Posted by Jim Lindgren:
Hamburger’s Law & Judicial Duty. Part 2: The Logic of Judicial Review.
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228439045
In my second selection from the introduction of Philip Hamburger�s Law
and Judicial Duty, Hamburger examines the questionable logic of
�judicial review.�
The Logic of Judicial Review
The implication of the history�that judicial review has its
authority from the judges�troubles some distinguished scholars of
constitutional law, who respond that a more grounded sort of
authority can be discerned in the logic underlying judicial review.
Rather than attempt to give a full historical account, these
scholars examine salient points in the history�usually 1803 and
1787�to draw attention to the logical assumptions from which
judicial review can be derived. Yet in pursuing the logic that
might support a new judicial function, these scholars miss the more
traditional and general logic of judicial duty, and in relying on
texts from 1787 and 1803, they seem to suggest that the judges
still had to elicit and give shape to the inchoate logic. In both
ways, the scholarly observations about the logic exacerbate rather
than put to rest the history's implication that the judges
authorized their own power to hold acts unconstitutional.
The pursuit of the logic underlying judicial review is familiar
from the standard approach to teaching Marbury v. Madison�an
approach that rests on the significance of deciding cases. Marshall
argued in Marbury that when judges decide cases, they have "to say
what the law is," for "[t]hose who apply the rule to particular
cases, must of necessity expound and interpret that rule," and "if
both the law and the constitution apply to a particular case . . .
the court must determine which of these conflicting rules governs
the case." Generations of law students have been taught from these
words to regard judicial review as the logical outcome of cases,
and with this approach to Marbury lawyers can understand the
decision as derived from premises discernible in law. Judicial
review thus becomes a conclusion of law�even if one that Marshall
had to spell out and establish in a decisive precedent.
Although this pursuit of Marbury�s logic can locate analytical
foundations for judicial review, it does not make much of a dent in
the history of judicial review or its implication that the
authority for this power came from the judges themselves. One
difficulty is that by relying on a case that postdates the
Constitution, such analysis suggests that the judges still had to
develop and give substance to the logic of judicial review. A
deeper problem is that the study of Marbury�s logic focuses on what
is necessary for deciding cases and thus does not adequately
explore Marbury�s allusions to the traditional ideals of law and
judicial duty. It is true that, in order to decide their cases,
judges must expound the law. Yet while it is important to
understand when a judge must decide a constitutional question, this
does not resolve how he should do so or what has the obligation of
law, and by compressing these profound questions into the reasoning
about deciding cases, the scholarly treatment of Marbury�s logic
tends to omit much of the logical and historical depth. Marshall
understood the importance of these more basic questions, and
although he did not bother with detailed answers, he gave two
fleeting hints. As to law, he asked, "[i]f an act of the
legislature, repugnant to the constitution, is void ��. does it
constitute a rule as operative as if it was a law?" With respect to
duty, he said that the court must decide which of the conflicting
rules�the law or the constitution�governs a case, and he then
explained, "[t]his is of the very essence of judicial duty."
Marshall thus briefly alluded to the pair of ideas that occupy so
much of this book, but because he could take them for granted, he
made no effort to explain them. Not recognizing the depths of what
Marshall simply assumed, scholars of judicial review miss the
logical and historical foundations provided by the ideals of law
and judicial duty, and they therefore end up concentrating on
Marshall's more explicit but less fundamental point about deciding
cases. The inquiry about Marbury�s logic thus not only focuses on a
case that postdates the Constitution but also largely bypasses the
old, foundational ideals that would allow one to understand the
degree to which Marshall was engaged in very traditional judicial
reasoning. In both ways, rather than displace the suspicion that
judicial review derives from the judges, the inquiry about
Marbury�s logic makes Marshall's opinion seem an act of
intellectual prowess in which he and his brethren largely
established their own power. . . .
IFRAME:
[1]http://rcm.amazon.com/e/cm?t=thevolocons-20&o=1&p=8&l=as1&asins=067
4031318&fc1=000000&IS2=1<1=_blank&m=amazon&lc1=0000FF&bc1=000000&bg1
=FFFFFF&f=ifr&nou=1
Tomorrow: Part 3: Implications for Judicial Power.
References
1.
http://rcm.amazon.com/e/cm?t=thevolocons-20&o=1&p=8&l=as1&asins=0674031318&fc1=000000&IS2=1<1=_blank&m=amazon&lc1=0000FF&bc1=000000&bg1=FFFFFF&f=ifr&nou=1
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