‘Questions Involving National Peace and Harmony’ or ‘Injured Plaintiff Litigation’? The Original Meaning of ‘Cases’ in Article III of the Constitution

55 Pages Posted: 30 Sep 2019

See all articles by Haoshan Ren

Haoshan Ren

Georgia State University

Margaret Wood

Northern Arizona University

Clark D. Cunningham

Georgia State University College of Law

Noor Abbady

Savannah College of Art and Design

Ute Römer

Georgia State University

Heather Kuhn

affiliation not provided to SSRN

Jesse Egbert

Northern Arizona University

Date Written: September 27, 2019

Abstract

If a federal official is deliberately violating the Constitution, is it possible that 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 that the lawsuits were not “cases” as meant in the phrase “The judicial Power shall extend to all cases” in Article III, Section 2, of the Constitution.

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.” The Supreme Court has 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. Thus, at least in the civil setting, the Court has restricted the meaning of “cases” to adversary litigation initiated by a plaintiff with a personal and concrete injury --- in brief, “injured plaintiff litigation.”

This narrow interpretation of “cases” was used recently by the U.S. Court of Appeals for the Fourth Circuit to justify dismissing a lawsuit brought against President Donald Trump by the State of Maryland and the District of Columbia claiming that he is deliberately violating the Constitution’s prohibition against receiving emoluments from foreign states. The court said: “the 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.” 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 [plaintiffs] have no standing to sue, no one would have standing, is not a reason to find standing.”

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.

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, including the Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words.

One of the most glaring flaws of the Articles of Confederation was that the Articles supported only a very weak federal judiciary system. When delegates gathered in Philadelphia to draft a new constitution, they started out with high aspirations for establishing courts empowered to “hear and determine … questions which may involve the national peace and harmony.” The linguistic and historical analyses presented in this article support a conclusion that this aspiration did not disappear when “questions involving national peace and harmony” evolved into a series of phrases introduced by the word “cases” instead of “questions.”

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 “questions as involve the National peace and harmony ” to be a more general category of jurisdiction than “cases arising under laws”; and
(3) Would not have understood “cases” in Article III as having a stable, inherent meaning such as “injured plaintiff litigation” – instead “cases” in each context of use would have been read as having a different meaning, constructed through its combination with accompanying words.

This empirical research may prompt reevaluation of the Supreme Court’s assumption that the original meaning of “cases” in Article III had the restrictive meaning of “injured plaintiff litigation” – an interpretation that is inconsistent with evidence of how those who drafted and ratified the Constitution actually used language.

Suggested Citation

Ren, Haoshan and Wood, Margaret and Cunningham, Clark D. and Abbady, Noor and Römer, Ute and Kuhn, Heather and Egbert, Jesse, ‘Questions Involving National Peace and Harmony’ or ‘Injured Plaintiff Litigation’? The Original Meaning of ‘Cases’ in Article III of the Constitution (September 27, 2019). 36 Georgia State University Law Review __ (Forthcoming); Georgia State University College of Law, Legal Studies Research Paper Forthcoming. Available at SSRN: https://ssrn.com/abstract=3460743

Haoshan Ren

Georgia State University ( email )

35 Broad Street
Atlanta, GA 30303-3083
United States

Margaret Wood

Northern Arizona University ( email )

PO Box 15066
Flagstaff, AZ 86011
United States

Clark D. Cunningham (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

HOME PAGE: http://www.clarkcunningham.org

Noor Abbady

Savannah College of Art and Design ( email )

Durham, NC
United States

Ute Römer

Georgia State University ( email )

25 Park Place
Suite 1500
Atlanta, GA 30303
United States

Heather Kuhn

affiliation not provided to SSRN

Jesse Egbert

Northern Arizona University ( email )

PO Box 15066
Flagstaff, AZ 86011
United States

HOME PAGE: http://oak.ucc.nau.edu/jae89/

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