In my second selection from the introduction of Philip Hamburger's Law and Judicial Duty, Hamburger examines the questionable logic of "judicial review."
The Logic of Judicial Review
The implication of the history—that judicial review has its authority from the judges—troubles some distinguished scholars of constitutional law, who respond that a more grounded sort of authority can be discerned in the logic underlying judicial review. Rather than attempt to give a full historical account, these scholars examine salient points in the history—usually 1803 and 1787—to draw attention to the logical assumptions from which judicial review can be derived. Yet in pursuing the logic that might support a new judicial function, these scholars miss the more traditional and general logic of judicial duty, and in relying on texts from 1787 and 1803, they seem to suggest that the judges still had to elicit and give shape to the inchoate logic. In both ways, the scholarly observations about the logic exacerbate rather than put to rest the history's implication that the judges authorized their own power to hold acts unconstitutional.
The pursuit of the logic underlying judicial review is familiar from the standard approach to teaching Marbury v. Madison—an approach that rests on the significance of deciding cases. Marshall argued in Marbury that when judges decide cases, they have "to say what the law is," for "[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule," and "if both the law and the constitution apply to a particular case . . . the court must determine which of these conflicting rules governs the case." Generations of law students have been taught from these words to regard judicial review as the logical outcome of cases, and with this approach to Marbury lawyers can understand the decision as derived from premises discernible in law. Judicial review thus becomes a conclusion of law—even if one that Marshall had to spell out and establish in a decisive precedent.
Although this pursuit of Marbury's logic can locate analytical foundations for judicial review, it does not make much of a dent in the history of judicial review or its implication that the authority for this power came from the judges themselves. One difficulty is that by relying on a case that postdates the Constitution, such analysis suggests that the judges still had to develop and give substance to the logic of judicial review. A deeper problem is that the study of Marbury's logic focuses on what is necessary for deciding cases and thus does not adequately explore Marbury's allusions to the traditional ideals of law and judicial duty. It is true that, in order to decide their cases, judges must expound the law. Yet while it is important to understand when a judge must decide a constitutional question, this does not resolve how he should do so or what has the obligation of law, and by compressing these profound questions into the reasoning about deciding cases, the scholarly treatment of Marbury's logic tends to omit much of the logical and historical depth. Marshall understood the importance of these more basic questions, and although he did not bother with detailed answers, he gave two fleeting hints. As to law, he asked, "[i]f an act of the legislature, repugnant to the constitution, is void …. does it constitute a rule as operative as if it was a law?" With respect to duty, he said that the court must decide which of the conflicting rules—the law or the constitution—governs a case, and he then explained, "[t]his is of the very essence of judicial duty." Marshall thus briefly alluded to the pair of ideas that occupy so much of this book, but because he could take them for granted, he made no effort to explain them. Not recognizing the depths of what Marshall simply assumed, scholars of judicial review miss the logical and historical foundations provided by the ideals of law and judicial duty, and they therefore end up concentrating on Marshall's more explicit but less fundamental point about deciding cases. The inquiry about Marbury's logic thus not only focuses on a case that postdates the Constitution but also largely bypasses the old, foundational ideals that would allow one to understand the degree to which Marshall was engaged in very traditional judicial reasoning. In both ways, rather than displace the suspicion that judicial review derives from the judges, the inquiry about Marbury's logic makes Marshall's opinion seem an act of intellectual prowess in which he and his brethren largely established their own power. . . .
Tomorrow: Part 3: Implications for Judicial Power.