According to the Supreme Court, private litigation has run amok in America. At some point in the twentieth century, the Court believes, litigation transformed from a mechanism for resolving discrete disputes into a tool for regulatory enforcement and “government by lawsuit.” The consequences of this transformation are everywhere: sprawling class actions, universal injunctions, and endless suits under environmental, civil rights,  and antitrust statutes—all modern departures from traditional practice, according to the Court’s originalist majority. Justice Kavanaugh summed up this narrative when he asserted in TransUnion that “until the 20th century, Congress rarely created ‘citizen suit’-style causes of action for suits against private parties by private plaintiffs who had not suffered a concrete harm.”

Building on this historical claim, the Court has embarked on an ambitious project to restore what it sees as litigation’s proper, pre-twentieth-century function: resolving discrete disputes between injured parties. This vision has driven recent decisions limiting standing, restricting class actions, curtailing national injunctions, and threatening qui tam provisions. If the Court’s history is correct, these interventions rest on sound originalist foundations. But if the history is wrong, the Court’s campaign rests on a fiction.

This Article offers an alternate historical account that inverts the Court’s narrative. Far from being a 1960s innovation, regulatory litigation was the dominant enforcement model in the Early Republic. Throughout the nineteenth century, Congress and state legislatures routinely empowered “common informers”—uninjured strangers—to enforce regulatory law by suing violators for statutory penalties. These informer provisions governed fisheries, usury, land transfers, customs enforcement, intellectual property, census compliance, and countless other regulatory domains. They were central to American governance. Even McCulloch v. Maryland—the canonical case establishing federal supremacy—reached the Supreme Court through an informer lawsuit. This evidence directly contradicts arguments by influential scholars, now adopted by Justice Thomas and lower court judges, that informer provisions vanished after the Founding era.

This Article tells the story of how the early American state implemented its regulatory ambitions through private enforcement and litigation rather than bureaucracy. To do so, we have systematically reviewed and distilled hundreds of Early Republic statutes, hundreds of cases, legal treatises, a wealth of primary sources, and the secondary literature on Early Republic civil litigation. We demonstrate that Congress enacted dozens of federal informer provisions during this period, with state and local governments enacting hundreds more. This nineteenth-century, post-Founding evidence fills a gap in legal historiography created by scholarly focus on “qui tam” as the relevant category, when nineteenth-century lawyers used broader terms like “penal statutes” and “popular actions.” The Article then explains why informers declined by the early twentieth century—not because of constitutional concerns related to the separation of powers, but because several practical forces made alternative enforcement mechanisms more attractive. Senator John Sherman’s evolution from championing informers in the 1870s to designing the injury-based private right of action in the Sherman Antitrust Act of 1890 illustrates this transition. Overall, the Article’s findings should put regulatory litigation and maybe even “government by lawsuit” on solid constitutional footing.