Important recent scholarship has come to question the origins and legitimacy of the Ex parte Young proceeding, a cornerstone of modern constitutional litigation. Deploying a historically inflected methodology that we call equitable originalism, scholars and jurists have sought to confine federal equity power to the forms of equitable intervention common in the English High Court of Chancery at the time judicial power was first conferred on the lower federal courts in 1789. Such limits have led some to question the power of federal courts to grant affirmative Ex parte Young relief and to issue national or universal injunctions.
This Article explores the Ex parte Young action and the power of federal courts to issue affirmative constitutional remedies in its name. It shows that equity’s traditional reluctance to intervene in public law matters reflected the perceived adequacy of the common law writs—mandamus, certiorari, and prohibition—as tools for oversight of the administrative state. Over time, equity adapted. Ex parte Young confirms a nineteenth-century transition in which the injunction absorbed the lessons of the common law writs and evolved into the primary mode of judicial control of administrative action. Equitable originalism could reverse such adaptation, returning equity to its private law eighteenth-century form and undermining modern constitutional remediation.
James E. Pfander is the Owen L. Coon Professor of Law, Northwestern University Pritzker School of Law. Jacob P. Wentzel is a Law Clerk, U.S. Court of Appeals for the Fourth Circuit; J.D., Northwestern University Pritzker School of Law, 2019.
We owe thanks to Sam Bray, Zach Clopton, Kris Collins, Charlotte Crane, Dick Fallon, David Foster, Tara Grove, Douglas Laycock, Sophia Lee, Jane Manners, John McGinnis, Tom Merrill, Henry Monaghan, Michael Morley, Bob Pushaw, Marty Redish, Doug Rendleman, Judith Resnik, Stephen Sachs, Irit Samet, Joanna Schwartz, Mila Sohoni, and Jim Speta for useful comments; to Tom Gaylord and the Pritkzer Law Library for help with historical sources; to the Northwestern law faculty and research fund for generous financial support; to the participants at the Notre Dame Equity Roundtable and the American Society for Legal History, to whom we presented versions of this Article; and to our editors at the Stanford Law Review for extraordinary work in challenging times. We dedicate this Article to the memory of David Shapiro, friend, mentor, and man for all seasons.