Ablavsky on Land Claims and the Private Rights Doctrine

Gregory Ablavsky, Stanford Law School, has posted Getting Public Rights Wrong: The Lost History of the Private Land Claims, which is forthcoming in the Stanford Law Review:

Black-letter constitutional law distinguishes “private rights,” which must be litigated before an Article III tribunal, from “public rights,” which Congress may resolve through administrative adjudication. Yet both the Supreme Court and scholars have long struggled to define this distinction. Recently, many have turned to history for clarity, especially to Murray’s Lessee, the 1856 case that inaugurated the public rights doctrine. As part of a broader critique of the administrative state, Justices and scholars have sought to use this history to cabin the scope of constitutionally permissible administrative adjudication.

This Article intervenes in this debate by suggesting that administrative adjudication had a much broader scope in the nineteenth century than previously thought. It examines the sole example of public rights cited in Murray’s Lessee: preexisting property rights held by the European settlers in territories ceded to the United States. These “private land claims,” though almost entirely neglected by scholars of public rights today, were the subject of an enormous amount of nineteenth-century law and jurisprudence. Both the antebellum Congress and Supreme Court concluded that Congress enjoyed considerable discretion over the resolution of these claims, including through binding and preclusive decisions by non-Article III tribunals. The Court reached this conclusion, I suggest, based on a dichotomy between “perfect” title—where complete legal title had passed to the claimant—and “imperfect” title, where some further government act was required before the claimant enjoyed “complete” ownership. But this framework did not mean that private land claims, whether perfect or imperfect, were considered “privileges,” a category that other scholars have used to explain the public rights doctrine. Rather, the era’s caselaw and jurisprudence described both perfect and imperfect titles as vested property rights that the government could not take away. Moreover, by century’s end, the distinction between perfect and imperfect titles had collapsed in favor of a broad and durable embrace of federal power.

This history does not offer a new bright-line test to distinguish public from private rights. But it does challenge influential prior accounts in caselaw and scholarship by suggesting that, from the very beginning, the category of “public rights” encompassed vested rights to property that were routinely adjudicated before federal administrative tribunals.

--Dan Ernst