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Hamburger's Law & Judicial Duty. Part 3: Implications for Judicial Power.

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.

Tomorrow: Part 4: Evidentiary Issues

Cornellian (mail):
These quotes keep dancing around the issue. What is a court to do when a case comes before it in which the plaintiff is making a claim under some statute (let's call it the Smith-Jones Act) and defendant says he doesn't have to pay it because Smith-Jones is inconsistent with the Constitution? Whether the court agrees with the plaintiff or the defendant it is engaging in "judicial review." Short of repealing the Supremacy Clause, what does the author suggest the court is to do?
12.5.2008 2:36pm
DiverDan (mail):
I'll repeat myself a bit from an earlier post, because I think it's an important historical point that keeps getting missed. Even such authorities as Learned Hand, Alexander Bickel, and Eugene Rostow seem to think that judicial review has no basis in the Constitution. But the Supremacy Clause seems to have little use if not to authorize, even direct, the Judiciary to give primacy to the Constitution over acts of the Legislature that conflict with the Constitution. And Judicial review was NOT, despite what you may have been (erroneously) taught in Law School, an innovation of Justice John Marshall in Marbury v. Madison. It was expressly contemplated by the Founders, or at least by Alexander Hamilton, who wrote in Federalist No. 78 (some 15 years before Marbury v. Madison):


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.


Recall that the Federalist Papers were a series of essays published in the newspapers of the day, intended to influence the several states to ratify the Constitution. So, at least at the time the Constitution was ratified, it was expressly contemplated that Judicial Power included the power to declare any legislative acts void if they were "contrary to the manifest tenor of the Constitution." The only "judicial invention" with respect to the power of judicial review has been stretching this power beyond all recognition (and beyond all justification), so that it is not just a direct conflict with "the manifest tenor of the Constitution" that will justify the exercise of the power, but any law which might be thought by any 5 Justices to impinge, even if only slightly, on a concept found only in the "emanations from the shadows of the penumbras" of the Constitution is now fair game for judicial review.
12.5.2008 3:01pm
Jon Rowe (mail) (www):
Hamburger is an extremely brilliant, learned and meticulous scholar. The only problem with his work is that it makes extremely tendentious, controversial and disputed claims. [And acts as though he "settles" the matter, when, to the contrary, he just raises some serious scholarly doubts].

He did as much with his thesis of "Separation of Church and State" which, unfortunately, relies on the genetic/poisoning the well fallacy wherein he tries to discredit the idea by associating it with the KKK.

Personally I don't think the idea of "Separation" as modern liberal jurists endorse it is defensible, but the idea of equal rights/equal respect in religious matters certainly is (see, for instance, Martha Nussbaum's latest Magnum Opus on the matter), which in essence vindicates the notion that government can't discriminate among the religions or between religion or atheism/agnosticism (not unlike what Everson establishes under the rubric of "separation").

With this new work, what I get from it is that judicial nullification is a valid principle on originalist grounds, but since it wasn't something judges/John Marshall "created," judges properly have no discretion whatsoever when deciding whether to strike down a piece of legislation (or other act of government). They MUST determine, in an objective sense, whether a "higher" source of law (and presumably the US Constitution is the highest source of law) commands them to nullify a "lower" sources of law. And if it does, judges must do their "duty."

I don't know; it strikes me as a big attempt to argue against the "politicization" or "discretionary feeling" that judges might feel they have in regard to whether they want to exercise judicial nullification or restraint. A clever judge might argue she is striking down an act of government (for instance a law that defines marriage between a man and a woman) because she has no other "choice" in the sense that Hamburger argues.

I recall reading a law review article of his on the matter that on these "disputed" "natural law" issues of what matters are "antecedent" to majority rule, legislatures were intended to resolve. [NOT counter-majoritarian institutions like courts.]

Whatever. It's Hamburger's intent to argue away from the notion that courts have the proper power to determine issues of individual rights antecedent to majority rule, wherein a Court invoking for instance "natural rights" under the rubric of the 9th or 14th Amendments or the broad "unalienable rights" in the Declaration of Independence have the just power to nullify laws passed by legislatures or state constitutions.

I stand unconvinced that his notions of "higher law" and how to apply it are proper from historical, legal or moral perspectives. But...my mind is open.
12.5.2008 4:32pm
Tritium (mail):

The judicial Power shall extend to: all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;


The Supreme Court's Jurisdiction was limited to "This Constitution", which provides for the Establishment and Rules for the Establishment. It could only do what was expressly granted by the Constitution.

i.e. To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;


The Constitution is a document that creates and establishes the Pillars or foundation by which the Government of the United States derive their rules and guidelines by which they operate. It expressly enumerates the legislative powers granted, and the restrictions upon such powers. The act making the Constitution's authority unquestionable and a permanent document was the peoples ratification by 3/4's of the conventions of the several states.

The Constitution is like a card game. Once the cards are dealt, you can't change the rules of the game to best match the cards you were dealt. Once rules are established, a new game begins. If you want to alter the intent of any provision, it would by necessity need to result in a new Constitution.

The Justices would only declare the Constitutionality of an act by Congress, and if such a declaration is motivated by personal opinion, then congress has the power to impeach.

Since a Constitution Creates or Establishes, it cannot define or restrict a Sovereign that existed before it. Not without their consent. A toddler cannot have a greater authority than a parent or guardian. Nor can a party to a contract obligate others without their consent.
12.5.2008 9:05pm
Andrew G:
My mind fails to comprehend how so many Constitutional scholars can so confidently assert that "judicial review" has no discernible basis in the Constitution. To the contrary, it's hard to imagine a governing principal so strongly interwoven into the Constitution - in particular the Supremacy clause and the Oath clause.

And yet, even though Judicial Review is unquestionably a proper and Constitutional judicial function, today, the power claimed by the Judicial branch is a gross usurpation. My theory is that these scholars, in order to justify the extravagant and unconstitutional excesses of judicial power today, cleverly have adopted the long-discredited arguments that Judicial Review has no Constitutional basis. By insinuating that Judicial Review was a necessary, if not Constitutionally justified, expression of Judicial power, they make the more extravagant displays of today easier to swallow. Thus, outrageous and unconstitutional power grabs like those in Cooper v. Aaron, Planned Parenthood v. Casey, and Boerne v. Flores have scarcely raised an eyebrow; since we've all been conditioned to believe that since Marbury itself was a power grab without Constitutional basis, these latter cases are no cause for alarm.

Probably the clearest explanation of Marbury, its logic, and what it did and did not mean, is Paulsen's "The Irrepressible Myth of Marbury." here
12.6.2008 12:30am

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