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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 Hamburger’s magisterial new book, Law and Judicial Duty, will further cement his reputation as one of America’s leading legal historians. The book addresses the familiar subject of “judicial review”—the 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.

Hamburger’s 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 hierarchy—that 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 court’s authority to declare a law unconstitutional—giving effect to the higher law of the Constitution over the lower law of, say, a mere state or federal statute.

Indeed, Hamburger’s 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 generation’s original understanding of the common-law ideals of law and judicial duty. Thus the Supreme Court’s authority to declare laws unconstitutional is neither a judicial invention nor usurpation, as many scholars have contended, but an implicit part of the Constitution’s original design.

Hamburger understands that the traditional conception of law and judicial duty has ramifications for today’s 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 lawmaker’s intent and the legislative creation of law. More specifically, Hamburger shows the centrality of judicial independence to the common-law tradition—including the independence of judicial decision-making from the judge’s own political values. Obviously, the traditional judicial duty to decide a case in accord with a lawmaker’s intent is fundamentally different in character from, say, a judicial power to ascribe to a legal provision a meaning that reflects a judge’s personal political morality. Therefore theories of constitutional interpretation emphasizing the indeterminacy of the Constitution and the importance of a judge’s political views to the resolution of constitutional cases clash with the historical foundations on which the exercise of judicial review ultimately rests.

What’s less clear from Hamburger’s 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 ultimate—or even primary—interpreters of the Constitution. Hamburger’s 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 judge’s office in a way that, say, the legislative exposition of law is not a function of the legislator’s office. His analysis seems to support what is sometimes called “judicial supremacy”—the 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 nation’s 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 republic—“departmentalism,” as it is often called—held that all three branches of the national government share equal authority to interpret the Constitution. Departmentalists—whose ranks included statesmen of the caliber of Madison, Jefferson, Jackson, and Lincoln—recognized the judiciary’s authority to declare laws unconstitutional, but they did not believe that the judicial branch’s 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 doesn’t 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. Hamburger’s 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.

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