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The notion that standing is a bedrock requirement of constitutional law has a surprisingly short history. Frothingham v. Mellon, n20 which rejected [*1376] a taxpayer suit to enjoin a federal spending program, is generally thought of as the first modern standing case. n21 In fact, it is not. Fairchild v. Hughes, n22 decided a year before Frothingham and authored by Justice Brandeis, was the first case to reject a taxpayer suit because the "[p]laintiff's alleged interest in the question submitted is not such as to afford a basis for this proceeding." n23 The Frothingham Court reached its conclusion that Ms. Frothingham could not sue without citing or identifying any precedent either for that conclusion or the premises it offered in support of that conclusion. n24
Perhaps more surprising, Frothingham was preceded by three federal and two state taxpayer actions that the Court adjudicated on the merits. n25 Moreover, as late as 1935, neither Professors Frankfurter nor Hart discussed Frothingham, Fairchild, or the concept of standing in their writings on article III justiciability limits on federal courts. n26 All of this [*1377] is unusual to say the least. One legitimately may wonder how a constitutional doctrine now said to inhere in article III's "case or controversy" language could be so late in making an appearance, do so with so skimpy a pedigree, and take so long to be recognized even by the primary academic expositors of the law of federal courts.
The traditional answer places heavy emphasis on the function of the common law writ system to do the work now done by the concept of standing. n27 According to this analysis, the concept of standing could only arise after the breakdown of the writ system and of common law pleading. Standing then developed as an elaboration of the essence of the private causes of action previously embodied in the writs. n28 As such, the modern concept of standing, with its focus on injury-in-fact, is thought to be only the preservation of the private rights model n29 of adjudication known to the Framers.
The traditional account is, however, inconsistent with the historical data. It cannot account for the five taxpayer actions that preceded Frothingham and Fairchild. n30 Moreover, it ignores the established practice in state courts, throughout the nineteenth century, that provided for public rights suits brought by plaintiffs who had no personal interest or injury-in-fact. n31 Finally, it is disproved by the fact that the Supreme Court, in 1875, specifically approved of this public rights [*1378] practice in a federal case without any constitutional objection. n32 I expand and develop this history in Section III; I then chart and attempt to explain its demise in Section IV.
https://constitution.org/duepr/standing/winter_standing.htm
Useful quotes:
A critical key to achieving federal constitutional compliance is to resurrect quo warranto and other common law writs. This involves reasserting and strengthening the original All-Writs Act and repealing or declaring unconstitutional legislation, such as the Tax Anti-Injunction Act, and those Rules of Judicial Procedure, that have restricted the jurisdiction of federal courts to accept these writs and grant a fair hearing ("oyer") and a decision on the merits ("terminer") on such demands.
"Jurisdiction can be challenged at any time." Basso v. Utah Power & Light Co., 495 F 2nd 906 at 910.
"It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefore." U.S. v. Benson, 495 F.2d, at 481 (5th Cir., 1974).
"The law provides that once State and Federal Jurisdiction has been challenged, it must be proven." Main v. Thiboutot, 100 S. Ct. 2502 (1980).
"Where there is absence of proof of jurisdiction, all administrative and judicial proceedings are a nullity, and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack." Thompson v Tolmie, 2 Pet. 157, 7 L. Ed. 381; and Griffith v. Frazier, 8 Cr. 9, 3 L. Ed. 471.
"the burden of proving jurisdiction rests upon the party asserting it." Bindell v. City of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991).
https://www.constitution.org/writ/quo_warranto.htm
Several things should be noted in these statutes:
These statutes are codifications of existing common law practices, albeit practices that had been used little if at all for a long time.
Normally such a writ would be issued to one claimant to authority (his "franchise") at a time, but these statutes are notice that all of the grants of feudal privilege are being challenged at the same time.
Since the judgments would be by judges appointed by the King, he was in a position to strip anyone of his feudal privileges, together with all the power and income that might come with them.
This was essentially a move to put all feudal lords on the defense, so that the King could remove any that opposed him or his policies, and confirm the obeisance of the rest.
Despite this irregular use of the writ, it does serve to formally embed the common law pleading in the English constitution, which it does explicitly.
Once established as a tool that could be used by a monarch, it also establishes it as a tool for use by the people when they become the sovereign, as happened upon adoption of the U.S. Declaration of Independence.
The two statutes, although adopted on the same day, and saying much the same thing, are in law Latin and law French, and the English translations were apparently done later. The differences are subtle but interesting, and seemed to be for somewhat different audiences.
It should also be noted that the original common law writs of quo warranto were demands on the party claiming authority, the respondent, who had the burden of proof, not petitions for relief from the court, other than declaratory., with the burden of proof on the petitioner.
Once established as a tool that could be used by a monarch, it also establishes it as a tool for use by the people when they become the sovereign, as happened upon adoption of the U.S. Declaration of Independence.
https://www.constitution.org/eng/stat_quo_warranto_1290.html