A quarterly magazine of urban affairs, published by the Manhattan Institute, edited by Brian C. Anderson.
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The Power and the Duty
A history of Anglo-American judging recovers the true origins of judicial review.
27 January 2009
Law and Judicial Duty, by Philip Hamburger (Harvard University Press, 704 pp., $49.95)
Philip Hamburgers magisterial new book, Law and Judicial Duty, will further cement his reputation as one of Americas leading legal historians. The book addresses the familiar subject of judicial reviewthe power of courts to declare laws unconstitutional. But Hamburger, a distinguished professor of law at Columbia, views this practice through a new and broader historical lens: the traditional Anglo-American common-law understanding of the concepts of law and the proper role of the judiciary.
Hamburgers central thesis is both simple and striking. In the Anglo-American legal tradition reaching back to the 1600s (and even before), the judicial office carried with it the duty to decide cases in accord with the law of the land, an imperative that required judges to give effect to higher law over lower law in a legal hierarchythat is, declaring the lower law invalid if it conflicted with the higher. Thus at the time of the American founding, Hamburger maintains, English and American judges already accepted a courts authority to declare a law unconstitutionalgiving effect to the higher law of the Constitution over the lower law of, say, a mere state or federal statute.
Indeed, Hamburgers research clearly establishes that what we now think of as judicial review was not novel in 1803, when the Supreme Court in Marbury v. Madison first declared an act of Congress unconstitutional, or in 1787, when the U.S. Constitution was written, or even in 1776, when the United States declared independence from Great Britain; instead, it was part of the founding generations original understanding of the common-law ideals of law and judicial duty. Thus the Supreme Courts authority to declare laws unconstitutional is neither a judicial invention nor usurpation, as many scholars have contended, but an implicit part of the Constitutions original design.
Hamburger understands that the traditional conception of law and judicial duty has ramifications for todays constitutional debates. He demonstrates that the judicial duty to decide cases in accord with the law of the land is premised on an understanding of legal interpretation that sharply distinguishes between the judicial application of law to effectuate a lawmakers intent and the legislative creation of law. More specifically, Hamburger shows the centrality of judicial independence to the common-law traditionincluding the independence of judicial decision-making from the judges own political values. Obviously, the traditional judicial duty to decide a case in accord with a lawmakers intent is fundamentally different in character from, say, a judicial power to ascribe to a legal provision a meaning that reflects a judges personal political morality. Therefore theories of constitutional interpretation emphasizing the indeterminacy of the Constitution and the importance of a judges political views to the resolution of constitutional cases clash with the historical foundations on which the exercise of judicial review ultimately rests.
Whats less clear from Hamburgers book is whether the traditional concepts of law and judicial duty can be extended to support the view that the founding generation understood courts to be the ultimateor even primaryinterpreters of the Constitution. Hamburgers analysis of judicial authority suggests that perhaps this is the case; he emphasizes courts traditional authority not simply to issue judgments in particular cases, but also to expound the law in support of those judgments. And Hamburger is right that the judicial exposition or interpretation of law is necessarily a function of the judges office in a way that, say, the legislative exposition of law is not a function of the legislators office. His analysis seems to support what is sometimes called judicial supremacythe view that courts are the final arbiters of constitutional meaning. Still, this broader understanding of judicial authority conflicts with a substantial record of actual constitutional practice at the founding and in the early republic. In the nations early years, non-judicial institutions of government asserted interpretive authority inconsistent with judicial supremacy, and the judiciary itself claimed only comparatively modest authority in constitutional interpretation. One might expect a sound claim about the historical understanding of the proper judicial role to fit more neatly the actual historical practices of judges and other actors at the founding.
For instance, a common view in the early republicdepartmentalism, as it is often calledheld that all three branches of the national government share equal authority to interpret the Constitution. Departmentalistswhose ranks included statesmen of the caliber of Madison, Jefferson, Jackson, and Lincolnrecognized the judiciarys authority to declare laws unconstitutional, but they did not believe that the judicial branchs interpretations of the Constitution were necessarily binding on the political branches. That the founding generation accepted a traditional judicial duty to decide cases in accord with the law of the Constitution doesnt necessarily establish that they intended the judicial branch to be the supreme interpreter of the Constitution, or even the main line of defense against constitutional violations. Hamburgers historical claims about the traditions of law and judicial duty are therefore persuasive if understood narrowly; if applied more broadly, they appear problematic.
Law and Judicial Duty is sweeping in its breadth and depth of scholarship, and profound in its insights into the Anglo-American judicial tradition. It will shape the academic debate over judicial review for years to come. Finally, Hamburger concludes his book with a timely admonition: Men will ever be discontent with law and ambitious for power, and judges will ever be vain enough to aspire to a justice above human law, but it is therefore all the more important for judges to recall the common ideals of law and judicial duty.
Jack Wade Nowlin, an associate professor of law at the University of Mississippi School of Law, is currently a visiting fellow at the Witherspoon Institute in Princeton, New Jersey.