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.
Monday: Part 5: The Common Law Concepts of Law & Judicial Duty