A Challenge to “Equitable Originalism” – The History of Injunctions as a Principle-Based Adaptable Judicial Power
“Equitable originalism” is a judicial philosophy that asserts federal courts can only issue equitable remedies that were used in English chancery courts at the time of America’s founding. Accordingly, federal courts cannot issue newer types of injunctions, such as structural or nationwide injunctions, without congressional authorization. This historical analysis asks whether the original meaning, history or tradition of federal equitable remedies crystalized injunctive power as it was in England in the 1780s. The answer is no. Article III, federal legislation, rules of court, caselaw and treatises from the late 1700s through the early 1900s illustrate that the founders created federal courts’ equitable remedial power as a principle-based jurisdiction that was expected to adapt to changing circumstances.
The U.S. Supreme Court is ripe to weigh in on when, if ever, nationwide injunctions are allowable as the practice proliferates in politically-charged cases. Disallowing nationwide injunctions by looking backward at history and tradition could have significant consequences for federal equity jurisdiction and injunctive relief. As such, an accurate historical picture of the U.S. reception of equity and injunctive power is necessary. Nationwide injunctions have many faults, but the fact that they did not exist in English chancery courts in the 1780s is not one of them.
Part II tracks the equitable originalism approach to injunctive power from Grupo Mexicano in 1999 through the recent concurrences by Justices Thomas and Gorsuch. Part III traces remedial equity, particularly injunctions, from the 1300s in England to the U.S. colonies and subsequently through ratification of Article III of the U.S. Constitution and 1789 Judiciary Act. This section also analyzes the federal Process Acts of 1789, 1792 and 1828, and federal rules of court from 1791 through promulgation of the Federal Rules of Civil Procedure in 1938. These sources do not implicitly or explicitly characterize equity as limited to English chancery practice in the 1780s. Part IV analyzes caselaw and treatises from the late 1700s through the early 1900s to illustrate the reception of equity as a principle-based system, with a focus on the adequacy of legal remedies as the principle underlying injunctive power. Part V analyzes these same sources to show that early U.S. conceptions of equity and injunctions anticipated that they would adapt to changing circumstances. This adaptation was necessary for equity to continue to serve an ameliorative function relative to the ever-changing common law.
Part VI questions the equitable originalism approach to injunctive power. Because the meaning, history, tradition and purpose of federal injunctive power was a principle-based jurisdiction that would adapt to changing circumstances, there is nothing originalist or based in history and tradition justifying a crystallized concept of injunctive power as it existed in England in the 1780s. The validity of “newer” injunctions, such as nationwide injunctions, should not be based on inaccurate historical conceptions of the U.S. reception of English equitable remedies.