Early Standing Doctrine

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Prior to the 1970s, a litigant had standing only if he could show that his injury stemmed directly from the “violation of a legal right” 1 such as one recognized at common law or in statute.2 The next section discusses how a significant increase in the power of federal administrative agencies to regulate businesses and individuals contributed to the Supreme Court’s decision to discard this “legal injury” test in favor of the more familiar “injury-in-fact” standing requirement in 1970.3 The Court, however, had already begun to develop some of the other basic principles of modern standing doctrine, such as the requirement that the litigant has suffered a particularized injury, decades earlier.4

While the Supreme Court had long recognized that its role under Article III is limited to “decid[ing] the rights of individuals” in particular cases rather than answering abstract questions about the constitutional authority of the political branches,5 the Court decided two cases in the 1920s that established the foundation for modern standing doctrine. Although the Court’s opinions in Fairchild v. Hughes6 and Frothingham v. Mellon7 do not employ the term “standing,” these decisions embody the fundamental principle underlying the modern concept of standing that a litigant must allege an individualized injury in order to establish a justiciable “case or controversy” under Article III of the Constitution and invoke the jurisdiction of a federal court.

The Supreme Court’s first foundational decision concerning Article III standing was the 1922 Fairchild case.8 In that case, the Court held that the federal courts lacked jurisdiction to rule upon a taxpayer’s challenge to the procedures by which the Nineteenth Amendment was ratified.9 In affirming the lower court’s dismissal of the case, the Court held that the plaintiff could not establish standing solely by relying upon his status as a citizen with nothing more than a general interest in ensuring that the federal government followed the law.10 Although Justice Louis Brandeis’s majority opinion alluded to Article III of the Constitution as the basis for the Court’s ruling on the issue of standing, the Court did not explain the reasoning behind its holding in detail.11

A year later, in Frothingham v. Mellon, the Court elaborated on its rationale for the standing requirement.12 In Frothingham, the Court considered various constitutional challenges to the Maternity Act, a federal statute that created a grant program to distribute taxpayer funds to states that agreed to cooperate with the federal government to protect the health of mothers and infants.13 The Court declined to reach the merits of the individual federal taxpayer’s constitutional claims, determining that the plaintiff lacked Article III standing.14 In support of its holding that the plaintiff lacked a sufficient stake in the outcome of the case, the Court noted that the taxpayer’s interest in preventing increased tax liability was a “minute and indeterminable” interest widely shared with millions of other U.S. taxpayers, and that a court order enjoining the use of taxpayer funds for the grant program might not actually redress the plaintiff’s injury because it might not actually decrease the plaintiff’s tax liability.15 Building on its decision in Fairchild, the Court in Frothingham specifically grounded the standing requirement in the Constitution’s structural separation of powers among the branches of government, as well as the Founders’ concerns with the proper role of the Judiciary in a democratic society.16 The Court wrote that deciding the case on the merits would “be not to decide a judicial controversy” but would rather force the Court to “assume a position of authority over the governmental acts of another and co-equal department, an authority which we plainly do not possess.” 17 Consequently, the Court declined to hear the case, partly in order to avoid resolving abstract questions of policy best suited for resolution by the political branches.18

Although the Court’s decisions in Fairchild and Frothingham laid the groundwork for the standing doctrine, the Court’s opinions from this early time period failed to clarify whether this limitation on the power of the Federal Judiciary was an unavoidable constitutional barrier to litigation or, rather, a prudential constraint on jurisdiction subject to waiver at a judge’s discretion for compelling policy reasons.19 Such fundamental questions about the standing doctrine would remain unanswered until later in the twentieth century.

1: Ala. Power Co. v. Ickes, 302 U.S. 464, 479 (1938).
2: Tenn. Elec. Power Co. v. TVA, 306 U.S. 118, 137–38 (1939). See also Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 140–41 (1951) ( “The touchstone to justiciability is injury to a legally protected right” ); Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 170 (1992) (noting that, prior to the 1970s, litigants “with a concrete interest could not bring suit unless the common law, or some other source of law, said so. But if a source of law conferred a right to sue, ‘standing’ existed, entirely independently of ‘concrete interest’ or ‘injury in fact.’” ).
3: Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970) ( “The first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise.” ). See also Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 320 n.3 (1977) (applying the injury-in-fact and zone of interest tests and finding that an out-of-state stock exchange had standing to bring a Commerce Clause challenge to a New York statute imposing a higher transfer tax on securities transactions involving an out-of-state sale). For more background on the decline of the “legal injury” test, see ArtIII.S2.C1.6.3 Standing Doctrine from 1940s to 1970s.
4: Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371, 1375–76 (1988) (including both Fairchild and Frothingham in a discussion of the Court’s earliest standing cases).
5: Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) ( “The province of the court is, solely, to decide on the rights of individuals . . . ” ). See also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006) ( “Chief Justice Marshall, in Marbury v. Madison . . . grounded the Federal Judiciary’s authority to exercise judicial review and interpret the Constitution on the necessity to do so in the course of carrying out the judicial function of deciding cases.” ).
6: 258 U.S. 126 (1922).
7: 262 U.S. 478 (1923).
8: Fairchild, 258 U.S. at 129–30.
9: Id. at 127–30. The plaintiff had sought an injunction to prevent the Secretary of State from proclaiming the ratification of the amendment and the U.S. Attorney General from enforcing it. Id.
10: Fairchild, 258 U.S. at 129–30.
11: Id. at 127–30 ( “Plaintiff’s alleged interest in the question submitted is not such as to afford a basis for this proceeding. . . . [I]t is not a case within the meaning of § 2 of Article III of the Constitution, which confers judicial power on the federal courts . . . ” ).
12: Frothingham was consolidated with Massachusetts v. Mellon, another case in which the State of Massachusetts challenged the same statute. Frothingham, 262 U.S. at 478–79. The Court also held that Massachusetts lacked standing to bring suit on its own or on behalf of its citizens to challenge the statute. Id. at 480–86. For more on Massachusetts v. Mellon, see ArtIII.S2.C1.6.5 Taxpayer Standing.
13: Frothingham, 262 U.S. at 479.
14: Id. at 486–87.
15: Id.
16: Id. at 488–89.
17: Id.
18: Id.
19: See Flast v. Cohen, 392 U.S. 83, 92 (1968) ( “[C]ommentators have tried to determine whether Frothingham establishes a constitutional bar to taxpayer suits or whether the Court was simply imposing a rule of self-restraint which was not constitutionally compelled.” ).