Hamburger's Law & Judicial Duty. Part 1: "Judicial Review."

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 . . . .

But Federalist 78 basically assumed that judicial review would exist and that there was no real alternative.
12.4.2008 8:09pm
James Lindgren (mail):
Yes, it was a long-accepted part of a judge's duty to apply superior law. It was not a Federalist invention and it was not largely created in the 1780s, as some prominent historians have claimed.
12.4.2008 8:37pm
Donald (mail) (www):
Geesh. I just proved I'm but a lowly practicing attorney and not at all a scholar. When I read the post's title, I thought I was about to read about a doctrine or statute known as "Hamburger's Law" and what duties judges have under that doctrine/statute.

And then the word "hamburger" reminded me I was still in the office and could use some dinner.
12.4.2008 9:25pm
DiverDan (mail):
Steve is right - the concept of Judicial Review was expressly contemplated by Federalist 78, and thus was known (or at least could have been known) and considered by the people who ratified the Constitution. What Federalist 78 says, in its discussion about how the Judiciary is the "weakest" of the three branches of government, is as follows:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

So, Federalist 78 (which predated Marbury v. Madison by som 15 years) not only assumes the power of Judicial Review, it expressly limits the circumstances in which that power may be exercised to those cases where legislative acts are "contrary to the manifest tenor of the Constitution." Cases in which the Supreme Court has exercised the power of Judicial Review untethered by any reference to the text of the Constitution, like Griswald v. Connecticut and Roe v. Wade are, in my opinion, illegitimate exercises of that power. That is NOT to say that I support the policy decisions thrown out in those cases; the laws at issue were very bad public policy. But for the judiciary to assume the power to through out bad law untethered by any textual limitation in the Constitution is usurpation of the power of "We the People."
12.5.2008 10:15am

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