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Archive for August, 2014

A recent post by Gerard Magliocca at Concurring Opinions brought to mind an interesting aspect of the arguments of counsel leading up to the Supreme Court’s landmark decision in Cohens v. Virginia (1821). Magliocca’s post,”Titles of Nobility Awarded by States,” considers whether Nebraska’s designation of him as an Admiral in Nebraska’s Navy violates the constitutional prohibition in Article I, Section 10, cl. 1 that “No State shall . . . grant any title of nobility.” Interesting question!

Magliocca did link his analysis to any case law deciding challenges to various titles of nobility. Maybe there are none. I have not run a comprehensive search for them, but I’m not aware of any such cases. If there are any, I wonder how they deal with the justiciability problem mentioned in Philip Barbour’s argument for Virginia in Cohens v. Virginia.

Barbour invoked the prohibition on state grants of titles of nobility (which corresponds to a similar prohibition placed on the federal government) in a portion of his argument explaining that there are some questions that may arise under the Constitution but never give rise to a justiciable case:

[T]here are questions arising, or which might arise under the Constitution, which the forms of the Constitution do not submit to judicial cognizance. Suppose, for example, a State were to grant a title of nobility, how could that be brought before a judicial tribunal, so as to render any effectual judgment? If it were an office of profit, it might, perhaps, be said, an information in the nature of a quo warranto would lie; but I ask whether that would lie, in the case which I have stated, or whether an effectual judgment could be rendered? It is a title, a name which would still remain, after your judgment had denounced it as unconstitutional. Where a quo warranto lies, in relation to an office, the judgment of ouster is followed by practical and effectual consequences.

It may be anachronistic to use the label of “non-justiciable” to describe Barbour’s argument, but that is probably the best translation into our way of framing these issues now. Barbour seems to be saying that the closest writ–quo warranto–would not lie. No writ, no remedy; therefore no case. We might put it in different terms, if only because standing doctrine so dominates our way of thinking about justiciability. We might say that the challenger (whoever that might be) would lack standing because the injury could not be remedied.  No “effectual judgment” could be rendered, in Barbour’s words, because “[i]t is a title, a name which would still remain, after [the court’s] judgment had denounced it as unconstitutional.”

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