Does History Defeat Standing Doctrine?
UVA Law Faculty Affiliations
Although the modern Supreme Court claims historical support for refusing to let private parties who have suffered no concrete private injury ask federal courts to redress harms to the public at large, academic critics have insisted that the law of standing is a twentieth-century invention of federal judges. In earlier eras, the critics argue, the recognized forms of action might have required plaintiffs to have particular injuries in order to make out specific claims, but there was no generalized standing law, and certainly no constitutional requirement of individualized injury for people challenging governmental action.
This article disagrees. In the nineteenth century, courts enforced an active law of standing (although not so called) that cut across various causes of action, and that reflected the distinction between public and private rights. Courts regularly designated some areas of litigation as being under public control and others as being under private control. What is more, and contrary to the standing critics, the Supreme Court often did discuss these issues in constitutional terms, particularly in actions against federal and state governmental officials.
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. The subsistence of qui tam actions alone might be enough to refute any such suggestion. 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.