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Document Type

Article

Abstract

If a federal official is deliberately violating the Constitution, is it possible 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 the lawsuits were not “cases” as meant in the phrase “[t]he Judicial Power shall extend to all Cases” in Article III, Section Two, of the Constitution.

For example, in July 2019, the U.S. Court of Appeals for the Fourth Circuit dismissed a lawsuit that the State of Maryland and the District of Columbia brought against President Donald Trump claiming he is deliberately violating the Constitution’s prohibition against receiving emoluments from foreign states. The lawsuit alleged that foreign governments pay substantial sums for using the Trump International Hotel in Washington D.C. and that President Trump is sole owner of the Trump Organization, which in turn owns that hotel. The court said: “[T]he 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.”

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 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.”

The claims of Maryland and the District of Columbia against President Trump were dismissed by the Fourth Circuit without consideration of the merits because, in the court’s view, the plaintiffs had failed to show “concrete and particularized” injury that was different than the alleged harm suffered by all citizens if the President is corrupted by receipt of foreign payments. Failure to meet the Supreme Court’s definition of “case” is described as a “lack of standing.” 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 [the 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.

For the first two months of a constitutional convention that lasted less than three-and-a-half months, various versions of what would eventually become Section Two of Article III consistently provided that federal courts should have the power to “hear and determine . . . questions which may involve the national peace and harmony.” On July 18, 1787, the Convention unanimously adopted the following resolution proposed by James Madison: “[T]he jurisdiction of the national Judiciary shall extend to cases arising under laws passed by the general Legislature, and to such other questions as involve the National peace and harmony.”

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 to explore linguistic implications suggested to them by Madison’s July 18 resolution. 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 “such other questions” to be a more general category of jurisdiction than “cases arising under laws”; and
  3. Would not have understood “cases” as having a stable, inherent meaning such as “injured plaintiff litigation”—instead “cases” in each context of use in Article III would have been read as having a different meaning, constructed through its combination with accompanying words.

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