Posted by Jim Lindgren:
Hamburger’s Law & Judicial Duty. Part 1: “Judicial Review.”
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228438049
The best law book I read this year is Philip Hamburger�s [1]Law and
Judicial Duty ">
, recently released by Harvard Press. At over 600 pages, it is a
fairly thorough examination of the history of judicial duty to apply
superior law, a duty that has as one of its offshoots the courts�
obligation to strike down executive, legislative, and judicial actions
that violate higher laws.
After making an exceedingly impressive study of early English and
American authorities, Hamburger argues:
The evidence reveals the importance of the common law ideals of law
and judicial duty. It shows that these two ideals, taken together,
required judges to hold unconstitutional acts unlawful. In pursuing
the evidence, therefore, this book cannot focus on a distinct power
to hold acts unconstitutional, but rather must more generally study
the nature of law and of judicial office as understood by common
lawyers.
He has kindly allowed me to quote at length from the introduction to
the book in several posts over the next few days.
Hamburger first suggests that �judicial review� is a modern concept
that tends to obscure the nature of the historical evidence and leads
to what I would call the �heroic� view of Marbury v. Madison.
According to the conventional version of this history, the American
people in the 1770s and 1780s discovered the principle of popular
power and thereby invented written constitutions. The people,
however, apparently did not foresee how their constitutions should
be enforced. Fortunately�so the story goes�the judges discerned the
possibility of enforcing constitutions in their cases, and they
made some fitful experiments in this direction in the 1780s and
then more confidently in the 1790s. Although they could draw upon
earlier, English and colonial traditions, they had to develop the
mechanism of reviewing enactments for their unconstitutionality,
and they most decisively settled the authority of this new power in
1803 in Marbury v. Madison. Evidently, although the people created
their constitutions, the judges had to complete the creation of
American government by developing and finally establishing their
own most significant power.
Even the most familiar stories, however, can turn out to be
misleading, and few stories about America are as misleading as that
about judicial review. The history and its implications rest on the
fragile assumption that there is little evidence of judicial review
from the decade and a half after 1776�this being the basis for
concluding that American judges must have created this power. The
evidence admittedly is meager if one looks for a concept of
judicial review�a concept of a judicial power to hold statutes
unconstitutional. Yet if one does not look for something so modern,
there is much evidence�not of a power of judicial review, but of a
duty of judges to decide in accord with the law of the land. The
evidence thus reveals the history of judicial review to be largely
an illusion produced by modern assumptions, and in its place the
evidence supplies another, much broader history�that of law and
judicial duty.
The History of Judicial Review
For more than a century, much scholarship has been done within the
framework of what is here called "the history of judicial review."
This scholarship tends to be very learned, and it is frequently
relied upon here, but the framework itself must be questioned. It
will soon be seen that eighteenth-century judges did not understand
themselves to have a distinct power of review and that it is
therefore misleading to inquire about their conception of such a
power. . . .
The most popular version of the history focuses on Marbury v.
Madison. This version acknowledges that by 1803 state and federal
judges had already experimented in holding statutes
unconstitutional, and it recognizes that after 1789 they could draw
on the Constitution's incomplete hints about judicial power, but it
emphasizes that in 1803, in Marbury. Chief Justice John Marshall
gave judicial review the force of an unimpeachable precedent of the
U.S. Supreme Court. Marshall would thus seem to have been the
founding father of judicial review, and his opinion in Marbury its
authorizing text.
Of course, there are less implausible variations on the theme of
judicial self-authorization, and some identify earlier origins, but
without displacing the suggestion that the judges themselves
established their power of review. . . .
Whether in looking back to 1803, 1787, the earlier years of the
1780s, the colonial period, or the eternity of natural law, these
different versions of the history of judicial review all leave the
impression that American judges established this power for
themselves. These judges could draw on past experience, and they
therefore did not have to construct judicial review out of whole
cloth, but because they had so little direct authority in their
constitutions, they evidently had to develop and institute their
review of acts for their constitutionality, and they thus appear to
have provided the authority for their own greatest power.
More to come . . . .
References
1. file://localhost/var/www/powerblogs/volokh/posts/<a%20href=
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