Posted by Jim Lindgren:
Hamburger’s Law & Judicial Duty. Part 4: Evidentiary Issues.
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228439486
In my fourth selection from the introduction of Philip Hamburger�s Law
and Judicial Duty, Hamburger raises some of the evidentiary issues:
The judicial authorization of judicial review and its intimations
of judicial power are only plausible because the most significant
evidence appears to be missing. Although many cases of judicial
review occurred after the adoption of the U.S. Constitution, the
evidence of earlier cases seems weak. As Edward Corwin explains,
"[t]he capital difficulty consists in the paucity of the evidence."
In fact, the problem is not so much evidentiary as conceptual. The
trouble arises from the very notion of judicial review, which is a
concept so tightly focused on modern concerns that it renders many
of the early decisions almost irrelevant. If judicial review is
today considered prototypically a review of legislation, then early
decisions about executive and judicial acts do not appear very
central. Similarly, if judicial review is associated with cases,
then other types of decisions, such as resolutions and advisory
opinions, seem anomalous.
The assumption that the historical inquiry must be a search for
judicial review further narrows the evidence by reducing it to a
matter of precedent. The difficulty of finding evidence of judicial
review in the 1780s or earlier has appeared to suggest that the
American judges must have subsequently developed this power, and it
therefore seems necessary to find the precedents with which they
established it. Many scholars therefore largely ignore the judicial
determinations that were not cases, and on the assumption that
judicial review could only have been established by the highest
court of a state or the nation, the scholars even tend to discount
state and especially lower court cases. Actually, the
determinations of the most lowly of courts are the best evidence of
what men took for granted, and one of the great pleasures of this
study has been to locate some of these humble and therefore all the
more revealing decisions. In pursuit of precedent, however, most
commentators focus on familiar and elevated sources�on cases,
federal courts, and especially the U.S. Supreme Court. . . .
All of these evidentiary problems (including the scarcity of
precedents and the difficulty of sorting a limited number of cases)
can be avoided here because, although the precedents for judicial
review remain difficult to discern, the evidence about law and
judicial duty turns out to be abundant. A simple shift in focus
from judicial review to judicial duty is all that is necessary to
bring the evidence into view. With this conceptual adjustment, what
was previously little more than an evocative blur becomes an
expansive and well-defined landscape, filled with vivid details.
The evidence in such ways thus requires a change in paradigm�a
return from the modern notion of judicial review back to the old,
forgotten ideal of judicial duty.
The very label "judicial review" is misleading, for it suggests
both too little and too much. Judges had an office or duty to
decide in accord with the law of the land in all of their
decisions, not merely when engaged in "review," and the phrase
"judicial review" therefore describes only a fraction of the
instances in which judges were bound by their duty and only some of
the instances in which judges determined that customs or acts were
unlawful. At the same time, the phrase suggests too much, for it
alludes to judicial power without reference to judicial duty and
thus lends itself to discussion of a power broader than the duty.
In fact, although judges understood that in doing their duty, they
enjoyed a power to enforce constitutions and protect rights, they
ordinarily conceived of this power in terms of their duty and did
not understand the power to extend any further.
A concept as familiar as judicial review may be difficult to put
aside. Certainly, some readers will attempt to understand the
argument here in terms of judicial review�as if the point were
simply that judicial review was older and slightly different than
usually assumed. The evidence, however, leads away from notions of
judicial review, and to understand the history, it is necessary to
follow the evidence.
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
Monday: Part 5: The Common Law Concepts of Law & Judicial Duty
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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