HISTORY, PUBLIC RIGHTS, AND ARTICLE III STANDING.

For decades, legal academics have complained about a conflict between history and the doctrine of Article III standing. First in Spokeo, Inc. v. Robins (2016) and then notably in TransUnion LLC v. Ramirez (2021), Justice Clarence Thomas presented a halfway resolution. Justice Thomas grounded Article III standing in a historical distinction between private and public rights. Suits for violations of private rights would require no showing of concrete injury in fact. Suits for violations of public rights would require the injury in fact showing of special damage, a term borrowed from the public nuisance tort. This Article questions the Thomas retention of injury in fact for public rights. Part I explains Justice Thomas's nuanced approach to Article III standing. Part II investigates old English and early American materials on special damage to flesh out the meaning of Justice Thomas's requirement for public rights standing. The upshot is a lack of historical consensus on the content of the special damage standard. The materials do not align on a precise standard, making it difficult, either as a matter of 1788 original meaning or later liquidation, to operationalize Justice Thomas's special damage requirement. Part III argues that there are good reasons to doubt that the requirement of special damage is constitutionally relevant to the original meaning of Article III. The Framers did not discuss special damage in connection to Article III. Most of the relevant cases are from state courts, which are not bound by Article III. The traditional rationale for the special damage requirement does not have constitutional significance. And it seems implausible that the Constitution incorporated a legal doctrine in such flux without textual indication. The Article concludes with a critique of the current Supreme Court's lack of concern for originalism in standing doctrine. [ABSTRACT FROM AUTHOR]