The best law book I read this year is Philip Hamburger’s Law and Judicial Duty, recently released by Harvard Press. At 700 pages, it is a 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 . . . .