Polymorphous Public Law Litigation: The Forgotten History of Nineteenth Century Public Law Litigation

Table of ContentsI. Introduction 1759II. Conceptual Framework 1767A. What is Public Law Litigation? 1767B. Judicial Review and Popular Sovereignty 1768C. Constitutionalization and Judicial Supremacy 1774III. An Empirical Analysis of Constitutionalization 1776A. Creating the Database 1776B. Methodology and Research Design 17791. The Definition of Public Law (Revisited) 17792. Public Law Litigation in State Courts 1781C. The Transition from Private Law to Public Law 1782D. The Constitutionalization of American Public Law 1785E. The Decline of the Polymorphous Model of Public Law Litigation 1793F. Tentative Explanations for Constitutionalization 1797IV. The Forgotten History of Nineteenth Century Public Law Litigation 1799A. Nineteenth Century International Law Claims 1801B. Land Claims in Florida and Louisiana 18031. The Role of International Law 18062. The Mobile Waterfront Cases 18093. Comparison to Modern Public Law Cases 1812C. Chinese Habeas Litigation 18141. Period One: 1868-1888 18152. Period Two: 1888-1894 18193. Period Three: 1894-1905 1822D. Summary 1825V. Reviving the Polymorphous Model of Public Law Litigation 1827A. International Human Rights Treaties as a Partial Substitute for Constitutional Law 1828B. Three Illustrative Examples 1831C. Objections to the Polymorphous Model 18361. Federalism 18362. Individual Rights 18383. National Identity 18404. Institutional Competence 1841VI. Conclusion 1842VII. Appendix 1844I IntroductionLarry Kramer and Mark Tushnet have sparked a vigorous scholarly debate about the merits of judicial supremacy.1 To date, that debate has focused primarily on the question of who interprets the Constitution.2 Is the Supreme Court "the ultimate expositor of the constitutional text,"3 as the Court claims? To what extent do Congress, the President, and "the people themselves" share the power to interpret and enforce the Constitution?This Article reframes the debate about judicial supremacy by raising a different question: what legal sources do courts apply to protect individual rights from government infringement? In the modern era, we respond, almost reflexively, that courts apply the Constitution for this purpose. However, nineteenth century federal courts relied primarily on other sources of law, and only occasionally on constitutional law, to protect individual rights from government infringement. This Article recovers the forgotten history of nineteenth century public law litigation. In that era, federal courts routinely applied a mix of international law, statutes, and common law to protect fundamental rights and restrain government action.How does the history relate to current debates about judicial supremacy? To answer that question, let us begin with a definition and some data. This Article defines the term "public law cases" to comprise litigated cases involving a dispute between a private party and a government actor in which the private party alleges that the government committed, or threatened to commit, a violation of some established legal norm.4 Between 1801 and 1864, the Supreme Court applied international law in about 42% of the public law cases decided on the merits. During that period, the Court applied constitutional law in only about 13% of the public law cases decided on the merits. In contrast, between 1954 and 2005, the Court applied international law in only about 3% of the public law cases decided on the merits, while it applied constitutional law in about 64% of the public law cases decided on the merits. …