Standing is probably one of the most disliked doctrines in American law. Basically, it requires private plaintiffs in federal court (most state courts, including in NC, have similar rules) to show that they have been individually harmed by an action before they can sue to stop it. Since it is a procedural limit, standing often prevents cases that might succeed on the merits from making it to court.

While the Supreme Court has defended its standing rules by pointing to Article III of the Constitution (which limits federal courts’ jurisdiction to “Cases…[and]…Controversies”), surprisingly few legal scholars have sought to explain why the Constitution would require these rules. After all, if a government policy or private action violates the law, why should a case challenging it be thrown out solely because of who the plaintiff is?

Two years ago, Professor Adrian Vermuele of Harvard Law School seized on this gap in the scholarship by offering a broad critique of modern standing doctrine in his book Common Good Constitutionalism. His argument is twofold. First, Vermuele claims that the particularized injury requirement contradicts originalism, calling it an innovation of the late 20th century that has little basis in early American law and that is not required by Article III. Second, he argues that the test is incompatible with the natural law because it shields activities which harm the common good from legal scrutiny.

While I have great respect for Professor Vermuele’s research, I have serious doubts about these claims. In particular, an 1815 case from the North Carolina Supreme Court called Powell v. Stone seems to challenge both of his premises. In Powell, Chief Justice John Louis Taylor (a jurist well-versed in both Roman and medieval law) specifically applied the individualized injury test on natural law grounds, quoting Ulpian and Sir Edward Coke to support his position. This brief article takes a look at Powell, exploring how it is the key to demonstrating that individual-standing rules are supported by both originalism and the natural law.

Powell v. Stone: Its facts and ruling

The facts of Powell are fairly straightforward. The plaintiff, Powell, owned a tract of land along the Neuse River in eastern North Carolina “and a fishery adjoining it, from which he made great profits.” The defendant, Stone, erected a dam downstream from the fishery to create a flow of water that would turn his mill. The dam prevented fish from traveling up the river and destabilized the local economy, including Powell’s business. Powell filed suit on behalf of himself and the local population, challenging Stone’s dam as a public nuisance and asking that it be destroyed.

The case eventually made its way to the state supreme court, where it fell into the able hands of John Taylor, the first chief justice of the North Carolina Supreme Court. Taylor had studied law under the constitutional giant George Wythe at William and Mary, and over his career he had amassed an impressive library of classical legal sources, ranging from the treatises of Paulus to the Commentaries of Blackstone. He would later use these resources to open North Carolina’s first law school in his own home. While he was a committed originalist, Taylor often appealed to the natural law to provide a moral justification for his decisions.

In this case, Taylor found in favor of Stone, holding that Powell did not have standing to sue because he had not shown a particularized injury, independent of the general social harm created by Stone’s disruptive activities. His reasoning on this point is instructive, and provides a useful window into the original ratio legis of standing law:

“This action cannot be supported without admitting, at the same time, the right of all such persons, even to the very source of the stream, to maintain similar actions. Their respective losses may vary in degree, but the principle of the action is equally applicable to them all; and if suits were thus multiplied, the inevitable consequence would be to overwhelm any individual against whom they might be brought, and thus lead to a severity of punishment utterly disproportion[ate] to the offense, without affording to the public that benefit to which alone punishment can be legitimately directed.

The law, with admirable wisdom, has interposed an effectual barrier against so fruitful a source of litigation and injustice and has separated, by well-defined boundaries, injuries done to the public from those done to an individual. Hence, for any of those acts which are in [the] nature of a public nuisance, no individual is entitled to an action unless he has received an extraordinary and particular damage, not common to the rest of the citizens; as if a man suffer an injury by falling into a ditch dug across a common highway [citing Coke’s treatise on Littleton]…”

In other words, permitting any person to sue Stone for his harmful actions would violate another natural law principle, that of justice, by permitting excessive penalties. Importantly, Taylor does not ignore that the law exists to protect society from harm but argues that a private suit is not the appropriate way to address the effects of Stone’s dam, and that a higher ethical principle is at stake:

“It is true that the law enjoins upon every man, and will enforce in a suitable manner, that precept of natural justice so to use his own as not to injure another [paraphrasing Ulpian’s definition of law]. But the rule, in every instance, presupposes that the party complaining has in the thing injured a property either absolute or qualified.

“It would produce the most extensive mischief in society to sanction the principle that a man may be sued for using a right to the…indirect damage of another. Such a doctrine would unnerve all intellectual efforts in the advancement of science; arrest improvement in those arts which diffuse around civilized man his chief comforts and highest ornaments; extinguish the lights of knowledge, and effectually check that spirit of useful discovery with which the present more than any former age has teemed for the utility and embellishment of social life.”

Finally, Taylor concludes by arguing that it is the responsibility of the people’s elected representatives, rather than judges, to remedy social problems. He points out that North Carolina law already regulates conduct on rivers, and that these legal mechanisms are the best way to hold environmentally irresponsible actors accountable:

“A penalty is annexed to the violation of those laws, and the interest of the public seems, in general, to be well protected by them.”


In and of itself, all Powell proves is that the individual-injury test is not a recent innovation in North Carolina law, but dates to at least the early 19th century. However, it does provide powerful evidence regarding the original meaning of Article III, as Taylor was heavily schooled in the same legal traditions that the founders drew upon in drafting the Constitution. Moreover, it also lays out a unique and robust normative defense of standing requirements, one that shows how seemingly technical procedures are actually vital to the preservation of justice. Like King Josiah, perhaps we too should dust off the law-books of our ancestors and discover where our traditions came from, and why they matter.