When I read Philip Hamburger's Law & Judicial Duty, it occurs to me that in 50 years, most of our scholarship will be long forgotten, but this book will still be read.
In my fifth selection from the introduction of the book, Hamburger suggests his main argument. For the extensive evidence supporting these claims, I'm afraid that you will have to read the book:
Law and Judicial Duty
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.
The initial question concerns the obligation of law and especially constitutions. Long before Americans declared their independence, many English lawyers understood that the law made by the people, their "constitution," was of higher authority and obligation than other human law in their jurisdiction. Not merely the arrangement of government, this sort of constitution was the most fundamental part of the law of the land, and although many men questioned its application to Parliament, many others understood it to limit Parliament and thus to render any unconstitutional government act unlawful and void.
The second question regards judicial office and, in particular, judicial duty. Judges in America did not have to create for themselves a power over constitutional law, for already in England judges had a duty to decide in accord with the law of the land, including the constitution. The judges appreciated the functional benefits of this duty, such as its protection of liberty, but they understood it more basically to be part of their office, to which they were bound by their oaths. Judges therefore assumed they had no choice but to decide in accord with the law of the land. Accordingly, even in England they sometimes had to hold unconstitutional acts unlawful. Although judges faced obstacles in the law itself barring them from holding acts of Parliament unlawful, their duty to decide in accord with the law of the land was general, and thus where not barred by the obstacles relating to Parliament, their duty reached all types of government acts, regardless of whether the acts were executive, judicial, or legislative. As a result, both before and after Independence, judges were bound by their duty to hold unconstitutional American statutes unlawful.
Judicial duty was both more general and more mundane than what has come to be understood as judicial review, and it therefore had greater authority and more balanced implications. If there was a distinctive judicial power of review, it must have come from the judges themselves, and this has led to the conclusion that judicial review is of questionable authority. It has even led to the conclusion that judges, having created the power, can exercise it with either restraint or vigor, as seems to them required by different circumstances. Judicial duty, however, arose from the very office of a judge, and it thereby simultaneously strengthened and confined judicial decisions: It gave strength to judicial decisions about the constitutionality of government acts, and it confined the judges to making such decisions in the same way they made any other decisions—in accord with the law of the land.
Historically, it will be seen that the common law ideals of law and judicial duty developed not merely in reaction to local or transient considerations of policy, but more generally in response to underlying worries about the obligation of law and the role of judges, which in turn rested on deeper anxieties about human nature. It was widely assumed that human law existed within a hierarchy that reached from God down to man and that therefore even human law had a divinely derived obligation. Yet how human law acquired this binding force and how judges should decide about law were matters of profound dispute. Some theologians and academically minded lawyers had a high enough view of human potential that they suggested rulers and judges could partly transcend the rough, earthly texture of human law. Most common lawyers, however, pursued approaches less trusting of their rulers and judges and more grounded in the law of the land, and they thereby developed ideals of law and judicial duty that served the function of limiting government far more effectively than the high-minded ideals elaborated by their academically inclined contemporaries.
In the end, such ideals—whether academic or more narrowly legal—were responses to problems that might not be entirely susceptible of solutions. Men could use their ideals to rise above their worst tendencies, but they could never afford to forget that lurking below even the best of their ideals were problems as enduringly worrisome as men themselves. Their solutions therefore could never be perfect, and even if the common law solution avoided the dangers of the more academic approaches, this is not to say that it could rise above the nature of men.
More to come . . . .