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 scholars and the Supreme Court 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 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 case law and jurisprudence described both perfect and imperfect titles as vested property rights that the government could not take away. Moreover, by the end of the nineteenth century, 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 case law and scholarship by suggesting that, from the very beginning of the United States, “public rights” encompassed vested rights to property that were routinely adjudicated before federal administrative tribunals.

* Professor of Law and Helen L. Crocker Faculty Scholar, Stanford Law School; Professor (by courtesy) of History, Stanford University. Thanks to Sam Lazerwitz and Caroline Schechinger for outstanding research assistance. Thanks also to Lawrence Friedman, David Hausman, Amalia Kessler, Sophia Lee, Julia Lewandoski, Jerry Mashaw, Lisa Ouellette, and Nick Parrillo for suggestions and feedback. This paper benefitted from feedback from the Wisconsin Discussion Group on Constitutionalism at the University of Wisconsin Law School, the Stanford Law School Faculty Workshop, and the NYU Law Faculty Workshop.