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Empire in Equity


This Essay tells a story of how a contest for empire contributed to the law of justiciability in the U.S. federal courts. It begins in the eighteenth century in the Carnatic, a region in East India, winds its way through the territory of the Cherokee Nation in the nineteenth century, and eventually touches on the State of Tennessee in the twentieth. It is a story about a 1793 decision of the English Court of Chancery that American lawyers and judges would come to cite for the principles that courts will not address political questions and that equity will not intervene to protect political rights. This decision—Nabob of the Carnatic v. East India Company—would appear in judicial opinions concerning some of the nineteenth century’s highest-profile controversies over political power. By the early-to-mid twentieth century, the case was cited as a—even the—foundational political question case, and Justice Felix Frankfurter would call it a “celebrated decision” in his 1962 dissenting opinion in Baker v. Carr. Notwithstanding Baker’s holding that some political rights claims are justiciable, the federal courts have not shaken the notion that equity should stay out of contests over political power. It has echoes in the modern political question doctrine and the law of stand- ing in the federal courts. The principle that equity should not settle contests over political power sounds sensible enough. Yet as with any principle, this one takes some of its sense from the politics that shaped—and sustain—it. If the history of Nabob of the Carnatic and its subsequent citations are any guide, the question is not whether equity will intervene in contests for empire. The question instead is when equity will intervene, and for whom.

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