Posted by Jim Lindgren:
Hamburger’s Law & Judicial Duty. Part 3: Implications for Judicial Power.
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228439344
In my third selection from the introduction of Philip Hamburger�s Law
and Judicial Duty, Hamburger suggests that misunderstandings of the
history of judicial review tend to lead to a more expansive view of
judicial power. If judges established their own power of review, �this
would seem to leave them with an extraordinary discretion over the
liberty of their fellow Americans.�
Implications for Judicial Power
The history of how judges developed "judicial review" has
consequences for judicial power. By shifting the constitutional
authority for judicial review from the Constitution to the judges,
the history appears to imply that the judges enjoy control over the
scope and exercise of judicial review�thus leaving them power over
their own role in enforcing the Constitution.
Initially, the history of judicial review seemed to call into doubt
the legitimacy of judicial review, for if the framers "intended the
Court to have the power, why did they not provide for it?" On such
assumptions, some commentators almost a century ago charged the
judges with "usurpation." Fifty years later, many scholars still
treated judicial review as a debatable proposition," and they
thereby questioned the authority of judicial expositions of the
Constitution, arguing that all branches of government enjoy a power
of interpretation. . . .
Judicial power, however, has come to seem less troubling than it
did to earlier generations, and commentators therefore increasingly
assume that the judicial creation of judicial review was but a
singularly important example of an inevitable judicial discretion
over constitutional law. Abandoning the word "usurpation," they
propose that even if judicial review lacks much authority in the
U.S. Constitution, it has a broad basis in judicial power and
American society. Alexander Bickel writes that "the power of
judicial review �� cannot be found" in the constitution and that
therefore "the institution of the judiciary needed to be summoned
up out of the constitutional vapors, shaped, and maintained;" but "
[i]f any social process can be said to have been 'done' at a given
time. and by a given act, it is Marshall's achievement �� in the
case of Marbury v. Madison."' Less confident that the Chief Justice
somehow accomplished so much in a single case, other scholars
combine judicial creativity and public acquiescence to overcome the
absence of authority in the U.S. Constitution. As put by Eugene
Rostow, judicial review "stands now, whatever the Founding Fathers
may in fact have meant, as an integral feature of the living
constitution, long since established as a working part of the
democratic political life of the nation." Although perhaps not "the
intention of the Founding Fathers," it is �part of the living
constitution."
With this attribution of judicial review to the judges, the history
of judicial review gives legitimacy to a broad judicial control
over the extent and exercise of judicial power. Justice Jackson
argues that "[s]ince the power was not disclosed by the instrument,
it follows that it was not limited or regulated by it" and
concludes that "[w]hen the power should come into play" and "by
what caution and safeguards it would be hedged" were matters left
to evolution of what we know as 'Judicial Supremacy."' . . .
The judicial discretion implied by the history becomes especially
clear from the claims that judges can vary their enforcement of
constitutional law. Building on Justice Harlan Fiske Stone's
suggestion in Carolene Products that the judges can adopt different
degrees of "judicial scrutiny," Learned Hand argues that "nothing
in the United States Constitution �� gave courts any authority to
review the decisions of Congress," and that since this power is not
a logical deduction from the structure of the Constitution but only
a practical condition upon its successful operation, it need not be
exercised whenever a court sees, or thinks it sees, an invasion of
the Constitution. . . .
The weakness of the constitutional authority has left the judges to
analyze their power in terms of political theory. If the U.S.
Constitution did not authorize judicial review, "the function must
be supported by... other reasons," and with this sense that
judicial review rests on functional justifications, Bickel
concluded that "there will . . . be instances when it seems
justifiable to exercise judicial review more vigorously against the
states than the federal legislature or executive, and instances
calling for less vigor as well"�the latter being times for prudence
and what Bickel called the "passive virtues." The theory invited by
the apparently weak constitutional authority for judicial review
has thus appeared to suggest that judges should adjust the severity
of their review in accord with a wide range of considerations,
including the judges' institutional competence, the danger from
different levels of government, the importance of different types
of rights, and the political circumstances of different social
groups. In one version or another, this sort of political
theorizing has been the preeminent mode of analyzing judicial
review for half a century, and after being intimated by Hand and
Bickel, and elaborated by Jesse Choper and John Hart Ely, it has
become profoundly influential.
The history of judicial review thus creates an opening for an
expansive judicial power. If judges established their power of
review on their own authority, they would appear to have control
over the character and exercise of the power, and this would seem
to leave them with an extraordinary discretion over the liberty of
their fellow Americans.
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 4: Evidentiary Issues
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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