Professor Robert Pushaw, "'Originalist' Justices and the Myth that Article III 'Cases' Always Require Adversarial Disputes" -- Constitutional Commentary (forthcoming)

Professor Robert J. Pushaw's article, "'Originalist' Justices and the Myth that Article III 'Cases' Always Require Adversarial Disputes," (SSRN) will be published in the November 2021 issue of Constitutional Commentary. The article examines the historical meaning of "Cases" under Article III of the U.S. Constitution.

Abstract of "'Originalist' Justices and the Myth that Article III 'Cases' Always Require Adversarial Disputes"

In 1994, I rejected the modern Supreme Court's assertion that Article III, as originally understood, used "Cases" and "Controversies" synonymously to establish a requirement of "justiciability": limiting federal judges to deciding disputes between adverse parties. My linguistic and historical study revealed that only "Controversies" (e.g., between citizens of different states) necessarily involved such disputes. By contrast, "Cases" were proceedings in which a party asserted his rights in a form prescribed by law, regardless of whether an adversarial contest existed. Therefore, in "Cases" the federal courts' main role would be interpreting and applying federal law, not umpiring a dispute.

Professor Pfander's exhaustive research has led him to agree with me on all but one point. He accepts my definition of "Cases," but not my conclusion that the Framers chose that word primarily to signify that federal judges' key function would be expounding the law. Instead, Pfander argues that Article III's drafters, following English and American legal tradition, used "Cases" as an umbrella term that encompassed all "litigable interests": Claimants could bring any recognized court action to vindicate their legal rights. Such jurisdiction could be "contentious," as exemplified by common law suits in which a plaintiff alleged the violation of a contract, tort, or property right by an adverse defendant. However, England also incorporated elements of the European civil law system, which allowed several types of "noncontentious" jurisdiction. In such cases, a court decided a petitioner's request for a "constitutive" order, which recognized a legal right in an area such as family law, probate, bankruptcy, naturalization, admiralty, and equity.

This review describes Professor Pfander's three important scholarly contributions. First, his thorough research has unearthed the deep historical roots of noncontentious jurisdiction. Second, he demonstrates that the First Congress and the early Supreme Court embraced such uncontested adjudication. Third, to integrate Article III's original meaning with modern precedent, he proposes restricting federal court access to plaintiffs who have a "litigable interest"- a valid claim of a legal right presented in a form authorized by law. If such a claim is set forth in any Article III "Controversy" or in a "Case" with adverse parties, courts may demand a showing of a "litigable interest" and also a concrete dispute (as justiciability doctrines demand). By contrast, in "Cases" of noncontentious jurisdiction, the latter requirement makes no sense.

I applaud Professor Pfander's recommended approach as pragmatic, yet faithful to Article III's text and history. Moreover, Professor Pfander and I have reached similar conclusions about the historical meaning of Article III even though we have radically different political views. Therefore, our work suggests that originalism can be nonpartisan, contrary to the conventional wisdom that conservatives employ this methodology as a smokescreen to impose their political agenda.