The Judicial Power—Law & Equity Clause

The judicial Power shall extend to all Cases, in Law and Equity . . .

—Judge Andrew S. Oldham & Adam I. Steene

Introduction

Individually, the words “law” and “equity” could be understood extremely broadly, allowing the judiciary to do almost anything. Taken together, they refer to the systems of justice found in the common-law courts and the courts of equity, respectively. Established in England and later carried over to the American colonies, these two sets of courts had different rules and offered litigants different kinds of remedies. Empowering the federal judiciary to hear “all Cases, in Law and Equity” therefore meant that federal courts were competent to hear all cases that came before them, regardless of whether, in England, the case would have been brought in a law court or a court of equity.

When the Constitution was proposed, the Anti-Federalists argued that the flexibility of equity—equitable remedies in particular—would undermine the rule of law. The Federalists insisted that equity would be limited to the principles that existed in England, where courts of equity were governed by well-settled rules. Today, the Supreme Court sometimes honors the promise of the Federalists, looking to see whether the requested equitable remedy was available in English equity courts at the Founding. Other times, the Court treats equity as flexible enough to permit innovation in those remedies. And sometimes it takes the view that, even without express statutory authorization, equity allows suits to prevent officials from violating the Constitution.

History Before 1787

At the Founding, the word “law,” in its most general sense, meant “[a] rule of action.”¹ But when mentioned along with “equity,” law would have been understood to refer to the system of justice administered in England in the common-law courts as opposed to the courts of equity. Sir William Blackstone expressly distinguished between “the universally established courts of common law and equity.”² Common-law courts first emerged in England no later than the thirteenth century as part of the monarchy’s consolidation of power.³ In the thirteenth century, English kings presided over the Court of King’s Bench, the principal common-law court.⁴ By the eighteenth century, that practice had fallen out of use.⁵

The remedies common-law courts could afford parties were fairly limited. Relief was often restricted to money damages, and lawsuits were procedurally complex. A litigant might discover—too late—that he had chosen the wrong procedure, or it might be that there was no procedure that would provide him with a remedy for the violation of his rights.⁶ That is where courts of equity came in.

Before 1787, the word “equity” was used in two different ways. In its broader sense, it was a synonym for “justice” or the “soul and spirit of all law.”⁷ Courts would sometimes be said to interpret legislation “within the equity” of the statute—that is, not too broadly or narrowly, but “according to the true intent of the legislature.”⁸

When used in contrast to “law,” however, “equity ha[d] a more restrained and qualified meaning.”⁹ It connoted “[t]he rules of decision observed by the [C]ourt of Chancery,”¹⁰ the principal court of equity in England. At least as far back as the fourteenth century, litigants who were unable to obtain relief in the common-law courts would turn to the king’s chancellor for a remedy.¹¹ Over time, the chancellor and his court began to develop more formal rules. And, by the mid-eighteenth century, the system of equity was as well-settled as the system of law in the common-law courts.¹² Equity permitted litigants to obtain remedies unavailable in the law courts. The most famous remedy was the injunction—an order preventing the defendant from performing (or requiring the defendant to perform) a certain act.¹³

Equity had a mixed reception in the newly independent states. Some states retained courts of equity, relying on English chancery practice for guidance.¹⁴ Some merged the courts of law and equity. Others abolished equity entirely.¹⁵

The Constitutional Convention

The inclusion of “in Law and Equity” received little attention during the Constitutional Convention. Toward the end of the Convention on August 27, 1787, William Samuel Johnson of Connecticut “suggested that the judicial power ought to extend to equity as well as law—and moved to insert the words ‘both in law and equity.’”¹⁶ George Read of Delaware “objected to vesting these powers in the same Court” (the U.S. Supreme Court), but the motion passed.¹⁷ In mid-September, the word “both” was removed from the draft. That language was approved by the Convention.¹⁸

The Ratification Debates

The Anti-Federalists raised two principal concerns, both stemming from fears of federal judicial activism. First, they warned that “equity” might be given its broader meaning as synonymous with “justice.” Federal Farmer wrote that this provision would afford federal judges a “discretionary power.”¹⁹ Brutus argued that judges would be free of “any fixed or established rules,” able to interpret laws “according to what they conceive are their spirit.”²⁰ In other words, the Anti-Federalists worried that federal courts would rely on their equity jurisdiction to justify interpreting laws and the Constitution according to the judges’ subjective view of justice rather than the text of those documents.

Second, the Anti-Federalists had concerns about how federal courts would operate as courts of equity. Federal Farmer recognized that “in Great Britain, . . . chancery proceedings there [had been] reduced to [a] system.”²¹ But equity practice in the young United States differed from state to state, and some states had no equity courts at all. Without “precedents in this country . . . to regulate the divisions in equity as in Great Britain,” Federal Farmer feared that federal courts would exercise their equity powers according to nothing but “mere discretion.”²²

The Federalists argued that “equity” should be understood in its narrower, more technical sense. “[T]he word ‘equity,’” Alexander Hamilton argued in Federalist No. 80, referred to matters that are “object[s] of equitable, rather than of legal jurisdiction.” Hamilton added that this “distinction [was] known and established in several of the States.”

The Federalists also sought to assuage fears that equity jurisdiction would afford judges unbounded power. Hamilton insisted in Federalist No. 83 that “the principles by which [equitable] relief is governed are now reduced to a regular system.” Federalist politician Timothy Pickering argued that “[a]s our ideas of a court of equity are derived from the English jurisprudence,” federal courts would be bound to follow “the practice of the Court of Chancery in England.”²³

Early Practice

The First Congress promptly gave the new federal courts the powers of the English courts of law and equity. The Judiciary Act of 1789 gave the circuit courts jurisdiction over certain “suits of a civil nature at common law or in equity.”²⁴ In 1792, Congress provided that the courts’ equitable power would be governed “according to the principles, rules and usages which belong to courts of equity . . . as contradistinguished from courts of common law.”²⁵ The Supreme Court soon explained that this provision meant that federal courts were to rely on the equitable principles of the English Court of Chancery at the time of Founding, not on the contemporaneous principles of state courts.²⁶

In 1822, the Supreme Court prescribed thirty-three Equity Rules for the inferior federal courts.²⁷ In 1842, the Court prescribed ninety-two Equity Rules.²⁸ The 1842 rules lasted until the Court adopted the Equity Rules of 1912,²⁹ which were its last before the merger of law and equity in 1938.

Judicial Precedent

Over the years, the Supreme Court has often looked to Founding-era equity practice when determining the scope of federal equity power. In re Debs (1895) surveyed over a century of writing on equity to conclude that federal courts could enjoin striking unionists—a perceived public nuisance—from interfering with interstate commerce.³⁰ Fifty years later, the Court confirmed that, to invoke the equity power of the federal courts, “the suit must be within the traditional scope of equity as historically evolved in the English Court of Chancery.”³¹ In Grupo Mexicano (1999), the Court reaffirmed that the “prerequisites for obtaining an equitable remedy . . . depend on traditional principles of equity jurisdiction.”³²

Still, when it comes to equity, the Court has not always been a stickler for tradition. In Osborn v. Bank of United States (1824), the Court permitted the issuance of an injunction to remedy a trespass by state officials even though an injunction “ha[d] [n]ever been granted in such a case.”³³ It was enough that the Court could draw analogies between Osborn’s case and cases in which injunctions had been granted.³⁴ At the turn of the twentieth century, the Court went even further. Ex parte Young (1908) held that a state official could be sued in equity to prevent him from enforcing an allegedly unconstitutional law even though no law expressly permitted that kind of injunction.³⁵ In dissent, Justice John Marshall Harlan wrote that this was an unprecedented and unwarranted extension of federal equity power.³⁶

Open Questions

• Is it permissible to deviate from the traditional forms of equitable relief? If so, how far? As two centuries of case law show, the answers to these questions remain unsettled. Chief Justice John Marshall, author of the Osborn opinion, apparently thought that some minor deviations were permissible.³⁷ Justice Antonin Scalia, writing for the majority in Grupo Mexicano, agreed with “the proposition that equity is flexible” but added that this “flexibility is confined within the broad boundaries of traditional equitable relief.” Going beyond those boundaries, he cautioned, would replace “flexibility” with “omnipotence.”³⁸ Even today, scholars continue to debate the appropriate role of equity.³⁹
• The debate about equity’s flexibility informs another much-debated issue: whether Ex parte Young was correctly decided. Some scholars say that equity always permitted suits against officials to prevent enforcement of a law.⁴⁰ In Armstrong v. Exceptional Child Center, Inc. (2015), Justice Scalia wrote that “[t]he ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action.”⁴¹ Other scholars contend that Young’s holding was a novel but appropriate one.⁴² We believe that the holding exceeded the authority of federal courts to afford traditional equitable relief.⁴³

1. 1 Samuel Johnson, A Dictionary of the English Language (1755), https://perma.cc/ZJZ4-SV2C. ↩︎
2. 3 Blackstone 30. ↩︎
3. Frederic William Maitland, Equity, Also the Forms of Action at Common Law 2 (1910); Theodore F.T. Plucknett, A Concise History of the Common Law 80–81 (5th ed., 1956). ↩︎
4. 3 Blackstone, 41 & n.p. ↩︎
5. Case of Prohibitions (1607) 77 Eng. Rep. 1342; 12 Co. Rep. 64; 3 Blackstone 41 n.p. ↩︎
6. Maitland, supra at 298–99. ↩︎
7. Johnson, supra, https://perma.cc/XC2J-XNP6; 3 Blackstone 429. ↩︎
8. 3 Blackstone 430–31. ↩︎
9. 1 John Bouvier, A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union 368 (1st ed., 1839). ↩︎
10. Johnson, supra. ↩︎
11. Maitland, supra at 4–5. ↩︎
12. Id. at 8; Andrew S. Oldham, Adam I. Steene, & John W. Tienken, The Ex Parte Young Cause of Action: A Riddle, Wrapped in a Mystery, Inside an Enigma, 120 Nw. U. L. Rev. (forthcoming 2026) (manuscript at 6), https://ssrn.com/abstract=4204132. ↩︎
13. Maitland, supra at 254. ↩︎
14. 1 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws, of the Federal Government of the United States and of the Commonwealth of Virginia 429 (1803); Oldham, Steene, & Tienken, supra at 8–9. ↩︎
15. Robinson v. Campbell, 16 U.S. (3 Wheat.) 212, 222 (1818); Oldham, Steene, & Tienken, supra at 8–9. ↩︎
16. 2 Farrand’s 428. ↩︎
17. Id. ↩︎
18. Id. at 621–22. ↩︎
19. Storing 2.8.195. ↩︎
20. Id. at 2.9.138, 2.9.160. ↩︎
21. Id. at 2.8.195. ↩︎
22. Id. at 2.8.42. ↩︎
23. Letter from Timothy Pickering to Charles Tillinghast (Dec. 24, 1787), in 2 Charles W. Upham, Life of Timothy Pickering 360 (1873 ed.). ↩︎
24. Ch. 20, § 11, 1 Stat. 73, 78. ↩︎
25. Act of May 8, 1792, ch. 36, § 2, 1 Stat. 275, 276. ↩︎
26. Robinson v. Campbell, 16 U.S. (3 Wheat.) 212, 222–23 (1818); Oldham, Steene, & Tienken, supra at 9 & n.70. ↩︎
27. 20 U.S. (7 Wheat.) xvii. ↩︎
28. 42 U.S. (1 How.) xli. ↩︎
29. 226 U.S. 627. ↩︎
30. 158 U.S. 564, 586–93 (1895). ↩︎
31. Guaranty Tr. Co. v. York, 326 U.S. 99, 105 (1945). ↩︎
32. Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318–19 (1999). ↩︎
33. 22 U.S. (9 Wheat.) 738, 841 (1824). ↩︎
34. Id. at 841–42. ↩︎
35. 209 U.S. 123, 167 (1908). ↩︎
36. Id. at 192 (Harlan, J., dissenting). ↩︎
37. Osborn, 22 U.S. (9 Wheat.) at 841–42. ↩︎
38. Grupo Mexicano, 527 U.S. at 322. ↩︎
39. Samuel Bray, Getting into Equity, 97 Notre Dame L. Rev. 1763, 1795–99 (2022); Josh Blackman & Seth Barrett Tillman, There Is No Cause of Action for Ultra Vires Conduct, 19 Geo. J.L. & Pub. Pol’y 163, 211–14 (2022). ↩︎
40. John Harrison, Ex parte Young, 60 Stan. L. Rev. 989 (2008). ↩︎
41. 575 U.S. 320, 327 (2015). ↩︎
42. James E. Pfander & Jacob Wentzel, The Common Law Origins of Ex parte Young, 72 Stan. L. Rev. 1269 (2020). ↩︎
43. Oldham, Steene, & Tienken, supra. ↩︎