The Private Rights of Public Governments

Seth Davis*

Federal courts law is replete with hallowed dictums that are figuratively resonant but literally false. Among these is Marbury v. Madison’s admonition that “[t]he province of the court is, solely, to decide on the rights of individuals.”¹ Taken literally, this dictum would close the courthouse doors to government plaintiffs, not to mention any plaintiff who sues to enforce the rights of the public. Perhaps federal courts should take Marbury’s dictum for all it literally says, but they do not, not really. Understood figuratively, however, Marbury might be read to enshrine a private rights model into the law of federal jurisdiction.²

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© 2019 Seth Davis. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, University of California, Berkeley School of Law. Email: sethdavis@berkeley.edu. I would like to thank Michael Coenen, Tessa Davis, Leah Litman, Lisa Sandoval, and Susannah Barton Tobin for their helpful comments. In addition, I would like to thank the editors of the Notre Dame Law Review for their hard work and generosity throughout the publication process.

1 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).

2 Cf. Moore v. U.S. House of Representatives, 733 F.2d 946, 959 (D.C. Cir. 1984) (Scalia, J., concurring in result) (arguing that Article III requires harm to private rights before federal court may take jurisdiction, and citing Marbury’s dictum for that proposition); Martin H. Redish & Sopan Joshi, Litigating Article III Standing: A Proposed Solution to the Serious (but Unrecognized) Separation of Powers Problem, 162 U. Pa. L. Rev. 1373, 1384 (2014) (“By enforcing the private-rights model articulated by Chief Justice Marshall in Marbury, Article III standing can effectively prevent what Tocqueville called ‘wanton assaults’ on legislation resulting from ‘the daily aggressions of party spirit.’” (quoting 1 Alexis De Tocqueville, Democracy in America 102 (P. Bradley ed., 1945)). But cf. Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1370–71 (1973) (arguing that “Marbury itself provides the basis for a different model of judicial competence” under which the Supreme Court “has the ‘special function’ in our frame of government to declare authoritatively the meaning of the Constitution,” even in cases that do not involve private rights).