Posted by Randy Barnett:
In the Mail: Hamburger's "Law & Judicial Duty":
http://volokh.com/archives/archive_2009_01_18-2009_01_24.shtml#1232739879
Philip Hamburger's new book, Law and Judicial Duty, arrived. It is a
"big" book both in ambition and sheer length (621 pp.). Here is the
publisher's description (which is typically written by the author).
Almost every day, a judge in the United States holds a statute
unconstitutional. This power of the judges is known as �judicial
review,� and it often seems the central feature of American
constitutional law. The authority and scope of this power, however,
have long remained unclear, and because historical accounts have
tended to suggest that the judges themselves largely developed
judicial review, the history has given credence to the view that
judges enjoy considerable discretion over the extent and exercise
of this power.
IFRAME:
[1]http://rcm.amazon.com/e/cm?t=randyebarnetbost&o=1&p=8&l=as1&asin
s=0674031318&md=10FE9736YVPPT7A0FBG2&fc1=000000&IS2=1<1=_blank&m=
amazon&lc1=0000FF&bc1=000000&bg1=FFFFFF&f=ifr
Law and Judicial Duty presents a very different history and a very
different conception of the power of the judges. Drawing upon
previously unexplored evidence, Philip Hamburger reveals the
familiar notion of judicial review to be largely an illusion
produced by modern assumptions, and he shows that what today is
called �judicial review� was once understood more simply as part of
the duty of judges to decide in accord with the law of the land.
His book challenges many modern assumptions about the extent of
judicial power, and by exploring judicial duty in its social
context, the book raises sobering questions about the nature of law
and the possibility of government under law.
I think Hamburger is a very interesting writer and I always learn from
his work. From the description, I think I will be in considerable
agreement with his thesis. For my take on judicial review you can see
the (much shorter) [2]Original Meaning of the Judicial Power. Here is
the abstract
In this paper, I refute any claim that judicial review was invented
in Marbury v. Madison, or that, because it is contrary to the
original meaning of the Constitution, it must be justified by some
nonoriginalist interpretive methodology. I will do so, not by
discerning the shadowy and often counterfactual "intentions" of the
founding generation, but by presenting as comprehensively as I can
what the founders actually said during the constitutional
convention, in state ratification conventions, and immediately
after ratification. These statements, taken cumulatively, leave no
doubt that the founders contemplated judicial nullification of
legislation enacted by the states and by Congress.
In short, I shall demonstrate that the original meaning of the
"judicial power" in Article III, included the power of judicial
nullification. Many constitutional scholars who do not consider
themselves to be originalists nevertheless acknowledge that
originalism provides the starting point of constitutional
interpretation or at least is a factor to be considered among
others. It is equally important that these nonoriginalists are made
aware of the substantial evidence that the original meaning of the
"judicial power" included the power to nullify unconstitutional
laws.
I do not claim that my essay can possibly cover the ground of
Hamburger's massive study. But I do think our conclusions are similar:
judicial nullification was widely understood to be included in the
original meaning of "judicial power" to which Article III refers. But
the modern conception of "judicial review" goes well beyond this.
References
1.
http://rcm.amazon.com/e/cm?t=randyebarnetbost&o=1&p=8&l=as1&asins=0674031318&md=10FE9736YVPPT7A0FBG2&fc1=000000&IS2=1<1=_blank&m=amazon&lc1=0000FF&bc1=000000&bg1=FFFFFF&f=ifr
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=437040
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