Public Rights, Democracy, and the Separation of Powers

Authors

James L. Huffman

Abstract

This Article examines the concept of public rights in the contexts of democratic governance and the constitutional separation of powers. While the concept of public rights has a long history in Anglo-American law, over the last several decades, the term is often employed with only vague reference to its historic meanings and with little or no definition. With reliance on the centrality of the concept of rights in American constitutional government, it is commonly claimed that public rights, like private rights, can be enforced in the courts as constraints on legislative and executive actions.

In American caselaw public rights have referred to rights held in common by the citizenry—for example, to vote, to join with others in an association, to engage in business, to travel on public highways, and generally to participate in the life of the community. Individual claims in the nature of franchises and privileges created and subject to alteration or termination by statute are also termed public rights, having been granted by public authority. In the common law doctrines of public nuisance and public trust, the term has reference to rights, held in common, to the avoidance of harm and to specific uses of public waters. The term has been used interchangeably with the term public justice, suggesting that the public is entitled to a government that provides for the welfare of all rather than of the few. And the term has been employed with reference to the police powers of the states and the enumerated powers of the national government—the inference being that certain governmental powers are inherent in popular sovereignty.

A distinction between private and public rights has deep roots in Anglo-American law—private rights being those enforced by the common law courts while public rights are created by the legislature and enforced by the executive branch of government. The United States Supreme Court has developed a public rights doctrine reliant on this distinction between private and public rights. Under that doctrine, Article III courts have exclusive jurisdiction over private rights matters while public rights exist at the pleasure of the legislature and can be decided by Article I adjudicators without Article III court review. Because public rights claims, as defined by the public rights doctrine, cannot be adjudicated in Article III courts, the Supreme Court has denied standing to individuals asserting what the Court has labeled generalized grievances. Such rights claims are to be resolved in the political branches of government. For the most part, state standing doctrines are similar, although a few states have recognized standing for public rights claims.

Nonetheless, the term public rights is often employed, without reference to these historic understandings, by parties seeking judicial intervention where they have failed to achieve their objectives in the political process. Usually, the plaintiffs in such cases claim to represent the public interest and not any special interests, but their claim to such representation rests entirely on self-declaration and not any legitimate democratic process. In claiming to seek vindication of public rights, private interests assume the mantle of public authority in asking courts to override legislative or executive actions with which they disagree. By stating their claim as one of public right, private interests seek to trump the political process. Courts that recognize such public rights claims unavoidably engage in a legislative, policy-making function beyond their constitutional authority and institutional competence.

Repository Citation

James L. Huffman, Public Rights, Democracy, and the Separation of Powers, 109 Marq. L. Rev. 505 (2025).
Available at: https://scholarship.law.marquette.edu/mulr/vol109/iss2/3