One of the great achievements of the late Justice Antonin Scalia lies in his heartfelt insistence that key terms of the U.S. Constitution should be interpreted in accordance with their original public meaning. Most people think that this general invocation leads necessarily to a conservative jurisprudence on the major issues of the day. But nowhere is that connection more decisively repudiated than on the thorny question of who has standing to bring suit in federal courts under Article III. In this instance, the original public meaning of the relevant language of the Constitution calls for a far broader level of access to bring constitutional challenges in federal courts than is available under current law.
Like a good originalist, it is necessary to start with the key text of Article III, Section 2, which does not mince words when it states: “The judicial power shall extend to all cases, in law and equity,” after which it gives an enumeration of the types of cases covered. The key is figuring out what disputes are caught in this section’s sweeping language.
Originalism implores that we don’t ignore the words that are in the text; nor do we add words that are not there. In this instance, the word “standing” does not appear in Article III, Section 2, yet current doctrine smuggles it in. To Justice Scalia writing in Lujan v. Defenders of Wildlife, the doctrine of standing is a necessary outgrowth of the doctrine of separation of powers, where it serves as “an essential and unchanging part of the case-or-controversy requirement of Article III.”
But this cannot be right. Standing is not a peculiar creature of American constitutional law. As its Latin equivalent locus standi suggests, the term long antedates the American Constitution, and is only designed to make sure that in any court the plaintiff is an appropriate party to the case. To Justice Scalia that requirement is linked to the notion that the plaintiff suffers “an invasion of a legally protected interest which is (a) concrete and particularized,” and not just conjectural or hypothetical. But this supposed contrast does not exhaust all the relevant possibilities.
Nowhere in Lujan, or for that matter elsewhere in the Supreme Court’s tortured jurisprudence on standing, is any attention paid to the inclusion of the word “equity” in the opening phrase of Article III. Yet this term has immense significance both historically and analytically. At the time of the Constitution, some American courts were suspicious of the close connection between the English Courts of Equity and the abuse of royal in the person of the King’s Chancellor.
Knocking out equity courts within the states could temper that risk. But by the same token, it would make it impossible to issue the usual kinds of equity decrees issued by federal courts, such as injunctions. This power would include, for example, the kinds of orders that are given to individual members of collective organizations to enjoin actions that are beyond legal powers.
The very logic of these suits is that any one individual is treated as a representative of the group of which he or she is a part. In Frothingham v. Mellon, Justice Sutherland noted that “resident taxpayers may sue to enjoin an illegal use of the moneys of a municipal corporation,” but insisted that matters were different in the federal context because the harm to the citizen in the local sphere is “direct and immediate.”
The supposed line of distinction between federal and state actions is wholly illusory. There can be millions of citizens in a large city. The reason that the legal action should be allowed is that someone has to be allowed to bring a suit to stop illegal action where no single person has suffered compensable harm under tort or contract law. The real problem in all these cases is that coordination among diffuse shareholders, partners, and charitable members cannot be achieved at reasonable cost. So courts of equity fill the gap by allowing any single group member to initiate the lawsuit to overcome the coordination problem. Standing is not unlimited because only group members or citizens can have it. Other outsiders do not.
There is nothing in the text or the logic of Article III, which extends to “all cases in law and equity,” that places fatal constitutional shackles on these actions. These class actions are essential for bringing discipline to private organizations, as in shareholder derivative lawsuits. Why then are they totally inapposite with respect to actions by national or state governments, when the possibility of official abuse is always present given the weak direct sanctions against public officials. How can the power of judicial review be exercised under Marbury v. Madison if no one has standing to challenge a broad class of structural constitutional violations?
In principle, I can think of no reason whatsoever why individuals who wish to challenge ultra vires (literally— beyond the powers) actions by the government should be routinely silenced because their grievances are shared in common with all fellow citizens. Rather than bar the suit, the better course of action is to allow dissenters to join as parties to the litigation, under the rules governing joinder and intervention, not standing.
In Lujan, Justice Scalia also mentions two other parts of standing doctrine. But these do not alter the basic analysis.
The first is the requirement that insists that the plaintiff trace his injury to the action of some government official. That rule makes sense for the tort victim that is run over by a truck, but not for injunctions against official abuse of government power. Nor is there any serious issue of whether the claimed injury is redressible by judicial action. That will always be the case if the injunction stops the unconstitutional violation in its tracks.
The third question was whether it is likely that the harm in question could be redressed by a favorable decision. One reason why this might not be the case is that the Court does not have before it a party who will be practically bound by the decision, who ought to be heard before the case is decided. At that point it is appropriate not to hear the case for a reason common to all courts sitting in equity: it does not have jurisdiction over a necessary party. The Court was right, for example, to dismiss a challenge to the tax-exempt status of private hospitals in Simon v. Eastern Kentucky Welfare Rights Organization, but only because those hospitals were not joined in the suit.
With all parties present, this joinder difficulty disappears. Thus in Flast v. Cohen, the plaintiff was allowed to mount an Establishment Clause challenge transfers of property by Congress to religious schools. But similar suits were not allowed against transfers by administrative departments or by presidential order. The standing requirement should not be fragmented in this mindless fashion. The original broad public meaning of Article II, Section 2 is consistent with past practices in England and the states prior to the adoption of the Constitution. An originalist can ask for no higher pedigree for a comprehensive standing doctrine. The public should expect no less.
Richard A. Epstein is the Laurence A. Tisch Professor of Law, the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus and Senior Lecturer, The University of Chicago. He is the author most recently of The Classical Liberal Constitution: The Uncertain Quest for Limited Government (Harvard University Press, 2014).