The standing doctrine is the Rorschach test of federal courts. In theory, the doctrine serves a distinct function, namely ensuring that a litigant is the proper party to bring a claim in court. Yet standing remains one of the most contested areas of federal law, with criticisms of the doctrine nearing the number of commentators.

Indeed, even the most basic question of the origins of the standing doctrine eludes scholars. Conventional accounts focus on the nature of Article III’s case or controversy requirement, the collision between the administrative state and private rights-based models of judicial resolution, and caseload management. In contrast, one revisionist account, proposed by Steven Winter and Cass Sunstein, is that progressive Justices purposely invented and constitutionalized the standing doctrine in order to insulate New Deal agencies from judicial review.¹

When advanced just twenty years ago, this New Deal “insulation thesis” inverted the conventional perception of the doctrine’s political valence. Rather than supporting the conservative goal of keeping broad-based public interest litigation out of court, restrictive standing requirements may originally have achieved precisely the opposite result: preserving and enshrining the liberal New Deal administrative state.

While provocative, prominent, and now largely considered conventional wisdom as the “definitive history of standing”² and “part of the canon of Constitutional law,”³ the insulation thesis is thinly theorized and rests on fragile empirical grounds. Cases cited in support of the insulation thesis are haphazardly selected, and many of these cases are uninformative about, peripheral to, or plainly contradict the insulation thesis. Indeed, Professor Steven Winter—who first advanced the claim in 1988 in a seminal piece in the Stanford Law Review—himself once noted:

When I first claimed that standing doctrine was invented by Justices Brandeis and Frankfurter, I was unsure whether my documentation would be sufficient . . . . Consequently, I was surprised by the speed with which my revisionist claim was first credited as true and then consigned to the general stock of conventional wisdom.⁴

II. Testing the Insulation Thesis: Our Approach

In our Article, we synthesize the understanding of the insulation thesis and provide the first systematic quantitative empirical study of the historical evolution of the Supreme Court’s standing doctrine. Examining over 1,500 cases cited in major historical treatments of the doctrine and backdating all merits votes to 1921, we compile a new database of every contested standing and merits issue decided by the Supreme Court from 1921-2006. Armed with this extensive data set, we find compelling support for one version of the insulation thesis in the New Deal period.

Our data collection approach is threefold. First, to overcome haphazard case selection, we leverage a large number of sources (e.g., historical treatises, law review articles on the origins of the standing doctrine, Westlaw Key Numbers, and Lexis Headnotes) to enumerate the potential population of over 1,500 standing cases. Second, we read each of these cases to validate, classify, and disaggregate every express disagreement on a standing issue, recording votes cast by each Justice as favoring or disfavoring standing, or as unclear.

For example, consider the well-known case of Lujan v. Defenders of Wildlife. In that case, environmental plaintiffs challenged a regulation limiting the consultation process for federal agencies under the Endangered Species Act (ESA). Justice Scalia, writing for a six-Justice majority, found that litigants failed to allege particularized injury and that the citizen suit provision was insufficient to grant standing under the ESA for a procedural injury. Commanding only a plurality, Scalia further concluded that plaintiffs failed to show that a victory on the merits would redress the alleged harms. One jurisprudentially meaningful way to code the case would be as a 6-3 split on whether respondents have standing. Yet the opinions also contain additional information on three distinct standing issues: (1) whether plaintiffs have alleged a particularized injury (with Justices Blackmun, O’Connor, and Stevens answering in the affirmative, and all other Justices opposed); (2) whether the injury is redressable (with the same split except for Justices Kennedy and Souter not clearly taking a position); and (3) whether procedural injuries may be statutorily defined when they would otherwise not meet Article III requirements (with Justices Kennedy, Souter, Blackmun, and O’Connor answering in the affirmative, Justices Scalia, Rehnquist, Thomas, and White opposed, and Justice Stevens not clearly addressing the issue). By noting each of these distinct disagreements, our data collection captures key jurisprudential differences between the Justices, thereby allowing us to identify a meaningful population of standing issues and to examine the implications of the insulation thesis.

Lastly, we augment this new standing data with all judicial votes on the merits in roughly 5,400 cases, backdating the Supreme Court Database to 1921. We then apply modern measurement methods to summarize the differences in voting patterns in one dimension. Figure 1 presents merits preferences (sometimes called “ideal points”) for three natural courts. The left panel presents the pre-1937 Court. The short vertical dashes represent the estimated ideal point, and the horizontal lines capture uncertainty. The lower panels present the estimated positions for each of 135 cases that divide the majority and minority (“cutlines”). The estimates track qualitative distinctions between the Justices. The “Four Horsemen” (Justices McReynolds, Butler, Sutherland, and Van Devanter) anchor the right wing of the Court, while the “Three Musketeers” (Justices Stone, Cardozo, and Brandeis) anchor the liberal wing. Chief Justice Hughes and Justice Roberts (epitomized in the switch in time that saved nine) are pivotal Justices. The middle panel presents comparable estimates for the 1942-1944 terms, showing the realignment that resulted from the New Deal appointees. Justices Black and Douglas, the two great liberals, often were at odds with the (relatively) more conservative Justices Jackson and Frankfurter (“leader of the Court’s conservative core”)⁵ over incorporation and judicial restraint. This panel also emphasizes that these estimates are relative—while Frankfurter is conservative compared to the other FDR appointees, the entire 1942–1944 Court shifted to the left of the pre-1937 Court. For comparison, the right panel presents estimates for the Rehnquist Court, which are consistent with conventional wisdom. The cutlines also show that the cardinal location (or apparent “left skew” of the ideal points) is entirely relative: most of the cutlines that divide the majority and minority are also towards the left on the cardinal scale. The cluster of cutlines in the space between Justices O’Connor and Souter represent the frequent 5-4 split on the Rehnquist Court. The merits data thereby enables us to formalize qualitative assertions by insulation proponents of who the “liberal” and “conservative” Justices are (although such characterizations do not warrant a strong “attitudinal” or “realist” interpretation).

Figure 1: Illustration of ideal points of Justices for three natural courts. The top panels represent the estimated locations where left can be interpreted as more “liberal” and right can be interpreted as more “conservative.” Short red vertical dashes represent the best guess of Justice positions (posterior medians), and horizontal segments represent uncertainty (95% credible intervals). The bottom panels overlay estimated cutlines that separate the majority and minority for all decisions by that natural court. This illustrates that only the relative positions of the Justices matter: for example, the right-skewed marginal distribution of ideal points for the Rehnquist Court matches similar skew of cutlines. More importantly, these estimates are consistent and formalize qualitative assertions about which Justices are “liberal” and “conservative.”

In sum, our data encompass 47,570 votes on 5,497 unique issues and the full population of 229 standing issues on which Justices expressly disagree. Using modern statistical methods, we can then capitalize on crucial variation across Justices, time, and cases to assess the insulation thesis.

III. Results

Our results clarify, synthesize, and unify existing accounts of the early rise of the standing doctrine, and provide insight into its more recent evolution. We find compelling support for one version of the insulation thesis, with three central findings that refine extant accounts.

First, the insulation thesis does not fully explain the conception or invention of the modern standing doctrine. From 1921-1930, standing arose largely unanimously. Progressives and conservatives exhibited no systematic disagreement as to the doctrine. Early unanimity may be consistent with an alternative explanation of caseload management, occurring at the same time of the Supreme Court’s conversion to the discretionary docket, and is also consistent with existing evidence that the seeds of the doctrine are traceable to the 18th and 19th centuries.⁶

Second, unanimity collapsed with the New Deal period, and cases from the 1930s and early 1940s provide substantial support for the insulation thesis. Standing disagreements came to embody systematic differences across Justices, with liberal Justices disproportionately denying (and conservatives granting) standing. To illustrate the key finding, Figure 2 plots the correlation between merits views (from Figure 1) on the x-axis and the proportion of times a Justice favors standing. The left panel plots pre-1940 cases and the right panel plots post-1940 cases. Each circle represents one Justice, with the area weighted by the number of cases; lines represent iterated linear fits to the data (accounting for measurement error in merits views). Although inherently based on small sample sizes, Figure 2 provides strong evidence in favor of the insulation thesis: before 1940, liberals were far more likely to deny standing, while conservatives were far more likely to grant it. The figure also shows that insulation is not confined to individuals. Justice Frankfurter, for example, is no mere outlier in Figure 2, as standing disagreements reflect underlying differences between progressives and conservatives. The trend is most pronounced in cases involving New Deal legislation and administrative agencies. The period of liberal insulation was short, unraveling in the 1940s. By 1950, the doctrine’s political valence reversed entirely. Compared to the merits, liberals were uniformly more likely to favor—and conservatives more likely to deny—standing. The contrast between the sharp conservative valence of the post-1950 period and the liberal valence of the New Deal era provides striking evidence for progressive use, if not invention, of the standing doctrine during the New Deal period.

Figure 2: Reversal in merits-standing preferences over time. The left (right) panel presents pooled merits ideal points on the x-axis against the proportion of votes cast by each Justice favoring standing in contested cases from pre-1940 (post-1940) cases. The area of each observation is proportional to the number of issues. To account for measurement uncertainty, the green lines represent least squares fits to the data from 50 draws of the posterior distribution of merits ideal points, and blue lines represent robust MM fits to the same data.

Third, perhaps most compelling is that individual Justices track the valence shift of the standing doctrine. For example, the voting patterns of Justices Douglas and Black reflect the transformation of the doctrine. As the great liberal and environmentalist, Justice Douglas is typically known for his permissive take on the standing doctrine. Dissenting in Sierra Club v. Morton, Douglas famously cited to an article entitled Should Trees Have Standing?, noting that “[t]he voice of the inanimate object . . . should not be stilled.”⁷ Yet Justice Douglas voted largely to deny standing during his early years (a compelling fact missed, as far as we are aware, by existing accounts). It was only after 1950 that Justice Douglas adopted his “liberal” views on standing, favoring standing in every contested case heard thereafter. Most telling, perhaps, is that Justice Douglas himself expressed an awareness of the insulation effect over a decade before the insulation thesis was advanced in law reviews. In Schlesinger v. Reservists Committee to Stop the War, he noted that standing “make[s] the bureaucracy . . . more immune from the protests of citizens.”⁸

In short, our research reveals that while the seeds of the standing doctrine existed prior to the New Deal, the doctrine took a distinct political valence around the time of the New Deal that —when contrasted with decades of nearly uniform conservative political valence post-1940—is resoundingly consistent with the insulation thesis.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Daniel E. Ho is an Associate Professor of Law at Stanford Law School. Erica L. Ross received her J.D. from Stanford Law School and is currently a law clerk to the Honorable David S. Tatel on the U.S. Court of Appeals for the District of Columbia Circuit, 2009-10.

This Legal Workshop Editorial is based on the following Law Review Article: Daniel E. Ho & Erica Ross, Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of Evolution of Standing, 1921-2006, 62 STAN. L. REV. 591 (2010).

Then there are the fictions that are critical to vindicating other important values. The Ex parte Young fiction, for instance, is necessary to ensure that federal law is obeyed by state entities without offending formal Eleventh Amendment immunity. Thus, although we know that when we sue state employees in their official capacity we are suing the State itself, the fiction that it is the employee who is being sued obscures the real parties at stake, thereby guaranteeing a voice for federal courts when states transgress federal constitutional boundaries.

Finally, there are the fictions that we have the freedom to accept or reject. These are fictions that have serious consequences—accepting one or the other narrative can affect policy choices or case outcomes. The research detailed here is about two narratives that pervade the jurisprudence regarding litigation seeking damages relief against federal officials who violate the Constitution. In short, I show here that two assumptions—first, that damages actions against federal officials rarely succeed, and second, that the reason for this is a particular kind of defense to litigation called qualified immunity—are fictional, or at least have little empirical support. This research calls into question certain policy prescriptions and jurisprudential trends that have been based on these assumptions. It also reinforces the need for a greater empirical focus on the work of federal district courts.

The story told here begins in 1971, with a Supreme Court decision that was the first to recognize a damages cause of action for constitutional violations by individuals acting under color of federal law, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. In that case, Webster Bivens, a resident of Brooklyn, New York, was arrested in the early morning hours on November 26, 1965, by what turned out to be five, not six, agents of the Federal Bureau of Narcotics. The agents entered his home with weapons drawn, searched his apartment, and arrested him on suspicion of narcotics trafficking, but the criminal complaint against him was dismissed. Mr. Bivens subsequently filed suit in federal district court, seeking damages against each officer for violations of his Fourth Amendment right to be free from unreasonable searches and seizures. The case wound its way to the Supreme Court, and in 1971 the Court announced that Mr. Bivens could pursue his claim. And although the Federal Bureau of Narcotics is no longer around (displaced by the Drug Enforcement Agency in 1973), the Bivens side of the “v” survives, wounded but still standing.

At the time Bivens was announced, the jurisprudence of constitutional remedies was in flux. The Supreme Court had recognized an affirmative right of action to seek injunctive relief against state officials as early as 1908 in Ex parte Young, but this invitation was not fully embraced until the civil rights movement was in full swing, and the kinds of systemic reform litigation that are associated with public rights litigation—including desegregation remedies in northern cities and structural reform of prisons—did not emerge until the late 1960s. And although the right to seek injunctive or declaratory relief against state governments, through the fiction of official capacity claims, may have had a long provenance, there was little litigation directed against the federal government for violations of the Constitution. When such cases arose, it was assumed that a right of action existed to enjoin federal officials and agents from violating constitutional law, but courts were rarely pressed into service for that endeavor.

Damages litigation, on the other hand, rested on much less secure doctrinal footing. Section 1983 of Title 42 of the United States Code had been passed during Reconstruction, and it explicitly created a cause of action for both damages and injunctions against individuals acting under color of state law. For nearly one hundred years after its enactment, it was rarely used, in part because courts and litigants interpreted it to apply solely to be used to strike down “Black Codes” and the like that were passed in southern states after the Civil War. Not until 1961 did the Court give Section 1983 much remedial force, when the Court announced Monroe v. Pape, and it took until 1978 for the Court to find that Section 1983 applied to municipal entities.

Still, had New York City police officers arrested Mr. Bivens, his claim against them would have been on the newish side but basically unremarkable and statutorily grounded in Section 1983. Because Section 1983 by its terms applies only to state and local actors, however, it provided him with no basis for bringing an action against federal officials for violations of the Constitution. The lower courts in the original Bivens case had rejected the plaintiff’s request for damages, leaving Mr. Bivens with no remedy for the violations of his Fourth Amendment rights. It was this dilemma—the prospect of a right without a remedy—that prompted Justice Harlan’s concurrence declaring that for Mr. Bivens, “it is damages or nothing.”² These words are echoes of Chief Justice Marshall’s insistence in Marbury v. Madison that where there is a right, there must be a remedy.

Although the specific claim pursued in Bivens related to alleged violations of the Fourth Amendment, the Supreme Court and lower courts soon extended Bivens liability to other kinds of constitutional violations. Thus, the Supreme Court put plaintiffs injured by federal officials’ unconstitutional conduct in nearly the same shoes as victims of state and municipal unconstitutional conduct, who retained a statutory right to seek damages and other remedies under Section 1983. Precisely because Bivens was a matter of judicial implication, however, the Court retains and has exercised the power to limit the extent of any Bivens remedy, consistently restricting the reach of Bivens from 1980 on. And so the current state of Bivens litigation stands weakened, prompting Laurence Tribe to suggest that an end to the remedy is near. Meanwhile, since Bivens’s inception, there have been concerted legislative efforts to “fix” the perceived problem of having an individual liability approach to constitutional violations by federal officials. Twenty-one bills were introduced between 1973 and 1985 seeking to substitute direct governmental liability for individual officer liability, of which three were reported to committee. Although that effort failed, similar proposals are renewed each decade.

So the question is presented: should we care? What are the remedial consequences of recognizing Bivens actions? Since Bivens began to be critically evaluated by the Supreme Court in 1980, two assumptions have emerged about Bivens litigation. First, commentators and courts tend to assume that Bivens claims are rarely successful. This tends to undermine the claims of those who believe the Court should recognize a wider category of Bivens claims: if Bivens claims are not successful, why add more work to the docket of already over-burdened federal courts?

The second assumption relates to the first, and is an attempt to explain why Bivens claims fail. On this account, they fail because of a doctrine called qualified immunity. Qualified immunity shields government officials from personal liability for damages when they behave reasonably or when the law governing their conduct is unclear. It is available to Bivens and Section 1983 defendants alike, and commentators and courts see it as a substantial barrier to constitutional litigation like Bivens.

Although both assumptions are related to each other, they do not necessarily lead to the same policy prescriptions. Some who accept that Bivens claims are rarely successful do not care why they fail: the failure itself suggests that Bivens claims are usually insubstantial and that there is no reason to recognize any more of them than already have been established. On the other side of the debate are individuals who see in the failure of Bivens litigation a sign that a different model of liability should be used. Thus, rather than expanding the Bivens cause of action, these commentators suggest that claims that would normally be brought as Bivens claims against individuals should be brought instead against governmental entities, through a statutory waiver of the federal government’s sovereign immunity. For these commentators, the role that qualified immunity plays in the disposal of Bivens causes of action is critical: liability of the government, or entity liability, will not include qualified immunity, because qualified immunity is for individuals, not entities.

It is into this breach that I seek to insert some empirical observations. These assumptions about the outcome of Bivens litigation—that it is highly unsuccessful and that the availability of qualified immunity is a substantial reason for that lack of success—have never been empirically tested. Many researchers have evaluated the success of civil rights litigation in general, but no detailed empirical study has focused on Bivens litigation exclusively, aside from two studies published more than twenty-five years ago that are dated and suffer from serious methodological flaws. This has not stopped people from bandying about figures related to Bivens success. For instance, nearly every analysis of Bivens has asserted that 12,000 claims were filed between 1971 and 1985 with only 4 judgments sustained for plaintiffs. These numbers all come from the same source: a statement made by one Government attorney at a congressional hearing in the 1980s, when legislation was being considered that would have done away with the Bivens individual liability model and embraced the governmental liability model. Some estimates of Bivens success are based on even more informal reports, and there is no indication of the empirical basis for the numbers: how cases were identified; what consituted a Bivens case; what defined success, etc. And while many notable authors—Margo Schlanger, Theodore Eisenberg, and Stewart Schwab to name a few—have conducted extensive studies of the relative success of civil rights claims in general, those scholars have not considered the success (or lack thereof) of Bivens­­ litigation in particular. So while there is a widespread assumption that Bivens claims are remarkably less successful than other kinds of civil rights litigation, there is little in the way of data to support that proposition.

If anything, the second assumption—that qualified immunity is the driving force behind Bivens failures—has even less established empirical support. One study looked at the way in which published federal court opinions resolved qualified immunity defenses, concluding that the defense led to a dismissal in 80% of the cases in which it was considered, but this study did not evaluate Bivens claims in particular, nor did it look at all of the other reasons that Bivens claims fail. No one has examined the role that qualified immunity has played relative to other bases for dismissal of Bivens claims.

Thus, I was motivated to study both of these assumptions. Looking at the Bivens cases filed over three years in five representative district courts, I conclude that there is little empirical support for the fictions that motivate most Bivens commentary. Defining “success” as other empiricists do when studying civil litigation—a judgment entered in favor of the plaintiff, a settlement of some kind, or a stipulated/voluntary dismissal by the plaintiff—the data I collected show that Bivens claims are on the low-end success-wise, but not nearly as unsuccessful as had previously been reported. Depending on the procedural posture, presence of counsel, and type of case, success rates for Bivens suits range from 16% to more than 40%, which is at least an order of magnitude greater than has previously been estimated.

Moreover, when compared to other grounds for dismissal, qualified immunity barely merits a footnote. Out of the more than 240 cases that I examined, qualified immunity was dispositive in only 5 cases. Traditional methods of case disposition were by far more prevalent. This sharply contrasts with estimates of the role of qualified immunity based solely on published case studies, demonstrating the hazards of overlooking unpublished case reports and dockets.

What does this all mean? First, it means that those scholars and jurists who have been relying on these two assumptions to make judgments about the efficacy of the Bivens remedy and the necessity of shifting to a different liability model should recognize that the assumptions are fictions. That does not necessarily require that the trenchant critique of Bivens litigation from multiple perspectives need be abandoned. It simply means that we should recognize that such criticisms are far from empirically grounded.

Second, and in some respects more important to me, we need to think carefully about how we conduct empirical legal studies, which are more and more coming into vogue. Abstractly, scholars have recognized that studying only reported decisions, for instance, poses the risk of biasing our sample. This is particularly true of the work of federal district courts, because after all, even appellate decisions that are not “published” under local circuit rules are still reported in Westlaw or LEXIS. The same cannot be said for district courts—as Hillel Levine has pointed out with great force, district courts constantly issue opinions and judgments that are known only to the parties or to those with the patience and resources to get down to the courthouse or search through PACER.

Thus, I ultimately call for caution in drawing conclusions from our empirical studies of court action. The study I have done is no different—there are potential biases in methodology and alternative explanations for my findings that should trigger more study. We should look at more district courts, and perhaps more closely evaluate success; we should discuss the role of qualified immunity with lawyers who specialize in constitutional litigaiton—perhaps just the possibility of qualified immunity causes them not to file a substantial number of cases, which would lead to a selection bias that my study cannot detect. And in the end, to the extent that we rely on assumptions that have concrete policy ramifications, we should keep our distance from ones that are as far from fiction as those examined by this Article.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Alexander Reinert is an Assistant Professor of Law at the Cardozo School of Law of Yeshiva University.

This Legal Workshop Editorial is based on the following Article: Alexander Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 STAN. L. REV. 809 (2010).

The full Article from which this Essay is derived reexamines the soundness of this doctrine in light of factual and doctrinal developments since it was adopted in 1892, and introduces a number of arguments against the doctrine. This Essay presents a shortened version of two of the Article’s key arguments: (1) that EBD amounts to an impermissible delegation of judicial and lawmaking powers to the Speaker of the House and President of the Senate and (2) that EBD is inextricably linked to the traditional English concept of parliamentary supremacy and is therefore incompatible with the U.S. Constitution.

 
I.
The Doctrine as an Impermissible Delegation of Judicial Authority

EBD requires complete judicial deference to the determination of the Speaker of the House and the President of the Senate that a statute has been validly enacted in compliance with the Constitution. The practical result, therefore, is that the Supreme Court has de facto relinquished its power to interpret and enforce the constitutional provisions of lawmaking and its authority to determine the validity of legislation. The Court ceded these judicial powers not to Congress as a whole, but to the exclusive and final authority of the legislative officers of Congress.

The question of whether a bill has been properly enacted in compliance with the Constitution inevitably raises questions of constitutional interpretation and questions of fact. The questions of what exactly are the procedural requirements set forth in Article I and what constitutes compliance with these requirements are undeniably questions of legal interpretation rather than questions of fact. The problem is that EBD takes the authority to answer these two questions away from the courts and places it exclusively in the hands of the Speaker of the House and the President of the Senate. The result is first an abdication of the courts’ authority to interpret the Constitution and to enforce it according to the judicial understanding of what the Constitution means.  But the greater malady is that EBD designates the legislative officers as the only interpreters and enforcers of the lawmaking provisions of the Constitution. In essence, it is the practical equivalent of a doctrine that would require courts to accept as conclusive the presiding officers’ attestation that an Act does not violate the Bill of Rights.

 
II.
The Doctrine as an Impermissible Delegation of Lawmaking Authority

EBD can also be seen as enabling an impermissible delegation of Congress’s lawmaking authority to the presiding officers. By treating any bill signed by the presiding officers and the President as “law,” and designating the presiding officers as the sole judges of the validity of laws, EBD allows, in effect, the creation of “law” through Congress’s enrollment procedure, rather than by Congress as a whole through the procedure mandated by Article I, Section 7.

The problem here is less that EBD allows an abduction of Congress’s lawmaking power by the legislative officers, but rather that it permits Congress to abdicate some of its lawmaking authority to the legislative officers, in order to circumvent the procedure set out in Article I, Section 7.

Imagine, for example, that Congress is interested in passing an extensive piece of legislation and that the House and Senate are able to agree on all of its provisions, save one specific issue. The Constitution provides the chambers of Congress with only two options: either agree on an identical form of the bill or fail to pass the bill at all. In certain situations, the choice between succumbing to the other chamber and sacrificing the entire bill presents a real dilemma. Both options might carry heavy costs, such as ceding important policy preferences, antagonizing voters, losing prestige, and so forth. In such situations, EBD provides, in effect, a tempting third option: instead of choosing between these two evils (and taking responsibility for this choice), each chamber can pass its own version and effectively delegate the authority to choose between them to the legislative officers. This scenario is less imaginary than one might assume. According to some accounts, a similar scenario occurred in the enactment of the Deficit Reduction Act of 2005.

The Supreme Court has repeatedly held (in other contexts) that “Congress may not delegate the power to legislate to its own agents or to its own Members”² and that “Congress may not exercise its fundamental power to formulate national policy by delegating that power . . . to an individual agent of the Congress such as the Speaker of the House of Representatives . . . .”³ These decisions clearly perceived “legislative self-delegation” by Congress to its own components as more objectionable than conventional delegations of lawmaking power to administrative agencies.⁴ A major reason for this distinction is that “[i]f Congress were free to delegate its policymaking authority . . . to one of its agents, it would be able to evade ‘the carefully crafted restraints spelled out in the Constitution.’”⁵ This concern is particularly applicable here. Although a bill that does not satisfy the requirements of Article I does not become a law, under EBD, the signatures of the presiding officers effectively turn invalid law into valid law. Consequently, EBD recognizes and permits, in effect, an alternative lawmaking procedure, which is inconsistent with the Court’s constant avowals that Congress “must follow the procedures mandated by Article I of the Constitution—through passage by both houses and presentment to the President” in order to legislate.⁶

 
III.
The Doctrine and Legislative Supremacy

According to the traditional English view of parliamentary supremacy (or sovereignty), Parliament, as the legal sovereign, is the source of all law, and therefore, there can be no legal limitations on its legislative competence, and no person or body may override or set aside its legislation. The orthodox English view considers lawmaking as a sovereign prerogative and the legislative process as a sphere of unfettered omnipotence. Following the orthodox view, English courts interpreted the principle of parliamentary supremacy as banning courts from questioning the validity of Parliament’s legislation on any ground, including defects in the enactment process. Indeed, in England, where EBD originated, this doctrine is viewed as “inextricably related to . . . parliamentary sovereignty.”⁷ In the United States, EBD was never explicitly linked to legislative supremacy. However, this section argues that EBD amounts to acceptance of the English concept of parliamentary supremacy.

EBD effectively insulates the legislative process from judicial review and, consequently, establishes Congress’s unfettered power to control this process. This doctrine has properly been characterized as “a prophylactic rule, which blocks all inquiry into the alleged procedural flaws in a bill’s adoption”⁸ and as “insulating legislative enactments from challenges based on faulty enactment procedures.”⁹ The doctrine represents, therefore, a judgment that the legislature may operate in the legislative process without any judicial oversight at all and, consequently, without any meaningful legal (as opposed to political) constraints.

Furthermore, EBD requires courts to shut their eyes even to the most obvious and egregious violations of the Constitution’s lawmaking requirements and “to hold statutes valid which they and everybody know [sic] were never legally enacted.”¹⁰ The doctrine compels courts to hold statutes valid even when it is clear beyond doubt and openly admitted that the statute was enacted in blatant violation of the constitutional requirements for lawmaking. Thus, the practical result of EBD is non-enforcement of the procedural lawmaking requirements of the Constitution. Consequently, these constitutional requirements become “binding only upon the legislative conscience.”¹¹ This permits habitual and flagrant disregard of constitutional requirements in the legislative process. Some state supreme courts have even argued that the consequence of EBD is that “the wholesome restrictions which the Constitution imposes on legislative and executive action become a dead letter . . . .”¹²

Hence, EBD amounts to a judicial declaration that the enactment process is completely beyond the reach of courts, that courts may not question the validity of legislation, and that the lawmaking provisions of the Constitution are (judicially) non-enforceable. This position comes very close to the orthodox English view of parliamentary supremacy, according to which there are no legal limitations on the legislative process and courts may not question the validity of legislation. By viewing the enactment process as a special sphere of governmental activity that is completely immune from judicial review, EBD creates an “island of legislative supremacy” in the United States.

 
IV.
The Doctrine’s Incongruity with the U.S. Constitution

Legislative sovereignty and the idea of a supreme, omnipotent legislature are, of course, entirely foreign to the U.S. Constitution. It is widely recognized that the Framers of the U.S. Constitution rejected the traditional idea that sovereignty is lodged in parliament, or in any other governmental body, in favor of the idea that “in America, the only legitimate sovereign was the People, who could delegate different powers to different governments in any way.”¹³ It is likewise acknowledged as “axiomatic” that the Framers rejected the idea of a supreme, omnipotent legislature in favor of the principle of limited government and the idea of a legislature that is constrained by a supreme Constitution which is prior and superior to the powers of the legislature.¹⁴ Marbury v. Madison has famously taken the additional step of holding that the principles of constitutional supremacy and constitutional restraint of the legislature require judicial enforcement of the Constitution.¹⁵ Academic criticism of Marbury notwithstanding, constitutional supremacy and judicial review are as central and well-settled in America as parliamentary sovereignty was (until recently) in the United Kingdom.

In treating lawmaking as a sovereign prerogative and the legislative process as a sphere of unfettered power immune from judicial review, EBD deviates from Marbury and from the fundamental and well-settled principles of American constitutionalism. In fact, the words of Chief Justice Marshall in Marbury rejecting the view that “courts must close their eyes on the Constitution” are strikingly applicable to EBD, as well:

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.¹⁶

Since the 1930s, several courts in constitutional democracies concluded that EBD is inconsistent with constitutional supremacy and unjustified in legal systems that have a written constitution. In common-law countries, such as Australia and South Africa, courts held that:

The principle that the courts may not examine the way in which the law-making process has been performed has no application where a legislature is established under or governed by an instrument which prescribes that laws . . . may only be passed if the legislature is constituted or exercises its functions in a particular manner . . . .¹⁷

Several civil-law constitutional democracies, such as Germany and Spain, also rejected their equivalent doctrines (the interna corporis acta doctrine) as part of their “transition from the model of parliamentary supremacy to the model of constitutional supremacy,” and as “a natural outgrowth of the explicit rejection of the English model [of] parliamentary supremacy.”¹⁸

Even the English judges acknowledged that EBD is justified in England by the fact that in “the United Kingdom there is no governing instrument which prescribes the law-making powers and the forms which are essential to those powers;”¹⁹ however, in legal systems where such an instrument exists, “a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law,”²⁰ and courts, in turn, have a “duty to see that the Constitution is not infringed and to preserve it inviolate.”²¹

The English origins of EBD; the contemporary discussions of this doctrine in England and the Commonwealth; and the development of judicial review of the legislative process in common-law and civil-law countries all seem to yield a similar conclusion: EBD appears to be contingent upon the orthodox view of legislative supremacy. Judicial review of the legislative process is considered to be a natural consequence of rejecting this view.

 
Conclusion

EBD has far-reaching ramifications that have been largely overlooked in existing discussions. The doctrine amounts to an impermissible delegation of power to the legislative officers of Congress and embodies a concept of legislative supremacy that was clearly rejected by the Framers of the Constitution. Indeed, the English courts based EBD on the fact that they “sit . . . as servants of the Queen and the [supreme] legislature.”²² In the United States, where both the Court and the legislature are “servants” of the supreme Constitution, EBD is inappropriate.

Acknowledgments:

Copyright © 2009 Georgetown Law Journal.

Ittai Bar-Siman-Tov is Associate-in-Law, Morris Fellow and Fulbright Scholar at Columbia Law School.

This Legal Workshop Editorial is based on the following full-length Article: Ittai Bar-Siman-Tov, Legislative Supremacy in the United States?: Rethinking the “Enrolled Bill” Doctrine. 97 GEO. L.J. 323 (2009).

How is it that the Fourth Amendment came to protect communications privacy?  On its face, the language of the Amendment makes no reference to the notion of communications privacy.  The textual argument on which the principle is based is the notion that surveillance of communications constitutes a “search” and that the communications themselves—the telephone conversations, e-mails, etc.—constitute “persons, houses, papers, [or] effects” within the meaning of the Fourth Amendment.  Plausible, but not exactly compelling.   Moreover, the history of the drafting and ratification of the Constitution likewise provides little in the way of support for the notion of communications privacy.  Instead, to find the origins of the constitutional principle of communications privacy, we must tap a different historical source, the history of one particular communications network.  That communications network, maligned today as a relic from another era, is the post office, the most prominent federal “administrative agency” in the early American republic.

The modern notion that the Fourth Amendment proscribes warrantless “wiretapping”—intercepting a communication while the communication is taking place—stems from the Court’s seminal 1967 decisions Berger v. New York¹ and Katz v. United States.²  Most commentators view the intellectual underpinnings of Berger and Katz as being found in Justice Brandeis’s dissent forty years earlier in Olmstead v. United States.³ But Justice Brandeis’s famous dissent in Olmstead had its precursors too, and it is to them that we must look in search of the origins of the constitutional principle of communications privacy. 

Crucial among the precedents on which Brandeis relied was the 1878 case Ex parte Jackson,⁴ the first case in which the Court ruled that the Fourth Amendment preserved a realm of communications privacy from government intrusion.  Ex parte Jackson upheld a law that prohibited sending information about lotteries through the mail, and in dicta, the Supreme Court ruled that the Fourth Amendment precluded the government from opening sealed letters without a warrant.  But, Ex parte Jackson resulted not from principles embedded in the Fourth Amendment or from an originalist interpretation of the Fourth Amendment or even from existing judicial precedents, but rather from policy choices about the post office a century earlier. 

Privacy of correspondence became a central feature of the legal regime that defined the American post office from its beginnings in the late eighteenth century.  To understand how that happened requires a look at the transformation of the post office from a British to an American institution.  The change was gradual and rooted in historical notions of liberty that had manifested themselves in England from the early days of the English postal service, but those who established the separate American post office during the Revolutionary period recognized the importance of postal privacy—for reasons intimately connected to the Revolutionary War itself—and gave it a strong foundation in the new nation’s legal regime.  Following a 1782 Confederation Congress Ordinance, Congress then wrote postal privacy into the first comprehensive postal statute following adoption of the Constitution, the landmark 1792 Post Office Act.  Over time, law and custom embedded the notion of privacy of correspondence into the fabric of the post office.

By the time of Ex parte Jackson in 1878, the principle of communications privacy was so well established in the postal network that the Court simply “constitutionalized” it.  Perhaps the best way to see that the constitutional “principle” was just an extension of postal policy is to look at the contemporaneous history of privacy of telegrams.  In the early days, telegrams needed to be transcribed numerous times by telegraph clerks along the route between sender and recipient.  The nature of telegraphic technology thus necessitated that many people other than the intended addressee actually view a telegram’s contents.  It is not hard to see, then, why concerns about confidentiality of telegrams could be even greater than that for sealed letters. Yet the telegraph never received the Fourth Amendment protection that the mail received.  Indeed, courts at the time explicitly rejected the analogy with the mails, and did so on the specific grounds that there was no federal statute protecting the confidentiality of telegraphic communications.

Moreover, Ex parte Jackson remains important to us today not simply because it established the principle of communications privacy, but also because it shows us two crucial facts about the formation of constitutional law.  First, it gives an example of an important constitutional doctrine that was built around the post office, the most prominent federal “administrative agency” of the early Republic.   Second, and perhaps more intriguingly, it demonstrates that constitutional law can follow, rather than undermine, legislative choices.  What Ex parte Jackson did was to constitutionalize legislation; it took an earlier policy choice and embedded it into the Constitution.   But this was not an ordinary policy choice; rather, it was one about the character of a government institution.  The general process, of which Ex parte Jackson is an example, can be described briefly in four steps:  (1) Congress passes a statute.  (2) The statutory provision gives an institution certain attributes.  (3) Over time, social practice embeds those attributes into the institution.  (4) The courts then take those attributes and write them into constitutional law.  The key point is that the Court’s interpretation of the Constitution was simply the affirmation of choices made by an earlier legislature, with the institution serving as a mediating force between the legislature and the courts.  By establishing an institution and giving it particular attributes, the drafters of postal statutes helped shape constitutional law long after the promulgation of their statutes.

In sum, the constitutional principle of communications privacy was not rooted in the Fourth Amendment in textual or even historical terms; rather, it was a principle deeply embedded in the history of the post office.  While constitutional law and the scholarship it spawns often inhabit the world of abstract principle, it is often real-world institutions that give us those principles.  Communications privacy, the basic idea now embedded in the Fourth Amendment that the government should not be permitted to intercept individuals’ communications, began in the United States not as an abstract principle at all, but rather as a response by American rebels during the Revolutionary period to the fear of abuses in a particular institution, the post office.  When those rebels set out to establish a post office of their own, they embedded communications privacy into it and did so completely independently of the process that we familiarly associate with constitution-making.  Yet, when the Supreme Court dealt with the question of communications privacy as a matter of constitutional law nearly a hundred years later, the institution of the post office had so shaped the Court’s thinking that it saw constitutional principle where only postal policy had been before.  So, if today we see the principle of communications privacy as fundamental to the Fourth Amendment, we have early postal policy makers to thank, for it was through the post office, not the Constitution or the Bill of Rights, that the early Americans first established that principle.
 

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Anuj C. Desai is Assistant Professor of Law, University of Wisconsin Law School.

This Editorial is based on the following full-length Article:  Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 STAN. L. REV. 553 (2007). Click Here for the Full Article.