IV. THE RISE OF STANDING: Steve Winters

 

IV. THE RISE OF STANDING

Metaphor creates a new reality from which the original appears to be unreal. n246

A lot happened to "standing" between the time of John Marshall and Felix Frankfurter. The term started out as a nonspecific metaphor, gained currency in equity, and only later became a constitutional doctrine. It will require Holmesian (Sherlock, not Oliver Wendell) deduction to reconstruct that story, and it will prove anything but elementary.

This section is divided into five parts. The first traces the usages of the term "standing" from Justice Marshall to Justice Brandeis. We will see the ontological effect of the metaphor in equity, as it exerted pressure on judges and lawyers to see what had been questions of substance and of remedy as a jurisdictional question of access to a court of equity.

The second subsection traces the history of the concept of jus tertii. Originally conceived as a requirement of the Supreme Court's jurisdictional statute, it became a tenet of individualism that eviscerated the  [*1418]  representational models premised on link schemata such as the part-whole metaphor for society. Its primary elaboration came in equity, with its emphasis on the individual's irreparable injury as the sine qua non for the exercise of the court's power.

The third subsection turns to the viability of another version of the representational model during this period. It briefly traces the doctrinal battle over the capacity of a state (as the whole) to vindicate in the federal courts the interests of its citizens (its parts). We will see the Court still vacillating between the private and the public rights models in this area as late as the 1970s.

The fourth subsection takes up the equity versions of the constituent model: shareholder derivative suits and taxpayer actions. We will see Justice Brandeis' largely unsuccessful efforts to bar their use. We will see, too, his near capitulation in 1937. From those ashes we will see Justice Frankfurter single-handedly raise the phoenix of standing. The final subsection sketches the historical context which suggests the motivation of these determined efforts.

A. Substance, Remedy, and the Ontology of "Standing"

The term "standing" was in use in Justice Marshall's time; it was first used as a metaphor to describe the legal relationship of parties. In Lidderdale's Executors v. Executor of Robinson, n247 a case involving the priority of creditors, the Court held that sureties "succeed to the legal standing of their principal...." n248 In Galloway v. Finley, n249 an equity action for the rescission of a contract to purchase land, the Court held that a buyer who learned that the seller had bad title "could not be permitted to avail himself of it whilst standing in the relation of a purchaser, to defeat the agreement...." n250

The Court eventually used the term "standing" to describe a party's status in the litigation. This usage took two forms, both unrelated to the modern standing doctrine. The Court used the metaphor most  [*1419]  commonly to indicate that a party had no claim on the merits, as it did in a series of cases concerning land claims in the Louisiana Purchase by those with preexisting Spanish title. n251 Congress had required that title be confirmed by a federal commission. Many of the original settlers failed to obtain such confirmation, and the Court held against them expressing its holding in the language of "standing." In Les Bois v. Bramell, for example, the court rejected plaintiff's unconfirmed Spanish title because "her claim had no standing in a court of equity or of law...." n252

The Court used the term "standing" to refer to the claimant, not the claim, in its rejection of the claim on the merits in Ritchie v. Franklin County. n253 Mr. Ritchie brought an equity action as a taxpayer to establish that bonds issued by the county court pursuant to state statutory authority were illegal under the state constitution. He sued the county court and the holders of the bonds. The case came to the Court on plaintiff's exceptions to the answer. The Court upheld the validity of the bonds, n254 and concluded that "as the defendants claim to be innocent holders, ... the complainant has no standing in a court of equity." n255

Although in both Les Bois and Ritchie the Court used the term "standing" to indicate a loss of the suit on the merits, the two cases differ substantially when analyzed according to the modern doctrine of the same name. The private rights model characterized Les Bois; the plaintiff had clearly suffered particularized injury redressable by a common law court. By contrast, the constituent public rights model applied to Ritchie; Mr. Ritchie had suffered no demonstrable injury and he shared his grievances with all other taxpayers of the county. In neither case did the Court engage in an analysis that remotely resembled modern article III standing. In each case, the Court's explicit consideration of "standing" was an inquiry into the merits. n256

 [*1420]  The Court also used the term "standing" to describe those parties identified by article III as supporting party-based subject matter jurisdiction. In Livingston v. Story, the Court dismissed a diversity case because the plaintiff had not properly pled the parties' citizenship for purposes of diversity jurisdiction. Justice Baldwin argued in dissent that "like all others material to the plaintiff's standing in court, [the plaintiff] was bound to prove it when called on by an answer, which did not admit, or put it in issue by a denial." n257 In Georgia v. Stanton, n258 the Court used the metaphor to characterize the decision in Cherokee Nation v. Georgia n259 "that the Cherokee Nation could not be regarded as a foreign nation within the Judiciary Act; and, that, therefore, they had no standing in court." n260

The term "standing" had a third nineteenth century usage that first appeared in equity cases concerning public nuisance. In Georgetown v. Alexandria Canal Co., n261 the city of Georgetown sought an injunction in federal court to stop the construction of an aqueduct over the Potomac River that threatened to obstruct both the channel and the harbor. The Court held that the case was not proper for a court of equity. It expressed this in the language of a familiar battle metaphor: "[T]he plaintiff cannot maintain a stand in a court of equity...." n262

Doctrinally, Georgetown had nothing to do with article III; the case was solely and explicitly an artifact of the historic jurisdictional fight between law and equity. The Court first discussed the exercise of criminal jurisdiction over public nuisances by the law courts. n263 It then traced the tenuous exercise of equity jurisdiction over public nuisances, which "had lain dormant for a century and a half ... from Charles I.  [*1421]  down to the year 1795." n264 The compromise in this jurisdictional battle between law and equity was a doctrine that required special, private injury as a prerequisite for an injunction against a public nuisance. n265 The Court accordingly held that the city was not a proper plaintiff.

The significance of Georgetown in the development of standing is not doctrinal but cognitive. Toward the end of its opinion, the Court admonished that:

The appellants seem to have proceeded on the idea, that it appertained to them, as the corporate authority in Georgetown, to take care of and protect the interests of the citizens.... But ... the persons who, by name, bring the suit, and constitute the parties on the record, [must] have themselves an interest in the subject-matter.... n266

Though this passage appears in a case that was solely about equity doctrines, its language foreshadows that of the later constitutional doctrine of standing. For, Georgetown and its progeny rejected for equity the kind of representational model premised on a part-whole schema that characterized Hayburn's Case and mandamus. n267 The invocation of the representational model by the city was consistent with the notion of a municipal corporation; the term is itself a part-whole metaphor for the human body. n268 The Court, however, rejected just this assertion by the appellants of the right to sue as "the corporate authority in Georgetown." This rejection of the representational model premised on a part-whole schema was not final, of course; the Court vacillated on this point both in Hall n269 and in later equity cases. The most notable of  [*1422]  these was In re Debs. n270

When, in Debs, the Court considered the "standing" of the federal government to obtain an injunction to stop the Pullman strike of 1894, it did not consider an article III, "case or controversy" question of standing. Rather, it asked whether the government had acted within its delegated authority and whether, "[i]f authority exists, as authority in governmental affairs implies both power and duty, has a court of equity jurisdiction to issue an injunction in aid of the performance of such duty." n271 The Court concluded that the appeal by the government to a court of equity was appropriate on two grounds. First, the Court invoked a private rights model for the government's position: "It is said that equity only interferes for the protection of property, and that the government has no property interest. A sufficient reply is that the United States have a property in the mails, the protection of which was one of the purposes of this bill." n272 But the Court did not rest there; it applied the public rights model directly — invoking the government's obligation "to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare," — as a "sufficient" ground to confer upon the government "a standing in court." n273

In these nineteenth century "standing" cases, the central inquiry was whether the litigant asserted the kind of interest or right for which equity would provide a remedy. In Ritchie, the litigant had asserted a claim that equity would not enforce against an innocent purchaser. Similarly, in Debs, the Court considered what kind of rights, both public and private, were enforceable by equity. n274 Despite the use, by the Court in Georgetown, of a variant of "standing" in connection with its insistence on a private rights model, the Debs Court reaffirmed the public rights model in upholding the "standing" of the federal government.

The significance of Debs to modern standing doctrine was purely linguistic. To appreciate this, it is necessary to understand how wide was the gap between the original understanding of "standing" — with its grounding in substantive considerations of equitable rights and remedies — and the later imposed requirement of "injury-in-fact." This gap lasted well past Frothingham; it wasn't until much later that the term "standing" was understood as expressing a purely procedural concept.

The Chicago Junction Case, n275 decided a year after Frothingham, illustrates the gap between the original substantive meaning of "standing" and its later procedural usage. There, competitor railroads brought a  [*1423]  suit in equity to set aside a sale approved by the Interstate Commerce Commission. The defendants claimed that the plaintiffs had "not the legal interest necessary to entitle them to challenge the order." n276 Writing for the Court, Justice Brandeis first observed that the plaintiffs had "a vital interest.... The diversion of traffic has already subjected the plaintiffs to irreparable injury ... exceed[ing] $ 10,000,000." n277 That assertion did not address the relevant question because what the litigant needed for "standing" was not literal injury, but a redressable right or legal injury. The Court found that right not in "the incident of more effective competition," but rather in the statutory "injury inflicted by denying to the plaintiffs equality of treatment." n278

Justice Sutherland dissented on the ground that the railroads had no "remediable interest." He phrased this argument in terms of "standing." n279 But he did not invoke an article III doctrine; he relied on general principles. n280 "What constitutes a legal or equitable right, interference with which may give rise to an action? may be tested; and the determination of that question must still rest upon general principles of jurisprudence." n281

 [*1424]  As late as Ashwander, n282 Justice Brandeis shared Justice Sutherland's doctrinal premises. In his famous concurrence in Ashwander, Justice Brandeis opined that the plaintiffs did not have standing, stating that "[t]he obstacle is not procedural. It inheres in the substantive law, in well settled rules of equity, and in the practice in cases involving the constitutionality of legislation." n283 Justice Brandeis derived none of these three obstacles to "standing" from article III. n284 Even his invocation of the constitutional practice was prefaced with the observation that the rules developed by the Court were "for its own governance in the cases confessedly within its jurisdiction...." n285

It is this understanding of "standing" as substantive that illuminates the significance of cases like Debs: Debs illustrates the ontological effect of the metaphor. In the nineteenth century, the phrase "a standing in court" n286 was used to refer to the party's ability to obtain equitable remedies from the courts. This phrase suggested that standing was a jurisdictional question, as in Livingston or Cherokee Nation. That interpretation was consonant with both the historical view of equity as a separate jurisdiction (as it had been before the merger of law and equity) and the notion that jurisdiction in equity was founded on the availability of certain remedies.

But the discussion of concepts of rights and entitlement to equitable remedies in jurisdictional terminology was understood by the most eminent legal scholars of the day as an inaccuracy needing correction. John Pomeroy decried the phenomenon in 1892: "[T]he 'equity jurisdiction'  [*1425]  is constantly confounded with the right of the plaintiff to maintain his suit...." n287 In 1926, in State Grange v. Benton, Justice Holmes admonished that: "Courts sometimes say that there is no jurisdiction in equity when they mean only that equity ought not to give the relief asked. In a strict sense the Court in this case had jurisdiction." n288 At the very time of Frothingham and Fairchild, the Supreme Court was trying to disentangle "standing" from notions of jurisdiction. In 1926, the Court wrote: "Whether a plaintiff seeking such [equitable] relief has the requisite standing is a question going to the merits, and its determination is an exercise of juridiction. If it be resolved against him, the appropriate decree is a dismissal for want of merits, not for want of jurisdiction." n289

Nevertheless, the ontological effect of the metaphor was overpowering: "A standing in court" sounds like a question of jurisdiction because standing up is a prerequisite to being heard in court. Justice Holmes, Pomeroy, and the Supreme Court did battle with the metaphor, but lost. "Standing" became a question of jurisdiction in the more fundamental sense of justiciability under article III.

B. Jus Tertii and the Elaboration of the Individualist Model

The analytic antecedents of the modern doctrine of standing can be traced to the cases that we now see as presenting problems of jus tertii: when a litigant seeks to invoke rights "belonging" to a third party. n290 The connection between the jus tertii cases and their modern doctrinal descendent lies in their common conceptualization by means of the individualistic metaphor of "standing." If a litigant can assert only his or her own "personal" rights, then that person cannot assert the rights of another (jus tertii) and that person cannot assert the rights of the group (standing) unless he or she actually has suffered personal injury and the rights asserted are only coincidentally those of the group.

Viewed through this lens, both jus tertii and modern standing cases concern situations in which the court dismisses the litigant's claim because he or she is the wrong person to assert it. But these two types of cases relied on different doctrines. The jus tertii cases were not premised on article III minima derived from the "case or controversy" requirement as is the modern understanding of standing. As Justice Brandeis explained in Ashwander, jus tertii was a rule the Court applied in  [*1426]  "cases confessedly within its jurisdiction...." n291 None of the jus tertii plaintiffs lacked the requisite relationship to the court now delineated by the modern doctrine of standing. Each plaintiff had a sufficient interest to make the dispute a "case." Each had suffered an injury-in-fact; each was affected in a particularized way by the private or public actions about which he or she complained; and, had the courts adjudicated the claim, each predicament would have been redressed by the relief sought.

Equity doctrine provided the link that allowed jus tertii cases to become transformed into the modern standing doctrine with its focus on injury and direct causation. To document this link, I will demonstrate that the jus tertii doctrine itself evolved from two separate lines of cases.

The first line of cases evolved from an 1809 decision by Chief Justice Marshall in Owings v. Norwood's Lessee. n292 Mr. Owings, the defendant in an ejectment action, had come into possession of the property after an attachment and unexecuted judgment of condemnation had been obtained by a creditor of the mortgagee. n293 Mr. Owings' defense to the plaintiff's claim of title was that superior title had passed to the mortgagee, an English merchant named Mr. Scarth. The Maryland courts held that Mr. Scarth's interest had been confiscated by the state in 1780. Mr. Owings argued that the confiscation in fact occurred in 1794 and, therefore, was invalid under the provisions of the treaty of peace with England. The Court held that it had no jurisdiction because "[t]he 25th section of the judiciary act must be restrained by the constitution, the words of which are, 'all cases arising under treaties.' The plaintiff in error does not contend that his right grows out of the treaty." n294

The next day, plaintiff's counsel addressed the Court, stating his understanding of the basis of the Court's decision. He suggested that the Court had reached its decision by interpreting its power to review state court judgments "where the party himself did not claim title under a treaty." Chief Justice Marshall respondend that plaintiff's counsel "had misunderstood the opinion of the court, in that respect. It was not that this court had no jurisdiction if the treaty were drawn in question  [*1427]  incidentally." n295 Rather, Mr. Owings could not invoke the Court's appellate jurisdiction because his was not a case presenting a federal question. n296 Mr. Owings claimed no title under the Englishman Scarth. Nothing in the case concerned the rights or treatment of an English national, the subject to which the treaty's provisions were addressed. The invocation of Mr. Scarth's title was relevant only as a matter of state property law to defeat the plaintiff's ejectment claim. n297 That question could be invoked by Mr. Owings in the Maryland courts. n298 But, the purposes of the treaty protections — that is, the federal interests n299 — were absent; the case was wholly dependent on state law. n300

In its own time, however, Owings was understood as construing section 25 of the Judiciary Act of 1789 as limiting the Supreme Court's appellate jurisdiction to cases in which the plaintiff-in-error claimed or set up a title of his or her own derived from the Constitution, a treaty, or a law of the United States. n301 This was, in part, because Chief Justice Marshall's opinion appeared to be concerned with the definition and ownership of rights. n302 It is not surprising that this notion of jus tertii was understood as statutory rather than constitutional. For the contemporaneous informer, relator and mandamus cases taught that article III did not necessarily bar a litigant from raising another's rights. If  [*1428]  there was a rule of law that did so, it would have to have been the statute. The Court continued to interpret its jurisdictional statute as the source of the principle of jus tertii well into the twentieth century. n303

The generalized notion of jus tertii that we are familiar with today developed instead from an entirely different source: state mandamus cases as interpreted by Dean Thomas Cooley. n304 Precisely because mandamus practice allowed strangers to litigate constitutional claims of governmental excess, those queasy about the exercise of the strong medicine of judicial review questioned whether any public spirited citizen should be able to invoke it.

This notion of jus tertii was derived from the distinction between unconstitutional statutes as void or merely voidable. n305 In Marbury's conceptual system, unconstitutional statutes were conceived of as void because beyond the legislative power in the first place. n306 Marbury's conception was soon questioned in the state courts, where the practice of judicial review was recognized, but not embraced so unqualifiedly. In re Wellington, n307 the Massachusetts court propounded its own, premature Brandeisian catalogue of devices for avoiding the invalidation of state statutes on constitutional grounds. n308 Amongst these was the recognition that when such an act is alleged to be void, on the ground that it exceeds the just limits of legislative power, and thus injuriously affects the rights of others, it is to be deemed void only in respect to those particulars, and as against those persons, whose rights are thus affected. n309

Wellington was a classic public rights case. Joshua Wellington and his co-plaintiffs sought, by means of mandamus, to compel county commissioners "to consider and determine whether it be of common convenience and necessity," that a road be built across a corner of Cambridge  [*1429]  common. n310 On the merits, the petitioners argued that the state statute establishing the commons was unconstitutional because it failed adequately to provide for compensation to the original property owners, all of whom were third parties. The court recited the limitation noted above, but ruled against the third party claim on the merits. n311

Only at the close of the opinion did the court consider "whether the petitioners in the present case stand in such a relation to the cause and the subject matter, as to warrant them in applying to this Court for a writ of mandamus." n312 It suggested that "it may perhaps be urged with some force, that petitioners so situated are parties and as such have an interest in the final and correct determination of the cause...." n313 Ultimately, the court concluded that it need not reach the "standing" question because it disposed of the case on the merits of petitioners' third party claim. n314

But Dean Thomas Cooley adopted Wellington's notion that statutes were only unconstitutional as applied to specific people. He discussed it in his influential treatise on constitutional limitations on state governments, n315 a major source of late nineteenth century legal views on individualism. n316 Cooley interpreted Wellington as a case about the individualistic basis of rights that stated a general rule of jus tertii: "Nor will a court listen to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in defeating it." n317

Some state courts applied Cooley's analysis n318, but the Supreme Court was initially less receptive. n319 Thus, although the Court asked  [*1430]  the rhetorical question in Supervisors v. Stanley, n320 — "What legal interest has he in a question which only affects others?" n321 — it did not decide the case by invoking Cooley's (or Owings', for that matter) concept of jus tertii. Rather, the Court concluded that the New York statute "was voidable but not void." n322 It found that the provisions of the New York statute were severable, n323 and could be applied in cases in which no conflict with the federal statute existed. n324

The watershed came in three cases at the turn of the century. In the first, Clark v. Kansas City, n325 the Court cited Cooley and Stanley as illustrations of the proposition that "a court will not listen to an objection made to the Constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it." n326 In Clark, a railroad challenged a state statute exempting agricultural land from municipal annexation. It argued that the statute discriminated between the owners of agricultural and other types of land, as well as among owners of various classes of agricultural land, in violation of the equal protection clause. n327 Because the railroad owned no agricultural land, the Court only considered the alleged discrimination between owners of agricultural and nonagricultural land, but would not consider discrimination among owners of various classes of agricultural land. The Court applied the source-path-goal metaphor of the private rights model; because the railroad had suffered no legal injury — that is, no source for the remedial request the railroad — had no cause of  [*1431]  action. n328

The second case, Tyler v. Judges of the Court of Registration, n329 is the most significant of the three: It is one of two opinions authored by Justice Brown that form the basis of the modern standing doctrine; n330 it was the first opinion to combine the statutory and generalized versions of jus tertii; n331 and, most importantly, it was a prerogative writ case, thus challenging the viability of the representational model on its home turf.

Tyler was a challenge to the Massachusetts Land Registration Act of 1898, n332 which provided for an in rem proceeding through which an owner could settle title as against all potential claimants. Mr. Tyler was the owner of a lot adjoining one that was about to be registered; he was concerned that the registration, specifying the boundaries of the lot, would prejudice a dispute over the boundary between that land and his. He sought a writ of prohibition to stop the registration court from proceeding. He argued that the registration statute was unconstitutional because it failed to provide notice to absent third parties who might have an interest in the land to be registered. The Court declined review because Mr. Tyler clearly had notice, and therefore did not have "the requisite interest to draw in question the constitutionality of this act...." n333 Mr. Tyler could not invoke the concerns of others, who had to complain for themselves. n334

The four dissenters were astonished by the Court's ruling. n335 And  [*1432]  they had good reason to be: Massachusetts Supreme Court Chief Justice Holmes had authored the opinion below and had not questioned Mr. Tyler's capacity to bring the action. n336 Furthermore, in Massachusetts in 1900, as at the time of the Framers, a writ of prohibition of the type sought in Tyler was available at the behest of a stranger, let alone a petitioner with an injury of his or her own. n337

But Justice Brown and the majority opined:

The prime object of all litigation is to establish a right asserted by the plaintiff or to sustain a defence set up by the party pursued. Save in a few instances where, by statute or the settled practice of the courts, the plaintiff is permitted to sue for the benefit of another, he is bound to show an interest in the suit personal to himself, and even in a proceeding which he prosecutes for the benefit of the public, as, for example, in cases of nuisance, he must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens. n338

The Court failed to explain in doctrinal terms why Mr. Tyler's action did not provide a proper "instance[] where, by ... the settled practice ..., the plaintiff is permitted to sue for the benefit of another." The Court also ignored the fact that Mr. Tyler had alleged an injury peculiar to himself: an adjudication by the registration court of the boundaries of the adjoining property that would, at least de facto, alter his rights. Finally, the opinion invoked the law of nuisance as its paradigm, an analogy underlining the degree to which the notion of "standing" was bounded by the relevant substantive law and, thus, undermining the Courts generalized assertion that a plaintiff could not sue on behalf of others.

What Justice Brown's opinion did instead was neatly to sever the plaintiff's connection to the absent third parties by rejecting the sufficiency of the part-whole metaphor for society: Mr. Tyler needed to make a personalized legal claim "as distinguished from the great body of his fellow citizens." n339 Doctrinally, the opinion invoked Owings and its progeny n340 — as well as aspects of justiciability such as mootness, ripeness, and the ban on advisory opinions. n341 It did not raise the question  [*1433]  we now view as central to standing: the degree of injury a litigant must suffer to establish his or her entitlement to use the judicial process. To the contrary, Justice Brown acknowledged that Mr. Tyler was free to intervene in the registration process and pursue his claim in that case all the way to the United States Supreme Court. n342

Thus, Tyler was not a case of article III standing in the modern sense. But, it was an important step toward the modern doctrine because it specifically rejected application of the representational model with the writ of prohibition. The final link, transforming a doctrine preventing injured parties from invoking third party rights into a doctrine requiring direct injury, came from familiar doctrines of equity. n343 Two years after Tyler, in Davis & Farnum Manufacturing Co. v. City of Los Angeles, n344 Justice Brown employed the metaphor of "standing" and invoked the jus tertii reasoning of Tyler by analogy.

In Davis, a subcontractor on a gas tank construction project sought to enjoin Los Angeles from enforcing municipal ordinances banning the project. The subcontractor had an obvious economic interest in the project, and employees of the subcontractor were being prosecuted for violating the ordinance. The subcontractor sought to enjoin the pending state criminal proceedings on constitutional grounds, claiming that later enacted ordinances impaired the obligation of a preexisting contract to build the gas works. n345 In his opinion for the Court, Justice Brown dismissed the subcontractor's interest as too indirect: "[T]his is not a bill by ... the owner of the land and of the proposed gas works ... nor by the contractor, with which she had made a contract to erect these works; but by a subcontractor...." n346

The Court held that the subcontractor did not "stand ... in [a] position ... to take advantage of the unconstitutionality of [the] law" because "it has an action against the Gas and Fuel Company, which is presumed at least to be able to respond in damages for all such as plaintiff may have suffered by the interruption of the contract...." n347 Thus  [*1434]  Davis was not a case of "standing" in which the Court viewed the plaintiff as having no personal interest in the outcome of the dispute.

Conceptually, Davis held that the subcontractor could not use a part-whole schema or a link schema to invoke the "personal" claim of the general contractor. The subcontractor's complaint, after all, was that the municipal ordinance affected everyone in the chain extending from the land owner, to the general contractor, through it (as an intermediate link), to its own employees. The Court said that the subcontractor could not invoke the joint interest of the whole chain. The subcontractor would have to deal with the other link, the general contractor, on its own.

Doctrinally, the lower federal courts interpreted Davis as concerning the scope of the equity jurisdiction of the federal courts. n348 Two other equity cases, frequently cited in modern standing opinions, illustrate this equitable, rather than constitutional, origin of the link between jurisdiction and adequacy of one's personal interest: McCabe v. Atchison, Topeka & Santa Fe Railway Co. n349 and Truax v. Raich. n350

In McCabe, five black persons sued to enjoin compliance by five railroads with the terms of a post-Plessy v. Ferguson n351 Oklahoma statute. The statute explicitly required that railroad provide separate but equal facilities. But it allowed one-race sleeping, dining, and chair cars without providing such "luxury" accommodations to the other race. The district court upheld the statute. The Court questioned that part of the statute which deviated from the separate-but-equal doctrine, rejecting the state Attorney General's argument that the railroads experienced insufficient demand for services to justify all-black sleeping, dining, and chair cars. n352 "It makes the constitutional right depend upon the number of persons who may be discriminated against, whereas the essence of the constitutional right is that it is a personal one." n353

The Court nevertheless affirmed. Citing Davis and Tyler, the Court  [*1435]  held that plaintiffs were not entitled to equitable relief. It reasoned that, in order to justify such relief, the plaintiffs must demonstrate personal injury, n354 and there must be no adequate remedy at law. n355 The concluding passage of the opinion reveals that the Court was considering traditional rules of equity, not constitutional or prudential rules of "standing":

Nor is there anything to show that in case any of these complainants offers himself as a passenger on any of these roads and is refused accommodation equal to those afforded to others on a like journey, he will not have an adequate remedy at law. The desire to obtain a sweeping injunction cannot be accepted as a substitute for compliance with the general rule that the complainant must present facts sufficient to show that his individual need requires the remedy for which he asks. n356

In Truax, decided a year after McCabe, the Court revealed the flip side of an equitable, nonconstitutional analysis that depended on the directness of the plaintiff's interest. Mr. Raich, who was from Austria, was a cook in Mr. Truax's restaurant. Arizona passed a statute requiring that at least 80 percent of a business' employees be Americans. Mr. Truax informed Mr. Raich of his intention to discharge Raich because of the statute. Mr. Raich subsequently brought an action in equity to declare the statute unconstitutional and enjoin its enforcement. n357 The state argued that the employer was subject to criminal prosecution, not Mr. Raich, and that therefore Raich could not sue to present the employer's complaint. n358 The Court rejected the argument, premised on McCabe, that "the complainant cannot sue save to redress his own grievance...." n359 It noted that "the discharge of the complainant will be solely for the purpose of meeting of the requirements of the act and avoiding threatened prosecution.... It is, therefore, idle to call the injury indirect or remote." n360 The Court added that Mr. Raich had no adequate remedy at law, concluding, "that the case falls within the class in which, if the unconstitutionality of the act is shown, equitable relief  [*1436]  may be had." n361

Taken together, McCabe and Truax illustrate the equitable source of the modern doctrines of injury-in-fact and of prudential avoidance of constitutional decisions. These cases concerned traditional rules of equity about the limits of its jurisdiction: Equity acted only when necessary; equity grew out of the discretion of the chancellor to determine which interests were sufficiently important to justify the invocation of a coercive, in personam, remedial power rooted in a concern for justice. n362 These doctrines, and not article III specifications about the sufficiency of the litigant's interest, dominated the discourse when the Court subsequently dealt with the question of citizen and taxpayer "standing."

The significance of cases like Tyler, Davis, McCabe, and Truax to the development of constitutional standing, however, was not doctrinal. Rather, these cases were important because they rejected the underlying representational model of the previous century in favor of a model that was strictly individualist. Only Mr. Raich's claim could be maintained because his was not dependent on a representational schema. Mr. Raich's claim was consistent with the causal source-path-goal metaphor. The Court noted that the purpose of the act was directed at aliens such as Mr. Raich and that the path was neither circuitous nor attenuated. n363 On the other hand, Mr. Tyler's link to other members of the community no longer sufficed to justify his invocation of the concerns of other parts of "the great body of his fellow citizens." n364 The fact that Mr. McCabe was challenging the actions of a public carrier on behalf of all black passengers no longer sufficed as in Hall; the fact that the subcontractor in Davis was an intermediate link in the chain affected by the municipal ordinance was no longer relevant. The Court disapproved the representational submodels premised on link and part-whole schemata and these links between individuals were severed. Yet, the public rights submodels with simpler part-whole schemata, that is, the representational model in which the whole acted for the parts, and the constituent model in which one part acted for the entity itself remained intact until the next decade.

C. States' Rights, Private Rights, and Public Rights

The Court invoked the private rights model in the 1860s to block the attempts by southern states to challenge the Reconstruction program. Professor Monaghan cited this invocation as the clearest demonstration of the limitation of article III jurisdiction to "concrete 'private  [*1437]  rights.'" n365 However, Monaghan's analysis is distorted by hindsight. In the 1860s, the Court did not apply the private rights model as an alternative to the intermediate public rights model, but rather as an alternative to viewing certain matters as nonjusticiable "political questions." Indeed, the Court vacillated for decades on the issue of whether states could invoke the public rights model on behalf of their citizens.

In Georgia v. Stanton, n366 the state filed an original bill in equity, asking the Court to restrain the execution of the original Reconstruction Acts setting up military governments in the southern states. The Attorney General argued against jurisdiction on the grounds, inter alia, that the case presented a political question, was premature, and that the alleged harm was speculative. n367 The state argued that equity jurisdiction was proper: "Much has been said about all the evil alleged in the bill being contingent and future.... The fact is quite otherwise. A bill quia timet is one of the very heads of equity jurisdiction." n368 Georgia took the position that the case was justiciable because it fell within the familiar forms. n369

The Court conceded that it had a "case" before it that appeared, in form, to fall under equity jurisdiction, but agreed with the Attorney General that the case was political and nonjusticiable:" [I]n order to entitle the party to the [equitable] remedy ... the rights in danger ... must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity." n370

Florida v. Anderson, n371 decided seven years later, reads like an assertion of the private rights model. The majority opinion even expresses the jurisdictional question in terms of "a standing in court." n372 Anderson was an original bill in equity instituted by the Florida Attorney General on behalf of the state and the trustees of its internal improvement trust fund. The suit sought to protect a statutory lien on some railroad property by setting aside a prior judgment foreclosing on the property  [*1438]  and by invalidating the subsequent sale of the railroad. n373 The defendants challenged the Court's jurisdiction on the ground that only the trustees were proper party plaintiffs, and that the trustees could not invoke the original jurisdiction of the Court. The Court held that the state was the real party in interest and, thus, could invoke the Court's original jurisdiction. n374

In Anderson, as in Stanton, the Court defined its equity jurisdiction in terms of the private rights model's focus on property rights. n375 In Anderson, the issue was whether the state's interest was sufficiently direct to invoke the extraordinary equity power to set aside judgments and invalidate sales. It was solely in this sense that the Court asked whether the state had "a direct interest in the ... controversy ... as to give it a standing in court." n376 The use of the term "standing" did not address the constitutional impermissibility of asserting public rights in the absence of private injury. The Court, which endorsed the public rights model in Hall the same Term that it decided Anderson, is unlikely to have intended to reject in Anderson what it had just approved in Hall. n377

Indeed, Anderson appears to have had no direct impact on the later development of the doctrine of standing. The only time the Court cited Anderson was in the companion case to Frothingham, Massachusetts v. Mellon. n378 In its discussion of the political question doctrine, the Court cited Anderson as an example of the kinds of justiciable questions that a state may raise. n379 The Court did not cite Anderson as an example of an  [*1439]  article III limitation to the private rights model in its consideration of the sufficiency of the plaintiff's interest in Frothingham.

Subsequent to Anderson, the Court invoked the public rights model in a similar federal context in Debs. n380 For the next half century, the Court vacillated over the permissibility of state invocation of the public rights model. The first Justice Harlan argued frequently for the private rights model as a "case or controversy" limitation on suits brought by the states; n381 Justice Holmes, by contrast, argued that the states could appear to vindicate "quasi-sovereign interests." n382

The public rights model of state litigation was ascendent for a time. The Court recognized the state's interest "as the representative of the consuming public" in 1923 in Pennsylvania v. West Virginia, n383 and "as agent and protector of her people" in 1945 in Georgia v. Pennsylvania Railroad. n384 In 1971, the second Justice Harlan reaffirmed the justiciability of a public nuisance case brought by the State of Ohio. n385 Five years later, however, the Court reversed course yet again. In Pennsylvania v. New Jersey, n386 a case involving interstate taxation, the Court rejected a parens patriae suit by Pennsylvania as "nothing more than a  [*1440]  collectivity of private suits...." n387

In the first quarter of the century, the disagreement on the Court about the public rights model of state litigation was related to the continued viability of the constituent submodel of the public rights model. Justice Brandeis' solitary dissent in Pennsylvania v. West Virginia identified the traditional syllogism of the forms with the private rights model: "They are not proceedings 'instituted according to the regular course of judicial procedure' to protect some right of property or personal right." n388 In doing so, however, he not only failed to carry any other votes with him, but also failed to produce any authority. The statement quoted by Brandeis was not attributed to any source; earlier drafts attributed it to Marbury v. Madison n389 until the Justice's law clerk pointed out that Marbury contained no such statement. n390

Justice Brandeis' attack on the public rights model had yet to be formulated into a coherent strategy premised on a recognizable doctrine of justiciability. n391 But there was no doubt about the prospective nature of his concern nor that he saw it as a matter for justiciability doctrine. As he expressed it to his confidant Felix Frankfurter:

The most terrible thing the Court did was assumption of jurisdiction in West Virginia Natural Gas case. Van D[evanter] by general phrases glides over total absence of jurisdictional basis in Record. I don't care much about natural gas — it will soon be all gone — but the decision is very important as to hydroelectric. n392

And the hydroelectric issue did come in Ashwander v. Tennessee Valley Authority, n393 brought to the Court by means of the stockholder derivative instance of the constituent model.

 [*1441]  D. Constituent Standing

Equity developed its own version of the constituent model premised on the part-whole schema: the shareholder derivative suit. There too, the courts spoke in terms of "jurisdiction" and, as in Ashwander, "standing." The question was whether equity could be invoked at the request of a constituent part to prevent illegal action harmful to the entity as a whole. It was derivative because the constituents' claim was premised on a source-path-goal schema that applied to the entity. The claims sought to address the injury of the corporation. This doctrine served as the model for the taxpayer actions of the late nineteenth and early twentieth centuries.

The first shareholder suit to reach the Supreme Court was Dodge v. Woolsey, n394 a challenge to a state tax on a corporation. The Court invoked the part-whole metaphor, noting "that courts of equity, in both [England and the United States], have a jurisdiction over corporations, at the instance of one or more of their members." The Court also justified this jurisdiction with a familiar doctrine having a communitarian ring: "breach of trust." n396 The Court subsequently upheld shareholder standing in Pollock v. Farmers' Loan & Trust, n397 Smith v. Kansas City Title & Trust, n398 and Ashwander v. Tennessee Valley Authority. n399

The Court's doctrinal concern, when first considering taxpayer and citizen suits, was with the availability of the equity power. This was clear in Crampton v. Zabriskie, n400 a case brought by municipal taxpayers. In  [*1442]  Crampton, the Court held that there was "no serious question" about "the right of resident tax-payers" to use an equity court to prevent the county from creating debts for which the plaintiffs "in common with other property-holders of the county" would eventually be liable. n401 In Crampton, the Court recognized the analogy to the part-whole schema of the shareholder suit: "[T]here would seem to be no substantial reason why a bill by or on behalf of individual tax-payers should not be entertained to prevent the misuse of corporate powers." n402

Five times before Frothingham, the Court passed over the putatively jurisdictional issue of "standing" in taxpayer suits. In Bradfield v. Roberts, n403 Wilson v. Shaw, n404 and Millard v. Roberts, n405 taxpayer suits to enjoin federal actions were rejected on the merits. And, in Hawke v. Smith, n406 and Leser v. Garnett, n407 citizen taxpayer suits to enjoin allegedly unconstitutional state actions also were decided on the merits.

The briefs in these cases underscore the degree to which the questions of "standing" and the constituent model were seen as nonconstitutional and a function solely of the rules of equity jurisprudence. For example, the federal government's brief in Bradfield conceded that the Court would probably want to reach the merits and noted that: "[t]he Government has no strenuous objection to interpose." n408

In Wilson, the plaintiff responded to the argument that "a private citizen has not the necessary interest in the subject-matter of the controversy" by noting that "[t]he objections urged here are the same, which from the beginning have been brought against the jurisdiction of equity in all cases of this character." n409 He relied on the shareholder constituent model as support: "Private citizens under such circumstances occupy exactly the position of stockholders in private corporations...." n410 The  [*1443]  federal government replied by invoking equity's individualist model, citing treatises on equity in support of its proposition that a plaintiff must show "some direct and personal injury to himself above that suffered by others." n411 The Court declined to rule on the sufficiency of Mr. Wilson's interest in maintaining the suit, instead ruling against him on the basis of familiar equity doctrines. It observed that the plaintiff's interest was insufficient to justify the issuance of an injunction to stop work on the Panama Canal, given the balance of hardships. n412

Thus, when the attack came on the constituent model at the federal level, it did not come in terms of standing as we now view it. Rather, it was articulated in much the same way as in Justice Brandeis' opinion in Pennsylvania v. West Virginia, the natural gas case in which he attacked another version of the part-whole public rights model. n413

Fairchild was a constitutional challenge to the adoption of the nineteenth amendment, which granted women the vote. Once again, Justice Brandeis invoked the syllogism of the forms.

Plaintiff's alleged interest in the question submitted is not such as to afford a basis for this proceeding.... In form it is a bill in equity; but it is not a case, within the meaning of § 2 of article 3 of the Constitution ... for no claim of plaintiff is "brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs." n414

Justice Brandeis' attack on the constituent model followed, but it was terse and conclusory: "Plaintiff has only the right, possessed by every citizen, to require that the government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute [a suit] in the Federal  [*1444]  courts...." n415 He cited Tyler as an analogy in support of this last proposition. n416

A reading of the briefs from the federal government in Fairchild, and its companion case, Leser v. Garnett, n417 strongly suggests that Justice Brandeis' opinion in Fairchild was not yet a constitutional restraint on the constituent model. The federal government's brief in Fairchild argued that the action was not a "case" in law or equity under article III because of the absence of a "practical conflict of interest." n418 No cases were cited as authority for this proposition; the brief relied on the refusal of the Court to provide an advisory opinion when requested to do so by President Washington. n419 In contrast, the government's amicus brief in Leser acknowledged without explanation that the state judgment on review did "present a concrete 'case' within the meaning of the Judiciary Article...." n420 As we have seen, Justice Brandeis' opinion in Fairchild did not adopt fully the "practical conflict" position, but rather folded it into the traditional syllogism of the forms. Justice Brandeis also authored the Court's opinion in Leser, which was announced the same day as Fairchild. In Leser, Justice Brandeis argued that the suit could be brought: "The laws of Maryland authorize such a suit by a qualified voter...." n421 That case was decided on the merits despite the absence of a "practical conflict", and upheld the validity of the nineteenth amendment. Thus was the government's attempt to invoke a novel article III "case or controversy" bar temporarily rebuffed and the public rights model and the traditional syllogism of the forms maintained.

Frothingham n422 followed. The Frothingham Court began its analysis with a discussion of nonconstitutional doctrines of equity, proceeded to reason from the constituent model in a way that shows clear prototype effects, then rejected the intermediate status of the public rights model, and finally raised constitutional considerations that helped lead to a  [*1445]  modern conception of standing. Yet, the Court closed not with a doctrine of standing, but with an invocation of the syllogism of the forms.

The Court first considered whether the federal taxpayer could invoke the equity power. n423 The Court used familiar equity doctrines to distinguish the municipal taxpayer standing cases in a manner that displayed a partial reduction-to-prototype effect. It reasoned not that the more "direct" interest of the municipal taxpayer affected the article III calculus of "case or controversy," but that the discretionary availability of the equity power properly considered questions of immediacy and the degree of threatened harm. "The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate...." n424 The Court acknowledged, therefore, the continuing viability of the constituent model for that level of government: "The reasons which support the extension of the equitable remedy to a single taxpayer in such cases are based upon the peculiar relation of the corporate taxpayer to the corporation, which is not without some resemblance to that subsisting between stockholder and private corporation." n425 The federal taxpayer's connection to the body politic, in contrast, seemed too far removed from the corporate prototype of equity's constituent model. The Frothingham Court characterized the federal taxpayer's constituent interest as "minute," "indeterminable," and "so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity." n426

Frothingham makes historical sense as a case about the availability of an equitable remedy. On a doctrinal level, it was the invocation of equitable discretion to deny a remedy on the basis of the directness of the plaintiff's injury. The Court started with the constituent model available in equity and used prototype reasoning to exclude taxpayer actions as too great an extrapolation. The opinion was not entirely consonant with the public rights model known to the Framers, for it saw the corporation, and not the society, as the prototype of a part-whole organization. But the opinion maintained a certain doctrinal consistency. The English writs of mandamus, prohibition, and certiorari were available to a stranger without a direct interest. n427 In those cases, however, the court retained discretion to adjust or withhold the remedy in order to prevent abuse and to achieve just results. n428 The courts' discretion derived from the fact that, although these writs were devices of the King's Bench, and thus remedies "at law," they also were instruments  [*1446]  of the sovereign's power and therefore implicated the prerogative of royal discretion typical of equity. n429

Frothingham's reliance on separation of powers notions can be understood as the invocation of structural concerns to guide the discretionary use of the court's equitable power. n430 Indeed, Justice Brandeis' unheeded argument thirteen years later in Ashwander was premised on exactly this blend of equitable discretion and prerogative writ practice. n431

In Frothingham, as in Fairchild, the Court was struggling with the constituent model. Frothingham did not recognize an intermediate status for the public rights model. Instead, it insisted on an individualist model: The question of additional taxation was "essentially a matter of public and not of individual concern." n432 But the Court stayed decidedly within the tradition in its notion of justiciability, still reasoning in a quite old-fashioned way about the scope of the judicial power, as had Justice Brandeis. To the 1923 Court, no less than to the Court of a hundred years earlier, a legal question had to "assume such a form that  [*1447]  the judicial power is capable of acting on it." n433 Because the Frothingham Court concluded that the case did not present a proper bill in equity, it held that the case did not assume a recognizable form; because the Court did not recognize the intermediate nature of the nineteenth century public rights model, it did not see before it one of those things to which the judicial power extended. The Court held that:

The party who invokes the [equity] power must be able to show ... that he has sustained or is immediately in danger of sustaining some direct injury.... If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official.... Here the parties plaintiff have no such case. Looking through the forms of words to the substance of their complaint, it is merely that officials of the executive ... will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy.... n434

What Frothingham had accomplished through its equity reasoning was to recreate the private rights model as the only available form. To invoke the equity power, the plaintiff had to establish the causal source-path-goal schema — that is, the plaintiff had to establish "that he has sustained or is immediately in danger of sustaining some direct injury." Direct injury was thus essential to make a proper bill in equity, and a proper bill was necessary to make a "case." Drop the syllogism of the forms, however, and you have the modern doctrine of standing: Direct injury (as in the causal source-path-goal schema) becomes necessary to a constitutional "case."

Neither Frothingham nor Fairchild became cases of "standing" until later. n435 Rather, the Court continued to talk of "standing" solely in the context of equity as it had before. In fact, only a few years after Frothingham and Fairchild, the Court reaffirmed that "standing is a question going to the merits, and ... determination [of standing] is an exercise of jurisdiction." n436

In the meantime, Justice Brandeis continued to argue — usually alone — the broader implications of his Fairchild opinion for the constituent model. In 1923, the same year as Frothingham, he failed to convince his colleagues that the original bills in Pennsylvania v. West Virginia "present[ed] neither a 'case' nor a 'controversy' within the meaning of the Federal Constitution," but were instead "instituted frankly to secure from this Court a general declaration that the West Virginia Act  [*1448]  ... is unconstitutional." n437 Thirteen years later in Ashwander, he tried to destroy equity's constituent model at its source. His memorandum to his colleagues argued that:

Stockholders may, within the recognized limits, invoke the aid of the courts to enjoin illegal acts which threaten their own property rights. But they are no more entitled to a judicial remedy to restrain action which ... do not imperil their property, merely because the action is alleged to be illegal. They are not guardians of the public. The function of guarding the public interest against acts ultra vires or otherwise illegal rests with the public officials. The belief that the company action is unconstitutional gives the stockholder no greater right than that possessed by any other citizen. n438

Ultimately, Justice Brandeis dropped this position and argued that the primary obstacles to the shareholders' suit were nonconstitutional. The final version of his argument — which garnered the support of Justices Cardozo, Roberts, and Stone — characterized Tyler, Fairchild, and Frothingham merely as examples of the canon of judicial self-restraint that "[t]he Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation." n439 In a historically overlooked portion of the opinion, Justice Brandeis concentrated much of his fire on the impropriety of the shareholder derivative version of the constituent model, trying to limit or disapprove the holdings of Pollock, Brushaber, and Smith. n440

In 1937, in a per curiam opinion denying the motion challenging Judge Black's appointment, the Court interpreted Tyler, Fairchild, and Frothingham as limiting the availability of the "judicial power" to one who "has sustained, or is immediately in danger of sustaining a direct  [*1449]  injury...." n441 But, the degree to which this constitutionalized interpretation was not yet a conventional understanding of these cases is underscored by the Court's conclusory rhetoric, referring to this as an "established principle." n442 It was another year before Justice Frankfurter linked the term "standing" with article III in his concurring opinion in Coleman v. Miller. n443 And, even then, it came very much by surprise to the participants and the Court.

In Coleman, Kansas legislators challenged the means by which their state had voted to ratify a pending amendment to the Constitution. n444 The legislators filed a petition for a writ of mandamus in the state courts. The state court upheld its jurisdiction over the mandamus petition, but denied relief. The Coleman Court rejected "the contention that petitioners lack an adequate interest to invoke our jurisdiction...." n445 The majority held that the Kansas legislators had "standing" in the sense of Owings v. Norwood n446 because they had alleged an infringement of their right to vote and thus "come directly within the provisions of the statute governing our appellate jurisdiction." n447 The Court cited Leser for the proposition that it had jurisdiction, noting the contrast to Fairchild, which had been decided the same day. n448

The Coleman majority also rejected decisively the notion, put forward by Justice Frankfurter, that jurisdiction only extended to cases that fit the private rights model, that is, cases of "private damage." n449 The Court cited Frothingham to illustrate that the question of a taxpayer's interest raised not a threshold problem of justiciability, but rather was only a matter of degree. n450 The Court, nevertheless, held the case nonjusticiable as presenting a political question. n451

The majority's discussion of these questions reflected the argument in the federal government's amicus brief, signed by Solicitor General Robert Jackson and by Special Assistant Paul Freund. The brief noted that the sufficiency of the plaintiffs' interests under Fairchild was a problem that only arises in a federal action. n452 The government, therefore, accepted that the decision of the state courts below to entertain the suit  [*1450]  "does not present a Federal question." n453 The only question of jurisdiction, according to Jackson and Freund, was whether the Court could consider the case under its jurisdictional statute. Since the legislators had set up a right or title of their own — "the privilege of carrying out their functions as public officers" n454 — the brief concluded that "[s]tatutory jurisdiction in this Court, then, clearly exists." n455

Having disposed of the Fairchild and Owings questions, the brief then turned to what it viewed as a question of an entirely different order: "[T]he essential question is not strictly jurisdictional but relates rather to ... standing...." n456 The brief concluded that standing was present in the Kansas case because the petitioners were legislators who claimed an infringement of their right to vote. n457

Although the government's position and its understanding of the foundations of the standing concept were accepted in the majority opinion, Justice Frankfurter had an entirely different view. At oral argument, Justice Frankfurter asked Mr. Coleman's lawyer to reconcile the case with Fairchild. The petitioners subsequently submitted a memorandum brief on jurisdiction that reveals how startling the question really was:

Mr. Justice Frankfurter on the bench asked me to reconcile this case with Fairchild v. Hughes. We regret our inability to do so in oral argument, but the case of Leser v. Garnett, decided the same day and reported in the same volume with Fairchild v. Hughes, is such a complete answer that it seems as though I must have misunderstood the purport of the question. n458

....

[T]he state is a party to the litigation and all of the people of the state are interested.... So far as the right of the parties to maintain the suit in the state court is concerned, it is definitely settled and that brings us squarely within the rule of Leser v. Garnett. This is so evident that it seems I must have misunderstood the real purport of the question. n459

 [*1451]  It is understandable that counsel missed the import of Justice Frankfurter's question and relied on the public rights model of mandamus by insisting that "all of the people of the state are interested." And, I think, it is safe to assume that Justice Frankfurter's question was calculated. For, in his concurring opinion, Justice Frankfurter opined, in contrast to that which the parties argued, that courts could only consider "cases and controversies." n460 Invoking Fairchild, he argued that "[i]n the familiar language of jurisdiction, these Kansas legislators must have standing in this Court." n461 "'Private damage' is the clue ... and determines [the] scope ... of [such] cases in this Court...." n462

Thirteen years later, in Joint Anti-Fascist Committee v. McGrath, n463 Justice Frankfurter took Coleman a step further and made the first attempt to synthesize this private rights model, the constitutional phrase, and the various "standing" cases of the previous half-century into a single coherent doctrine concerning the sufficiency of the litigant's interest required by article III and related prudential considerations. n464 It was not until Doremus v. Board of Education n465 that a full Court dealt with standing in exclusively constitutional terms, n466 and not until Baker v. Carr n467 and Flast v. Cohen n468 that the Court fully discussed the new doctrine.

For over a hundred years, the metaphor of "standing" was shorthand for the question of whether a plaintiff had asserted claims that a court of equity would enforce. Frothingham articulated a familiar doctrine of equity concerning direct and irreparable injury, rejected the application of the constituent model as a matter of degree, and then applied a traditional notion of justiciability that focused on observance of the forms. But Frothingham arose in the context of a larger dispute about the viability of the representational and constituent models. In the end, Justice Brandeis all but gave up the fight. Then, someone else provided a label to comprehend both the private rights model and those cases that talked about the sufficiency of the plaintiff's personal  [*1452]  interest in terms of "jurisdiction." That label, of course, was one that fit metaphorically: "standing." A meaning transplant was effected, and the modern doctrine of standing was born.

E. Ideology and the Motivation of Standing

There are several possible historical explanations for the successful convergence of the private rights model and the "standing" metaphor into modern constitutional standing doctrine. Five factors seem to have contributed to this convergence.

First, the passage of the federal question jurisdiction statute and the extension of the removal jurisdiction in 1875 n469 affected significantly the workload of the federal courts. From the trial courts to the Supreme Court, "they unloosed a flood of litigation utterly beyond the existing capacity of the courts to handle." n470 Between 1870 and 1890, the number of cases on the Supreme Court docket grew almost 300 percent. n471 During the same period, the number of nonbankruptcy cases in the lower federal courts more than doubled. n472 For the next fifty years, Congress struggled with the problem of an unmanageably large caseload in the federal courts both by jurisdictional tinkering and by wholesale court reorganization. n473

It should come as little surprise that the courts were not passive during this onslaught. Several of the classic exclusionary doctrines of federal jurisdiction developed in this period, including both the well-pleaded complaint rule n474 and the independent and adequate state ground rule. n475 Moreover, the growth in the federal workload and the search for limits coincided with the systemization of the law of equity, n476 from which standing law grew. Starting as a question of entree  [*1453]  to equity jurisdiction, "standing" could, in a time of severe docket pressures, naturally evolve into a doctrine about entree into the federal court system itself.

Second, during the late nineteenth and early twentieth centuries, the modern administrative state began to take root. The Interstate Commerce Commission was formed in 1887, the Federal Trade Commission in 1913, and the Federal Power Commission in 1920. Administrative law, of course, created the potential for more adjudication, with its strain on court workload. Administrative agencies also created a vastly larger machinery of government, increasing the interaction between government and the citizenry and the potential for the invocation of the public rights model. This increasing interaction was a potential source of strain for the previous equilibrium of public and private rights in the legal and social system. In each of their respective areas, the administrative regimes created new webs of legal requirements and potential entitlements in previously unregulated corners of society. With the extension of government regulation to vast new domains, the public rights model and application of the classic model of rights and correlative remedies to redress all injuries presented inordinate new problems.

Third, at precisely this time an old but previously marginal legal concept stepped to the fore in a dramatic way. "From ... 1880 to 1920, damnum absque injuria [that is, damage without cognizable injury] emerged as the central issue of theoretical concern" to those attempting to synthesize and explain the law. n477 Perhaps not coincidentally, this concept served to defuse the pressures of the administrative state.

The theoretical incorporation of damnum absque injuria revolved around three major areas of inquiry. They were: (1) the emergence of the concept of legally protected interests; (2) focus on economic competition as an alternative model ...; and (3) the problem of uncorroborated liberties generally.... To the extent that others have the legal liberty to act or not to act, the damage they inflict on us violates "no [legal] rights" of ours, and we have no claim on the legal system to protect us from such harms or to provide us with remedies. n478

The potential problems of the administrative state could thus be forestalled by the extension of a traditional doctrine: damnum absque injuria counselled that "[l]egally protected interests are not granted absolute protection, as the concept of protected rights had misleadingly implied." n479 The  [*1454]  administrative state could be domesticated; extensive new regulations and interests could be created without necessarily creating new legal entitlements.

These three notions raised by the incorporation of damnum absque injuria into the legal mainstream are reflected with clarity in the nonconstitutional precursors of standing, especially in the equity and early administrative law cases: the legal interest test, n480 the denial of competitor "standing," n481 and the repeated denial of injunctive relief to litigants who had suffered actual harm. n482 While not yet a theory of "standing," damnum absque injuria provided a basis for, and a model that justified, a later constitutional doctrine that recognized the validity of a complaint but refused to provide a judicial forum.

Fourth, the rise of liberalism in the nineteenth century led to the primacy of the private rights model and to modern standing law in two ways. A basic tenet of liberalism is the primacy of the individual as the focus of the political and moral world. n483 "Standing" is a conceptualization of the individual as the primary rights-holder, to the exclusion of his or her place in a larger community of interdependent legal and social interests. n484 Liberalism is further premised on the freedom of each individual to choose his or her own, equally viable ends. n485 Accordingly, it focuses upon a regime that achieves agreement on process rather than end goals. n486 Liberalism intensified the preexisting proceduralism of the law; where the writ system had treated procedure and substance as closely interrelated, standing law turned from the legal interest test to focus instead on a definition of process separate from the substantive merits of the reason for which it is invoked. This concept of neutral, process-oriented criteria, entirely separated from the merits, constitutes the second major component of the "standing" metaphor, as we have seen. n487

Fifth, the thrust of the enlargement of the federal court workload  [*1455]  and the weltanschauung of liberalism interacted in a specific, synergistic way. It occurred during the time of substantive due process and the exercise of expansive federal judicial power in the economic sphere to invalidate progressive legislation. n488 It is thus no accident that many of the early taxpayer standing cases involved attacks on federal legislation addressed to an activist conservative Court. n489 The first few were rejected on their merits. But soon the primary stance of the liberal judicial resistance was the development of doctrines of procedural limitation. n490 In this formative period, Justice Brandeis reported to his confidant Felix Frankfurter his famous remark to Justice Holmes: "I tell him, 'the most important thing we do is not doing.'" n491 Frothingham was a product of the liberal judicial resistance to substantive due process, as Justice Douglas explicitly acknowledged in his separate opinion in Flast v. Cohen. n492

While my analysis suggests that the development of standing was a calculated effort, this account is consistent with a theory that stresses the unconscious, ontological effects of the relevant metaphors and cognitive models. It is the concept of motivation that explains the relationship between conscious intent and these unconscious, ontological effects. People use cognitive models and metaphors to express and accomplish their purposes. In reimagining the world, we make use of the existing conceptual system.

[T]he theory we have given makes a prediction: the generated images will be among the conventional images of the culture, they will make  [*1456]  use of cultural knowledge, and there will be one or more metaphors already in the conceptual system that link the image and the knowledge to the meaning.... In short, the principles we have proposed to characterize the nature of motivation ... constrain what such images can be like. n493

[T]he fact that extensions from the center of categories are neither predictable nor arbitrary, but instead are motivated, demonstrates the ecological character of the human mind.... [T]he term "ecological" [expresses] the sense of a system with an overall structure, where effects cannot be localized — that is, where something in one part of the system affects things elsewhere in the system. Motivation depends on overall characteristics of the conceptual system, not just local characteristics of the category at hand. n494

In trying to develop doctrines of jurisdictional limitation, Justices like Brandeis and Frankfurter naturally reached for the cognitive tools at hand. They naturally focused on those models and metaphors that fit their purposes. And they naturally chose the private rights model and the "standing" metaphor, which had become conventional in legal culture.

The liberals were interested in protecting the legislative sphere from judicial interference. Their goal was to assure that the state and federal governments would be free to experiment with progressive legislation. n495 The private rights model was not just an available prototype,  [*1457]  it was an ascendant prototype that would serve their purposes well. By excluding the public rights model with its part-whole schema, the liberals could preclude any dissatisfied private citizen from invoking the Constitution in the courts to challenge the progressive programs enacted by the polity.

Moreover, the source-path-goal schema of the private rights model could make a distinct and important contribution to the liberals' aims. The broad social and economic experiments of the New Deal, like the hydroelectric program at issue in Ashwander, would have varied and unpredictable effects throughout society. The causal source-path-goal schema limits litigation to direct victims. It therefore serves to insulate from judicial scrutiny governmental actions with many, diffuse, and indirect effects. It was just this insulation that was required for the success of the social and economic programs that were the center of Brandeis' and Frankfurter's concern. n496

In adopting these cognitive tools, the effect on the liberal Justices was ecological: This explains Brandeis' position, in Willing v. Chicago Auditorium Association, n497 that a declaratory judgment was not a proper bill in equity and, thus, was beyond the federal judicial power. His program of judicial restraint entailed a limitation of the federal courts to suits that fit the source-path-goal schema of the private rights model. The declaratory judgment action did not fit comfortably with that schema. By definition, there is no injury at the time a declaratory judgment plaintiff seeks the court's intervention. The suit, therefore, has no source.

As we have seen, Justice Brandeis never fully articulated these concepts. The Court had already begun, in cases like Tyler, Davis, and Massachusetts State Grange v. Benton, n498 to apply equitable, preconstitutional doctrines of directness of injury and of standing, to reject citizen claims in neutral, process-oriented terms. In Fairchild, Justice Brandeis connected these notions to the traditional article III syllogism of the forms. Ashwander was a partial retreat, recasting the same cases back into their equitable forms as discretionary doctrines. Then, Frankfurter grasped the cognitive tools and fashioned an article III doctrine called "standing" that made a constitutional prerequisite of the prototypical private rights model. Standing law was, thus, the ultimate constitutional legacy of the program of judicial conservatism that was the liberals' response to the substantive due process era.