The Volokh Conspiracy

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Meanings, Intentions, Original Law

Another way to understand what originalists are doing.


In the Supreme Court's recent standing decision, Uzuegbunam v. Preczewski, both sides made originalist arguments. An interesting post by Mike Dorf asks what kind of originalism this was.

To Dorf, neither Justice Thomas, for the majority, nor the Chief Justice, in dissent, really sought the original public meaning of the terms "Cases" or "Controversies." They didn't "consult late 18th century dictionaries, corpuses, and perhaps other sources," to ask "whether a well-informed English speaker in the early Republic would have understood litigation in which the plaintiff sought only nominal damages to be a 'case' or 'controversy.'" Instead, the Court cited the views of people like Justice Story or Lord Holt on whether common-law courts could hear suits for nominal damages. Thus, the Court must have been engaging in "old-school intentions-and-expectations originalism"—"showing that the framers and ratifiers of the Constitution intended and expected the courts to hear cases in which the plaintiff sought only nominal damages."

This iron choice between meanings or intentions leaves out another important possibility, namely the original law. If Article III courts could or couldn't hear nominal-damages suits at the Founding, the same likely remains true today. The history matters, not because we have an affirmative obligation to do as the Founders did, but to the extent the courts lack any new authority to do differently: perhaps nothing has happened to abridge, enlarge, or modify the scope of the judicial power since it was adopted in Article III.

So the reason why Justice Story and Lord Holt seem obviously relevant is that we want to recover what the law was upon Article III's ratification—and Justice Story and Lord Holt, neither framers nor ratifiers, might still know more about this than we do. Article III let the federal courts hear "Cases, in Law and Equity, arising under . . . the Laws of the United States." What we need to know isn't really the meaning of the words "Cases" or "in Law," so much as the scope of the common-law jurisdiction those words would have conferred. If common-law courts in general could hear these sorts of cases at the Founding, it's harder to argue that Article III forbade the federal courts from doing so.

This isn't to endorse either opinion, or to say that either consciously sought after the original law. And standing doctrine itself might have strayed rather far from Article III's original scope. Many questions that we now see as standing questions might actually have been resolved by other areas of law–the topic of an ongoing research project of mine, on "How Standing Ate Procedure." (Whether "the defendant should be able to end the case by giving him a dollar" might depend, for example, not on Article III, but on the law of tender—which might have let defendants make such payments, but which also might have taken them as admissions in future suits.)

But whether or not they're consciously pursuing the original law, both professors and judges might discover, like Molière's M. Jourdain, that they've been speaking prose all along.