Discretionary Justice: The Right to Petition and the Making of Federal Private Legislation

Abstract

Over the course of the late eighteenth, nineteenth, and early twentieth centuries, Congress received tens of thousands of petitions seeking payment of private claims against the government and its officers. In response, legislators enacted thousands of private laws for the benefit of individual citizens and corporations. In some congresses, private laws accounted for more than eighty percent of all laws enacted. My Article offers the first comprehensive analysis of this important, but largely forgotten, practice. Through this historical framework, the Article addresses a set of interrelated concerns familiar to all liberal governments: to what degree should statutory law permit the exercise of discretion and, to the extent that such discretion exists, to whom shall the authority for exercising it be entrusted? On the one hand, discretion is inimical to the rule of law because it threatens to subordinate the law’s commands to the venal whims of officeholders. On the other hand, discretion is an indispensable tool for rounding out the law’s hard edges to ensure just outcomes in individual cases. While this tension is familiar, the mechanism that early federal legislators adopted to deal with it is not. For much of our national history, federal private legislation — that is, congressional enactments for the benefit of private individuals — operated as the primary mechanism for dispensing discretionary justice. Our contemporary understanding of statutory lawmaking, by contrast, envisions a process fundamentally concerned with the promulgation of general rules reflecting public norms. As I aim to show here, this understanding does not capture some inherent aspect of legislation, but rather is the product of a historical process that began with a far different conception of the purpose of legislative bodies. Indeed, for much of the eighteenth and nineteenth centuries, local and national legislatures devoted a significant amount (if not most) of their time to functions that appear to modern eyes as judicial in nature: granting pensions, resolving boundary disputes, and settling tort and contract claims against the government. This Article engages in a review of that process through a qualitative analysis of the many thousands of petitions submitted to Congress during its early history. The goal is to better understand the gradual evolution of our modern conception of legislation while also engaging with the process of private lawmaking on its own terms.