tag:blogger.com,1999:blog-17908317.post7696160180624485350..comments2024-03-28T03:15:14.875-07:00Comments on Unenumerated: Quo Warranto and the Presumption of NonauthorityNick Szabohttp://www.blogger.com/profile/16820399856274245684noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-17908317.post-9802574151240421282007-07-21T16:58:00.000-07:002007-07-21T16:58:00.000-07:00me: "Wilsonian argument"BTW that refers not to Woo...me: "Wilsonian argument"<BR/><BR/>BTW that refers not to Woodrow Wilson but to James Wilson, one of the drafters of the U.S. Constitution and promoter of the idea that "we the people," rather than either the States or the federal government, are "sovereign".Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-17908317.post-71399903879154770722007-07-21T16:55:00.000-07:002007-07-21T16:55:00.000-07:00"contrary to current doctrine, these are not creat..."contrary to current doctrine, these are not creatures of statute but fundamental rights that may not be constitutionally burdened"<BR/><BR/>In my hasty comments I should at least note that I fully agree that these writs are not creatures of <I>statute</I>. They are writs that arose from the king granting private jurisdictions and other political powers to lords and corporations, and from the lords and corporations retaining such powers by prescription, and the need for English courts (mostly the king's courts, since these were mostly the king's grants) to resolve property disputes involving these political property rights. Parliament's role was tertiary for most of that history, despite the famous statute of Quo Warranto (limiting the power of the king to declare franchises forfeit under quo warranto) and a few similar forays.<BR/><BR/>However, it is a big step further to say that they are rights any citizen can sue for in court. I'd say offhand this is much more likely for trespass writs (e.g. prohibitio and habeus corpus) than quo warranto, since in medieval and Renaissance England only the king (and perhaps more generally an upstream grantor of the property right) could bring a quo warranto action. (Think of "prohibitio" as an as-applied challenge to jurisdiction by a party to a case -- a single case of trespass -- whereas quo warranto challenged the title to the entire property).<BR/><BR/>It would be a quite odd twist to treat a mythological entity like "we the people" as the upstream grantor, but many even less plausible legal fictions have been invented and proven to be useful, and to the extent this was actually the law in the U.S. it should be at least looked into. In any case at the end of the day it's proven history in solving disputes, not theoretical plausibility, that should win the day in law.<BR/><BR/>A very interesting and important topic indeed; more in August. :-)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-17908317.post-46268055023315730742007-07-21T16:29:00.000-07:002007-07-21T16:29:00.000-07:00Great post, thanks! Alas, I won't have time to re...Great post, thanks! Alas, I won't have time to read your paper or respond to this in detail until August, but I've studied the history of the prerogative writs in medieval and Renaissance England, so I will make some observations much more informed by that than by what you have written.<BR/><BR/>The origin of these writs is that they were property-based writs -- writs of trespass (e.g. prohibitio) and writs of right (e.g. quo warranto) for political property (esp. for the rights to hold franchises such as private courts and enforcement powers).<BR/><BR/>You write: "contrary to current doctrine, these are not creatures of statute but fundamental rights that may not be constitutionally burdened"<BR/><BR/>This will require an interesting argument, since in England and up to 1776 in the U.S. the prerogative writs were generally seen as the king's writs, and it is often assumed that some entity (variously argued to be the States or the federal government) inherited such prerogatives of the king if anybody did.<BR/><BR/>But instead of just being the king's writs we can look on them as writs anybody who grants political property. Thus, for example, it would have been logically possible for the holder of a county palatine to issue analogs of these writs to their own franchisees (I didn't come across such a case, but then again I didn't search the records of the counties palatine).<BR/><BR/>One might make a Wilsonian argument that "we the people", not any government entity, inherited these rights in the U.S. But it might cause great practical problems to change from the grantor being able to bring a political writ of right (quo warranto) to any citizen being able to do so. Also there were ways to plead for the king to issue e.g. a prohibitio, and it was all actually done by the courts, so one could argue that the court itself is the only state entity that needs to be involved. (besides the official being challenged by quo warranto). I wonder if there are any real cases along these lines, perhaps from the Revolutionary War era. It does sound like a very good idea in theory, to be sure, but it may be one of those grand experiments we want to try on a small scale first.Anonymousnoreply@blogger.com