  16. 2 FARRAND’S RECORDS, supra note 13, at 341. ↩
  17. Compare U.S. CONST. art. II, § 2 (authorizing the President to “require the [o]pinion, in writing, of the principal [o]fficer in each of the executive [d]epartments”) with U.S. CONST. art. III (containing no analogous provision authorizing the President to require the federal courts to issue advisory opinions). See also ArtIII.S2.C1.4.1 Overview of Advisory Opinions (defining “advisory opinions” and explaining that the Supreme Court has interpreted Article III to forbid federal courts from issuing them). ↩
  18. See 2 FARRAND’S RECORDS, supra note 13, at 430. ↩
  19. Id. (“Docr. Johnson moved to insert the words ‘this Constitution and the’ before the word ‘laws.’”). ↩
  20. Id. (“Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”). ↩
  21. Id. (“The motion of Docr. Johnson was agreed to nem: con:[.]”). ↩
  22. Id. ↩
  23. Leonard & Brant, supra note 6, at 39 (arguing that “the reference to ‘Judiciary Nature’” in the Convention records reflects “that the Framers believed that there were constitutional restrictions on the sort of cases that the federal courts could hear”). ↩
  24. See 2 FARRAND’S RECORDS, supra note 13, at 430. See also Leonard & Brant, supra note 6, at 39 (“[T]he reference to ‘Judiciary Nature’ is somewhat cryptic.”). ↩
  25. See, e.g., Jonathan T. Molot, Principled Minimalism: Restriking the Balance Between Judicial Minimalism and Neutral Principles, 90 VA. L. REV. 1753, 1761–63 (2004) (explaining that the Federalists and Anti-Federalists both agreed that “judicial intrusions into the political realm” should be “limited”). ↩
  26. Brutus No. XII pt. 1. See also Brutus No. XI (expressing concern that the federal courts would exceed their jurisdiction); Brutus No. XV (warning “that the supreme court under this constitution would be exalted above all other power in the government, and subject to no control”). ↩
  27. THE FEDERALIST NO. 83 (Alexander Hamilton). See also THE FEDERALIST NO. 48 (James Madison) (stating that federal judges would have their powers limited by “landmarks, still less uncertain” than the restrictions limiting the political branches); THE FEDERALIST NO. 78 (Alexander Hamilton) (arguing that the federal judiciary would be “the weakest of the three departments of power” in part because it would exercise “neither force nor will, but merely judgment”); THE FEDERALIST NO. 81 (Alexander Hamilton) (emphasizing the “comparative weakness” of the Judicial Branch). ↩