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Philip Hamburger
Copyright Date: 2008
Published by: Harvard University Press
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  • Book Info
    Book Description:

    Philip Hamburger’s Law and Judicial Duty traces the early history of what is today called "judicial review." The book sheds new light on a host of misunderstood problems, including intent, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent. The book is essential reading for anyone concerned about the proper role of the judiciary.

    eISBN: 978-0-674-03819-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
    (pp. xi-xviii)
  4. Introduction
    (pp. 1-18)

    Almost every day a judge in the United States holds a statute unconstitutional. This is “judicial review,” and it often seems the central feature of American constitutional law.

    American constitutions, however, are almost silent about judicial review. Even today, they scarcely mention the power of judges to decide constitutional questions. The power of judges to hold statutes unlawful and void is therefore a puzzle. Where does this power come from? And what is its character and scope?

    The familiar answer to these questions comes in the form of a history of “judicial review.” According to the conventional version of this...

  5. I Law

    • [I Introduction]
      (pp. 19-20)

      What was the obligation of the law of the land? And was a constitution made by the people a part of this law? In a book arguing that the judges had a duty to decide in accord with the law of the land, it is necessary to begin with these basic questions about the law.

      The depth of the problem of legal obligation tends to get lost in the history of judicial review, because from the vantage point of those who seek the origins of judicial review, the legal obligation of constitutions often seems to have been merely a choice...

    • 1 The Hierarchy of Law
      (pp. 21-30)

      To understand how one law could render another lawless and void, one must begin with the hierarchy of law that once seemed to reach from heaven down to earth. The medieval hierarchy of law is generally familiar, but it is important to examine it more precisely as a hierarchy of legal obligation and to ask about its reception among English lawyers. From within the hierarchy, it seemed that the eternal reason of the universe was evident in human law, thus giving it legal obligation, and that the absence of such reason in other human laws left them devoid of legal...

    • 2 The Shift toward Authority
      (pp. 31-69)

      A profound change gradually occurred in the dominant conception of the hierarchy of law. Whereas the obligation of law once rested on a law’s participation in a divinely ordained higher reason, Europeans and especially Englishmen increasingly became skeptical as to whether mere mortals could adequately discern, let alone agree about, what was reasonable, and they thus came to view the obligation of law as resting on the authority of the lawmaker, whose will was binding as law. This was, for many men, little more than a slight shift in weight—as if from one leg to another—but it thoroughly...

    • 3 Constitutions
      (pp. 70-100)

      In response to their fears about the authority and will of rulers, Europeans and especially the English developed their ideas about constitutions. When rulers claimed an expansive lawmaking authority, let alone an authority above their law, many other men responded with claims about a higher human authority—a lawmaking authority diffused among the people. From this perspective, a constitution willed by the people was law, and being of the highest authority among the laws of the land, it was of the highest obligation.

      According to the history of judicial review, a constitution was not considered binding law until the very...

  6. II Judicial Duty

    • [II Introduction]
      (pp. 101-102)

      Having considered thus far the obligation of law, including constitutions, this book can now examine the duty of judges. The duty of common law judges was to decide in accord with the law of the land, and because the constitution was the highest part of this law, the judges in the course of doing their duty had to hold unconstitutional customs and acts unlawful and void. Today, it is difficult to talk about such matters without using the phrase “judicial review.” Once, however, not all that long ago, the judges typically conceived of what they did rather differently—in terms...

    • 4 Judicial Duty
      (pp. 103-147)

      A common law judge had a duty to decide in accord with the law of the land. Any judge generally had to exercise judgment, but a common law judge more specifically had to exercise his judgment in accord with the law of the realm, and this distinctive duty of common law judges was of profound consequence for English law, including, it will eventually be seen, the enforcement of the English constitution.

      Although the common law ideal of judicial duty was taken for granted by most common lawyers, it was continually under pressure from Englishmen who were attracted to competing, academic...

    • 5 Independent Judgment
      (pp. 148-178)

      In doing their duty, judges had to exercise independent judgment. Although in England a judge’s office specifically required him to decide in accord with the law of the land, judicial office more generally required the exercise of judgment, and this by its nature meant judgment independent of will.

      Judicial independence tends to be understood as legal protection from external threats—in England, parliamentary protection from royal interference—and it is therefore easy to assume that independence is centrally a matter of legal prohibitions protecting the power of one part of government from the power of another. The judges, however, had...

    • 6 Judicial Decisions
      (pp. 179-217)

      Guided by their duty, and sustained by their office of independent judgment, the judges regularly held customs and government acts unlawful. They even, it will be seen, sometimes held government acts unconstitutional. It may come as a surprise that English judges held government acts unconstitutional or otherwise unlawful, but once it becomes apparent that this was an ordinary part of their duty, much that seems extraordinary in later, American law will begin to fall into place.

      The English decisions about the lawfulness of customs and government acts scarcely make an appearance in the history of judicial review because decisions that...

    • 7 Authority to Expound Law
      (pp. 218-234)

      The exposition of law, unlike the making of it, was a matter of judgment, and thus when, in the course of doing their duty, the judges had to explain their decisions, their expositions of law, including the constitution, enjoyed the authority of their office. It is tempting to discuss such matters in familiar terms of “precedent” or “stare decisis,” without much attention to the underlying issue of judicial authority, but even if such terms now have a reassuring familiarity, it is not obvious why judicial precedent has the effect ofstare decisisand why it nonetheless sometimes does not. Such...

  7. III Judicial Duty as to Legislative Acts

    • [III Introduction]
      (pp. 235-236)

      It has been seen in Part I that the English constitution was part of the law of the land, and in Part II that the judges had a duty to decide in accord with this law. Part III therefore must now examine the application of this duty to legislation.

      Contrary to what may be expected, it was well understood that judges generally could hold legislation unlawful, but at the same time there were legal and political obstacles to decisions about some significant types of legislation. On the one hand, as will be seen in Chapter Eight, the law itself precluded...

    • 8 No Appeal from Parliament
      (pp. 237-254)

      Although judges could hold most types of legislation unlawful, the common law barred judges from reaching this conclusion about acts of Parliament. It has been seen that the judges could hold local legislation and even royal acts unlawful. Acts of Parliament, however, were another matter. In a realm governed by a customary constitution, the court of the realm, Parliament, could declare the constitution; as the highest court, moreover, it stood above appeal; and in both ways the common law itself precluded judicial decisions holding acts of Parliament unlawful.

      These legal obstacles to holding acts of Parliament unlawful left an opportunity...

    • 9 Colonial Departures
      (pp. 255-280)

      Judges often departed from their duty when it required them to hold colonial legislation unlawful. Whereas the common law barred judges from holding acts of Parliament unlawful, there was no such obstacle to their reaching such a conclusion about the act of a colonial legislature. The judges who most frequently had to examine colonial statutes, however, were not the regular judges who sat in Westminster Hall, but rather were Privy Councillors and colonial judges, who had specialized jurisdictions and who were politically accountable. As might be expected, they were sensitive to imperial responsibilities on one side of the Atlantic and...

  8. IV Law and Judicial Duty in America

    • 10 Law and Judicial Duty
      (pp. 283-326)

      As in England, so in each American state, a constitution made with the authority of the people was part of the law of the land, and the judges had a duty to decide in accord with the law of the land, including the constitution. Much was different after 1776, but these basics and what they required of judges remained largely the same.

      In the 1770s and 1780s, when Americans contemplated and then engaged in revolution, it continued to be a familiar assumption that constitutions made with the authority of the people had the obligation of law, and few Americans spoke...

    • 11 Reason and Justice within the Law
      (pp. 327-357)

      Americans, no less than the English, were sometimes painfully aware that judicial duty and the law of the land might conflict with aspirations for reason and justice. The rigor of a hierarchy based on the obligation of reason and justice had given way to the rigor of a hierarchy that established human authority and the obligation of human will, and thus just as Aquinas and the men who followed him had to accommodate authority within their conception of reason and justice, so Americans now had to pursue reason and justice within their account of authority. This could be a frustrating...

    • 12 The Range of Constitutional Decisions and the Character of Judicial Duty
      (pp. 358-392)

      A concept can be studied not only abstractly from above but also more concretely from below, and in this manner the practical applications of judicial duty disclose the character of the ideal. It will be seen in particular that judges held government acts unconstitutional in all sorts of decisions, and this range says much about the breadth, strength, and familiarity of the duty to decide in accord with the law of the land.

      It is often imagined that judicial review was primarily a power over legislation, and from this perspective, the array of relevant decisions seems very narrow, for if...

  9. V Judicial Duty in America as to Legislative Acts

    • [V Introduction]
      (pp. 393-394)

      It has been seen that the ideals of law and judicial duty applied to all sorts of government acts in America—legislation being the one sort not yet considered. It is now therefore necessary in Part V to examine whether American judges were required by their duty to hold unconstitutional state statutes unlawful.

      Chapter Thirteen observes that the English legal obstacles to holding acts of Parliament unlawful had never been applicable to American legislation and that American judges regularly (although of course imperfectly) did their duty as to unconstitutional state statutes. Decisions holding state statutes unconstitutional stirred up controversy, especially...

    • 13 Holding Legislative Acts Unconstitutional
      (pp. 395-461)

      Being a general ideal, judicial duty reached not only executive and judicial acts but also legislative acts. One might assume that it was a momentous step for judges to hold state legislation unlawful and void, but it did not appear so substantial in the context of judicial duty. When considered within this duty—a duty so broad that it was binding on all types of judges in all sorts of decisions about all kinds of acts—the question was not whether the judges should experiment in developing a new sort of power for themselves, but rather why legislative acts should...

    • 14 A Lopsided Debate
      (pp. 462-475)

      Judicial decisions holding statutes unconstitutional often provoked local controversies, and these disputes are revealing. Rather than relatively even struggles between defenders and critics of the decisions, the controversies tended to be lopsided against the critics, who had to fight against widely assumed ideals.

      This imbalance and its significance can be illustrated by the dispute in North Carolina aboutBayard v. Singleton. This was the case, described in the previous chapter, in which the judges of the North Carolina Superior Court delayed a decision about a state statute out of respect for the legislature. Eventually in 1787 the judges held the...

    • 15 Not Holding Legislative Acts Unconstitutional
      (pp. 476-504)

      Some cases didnothold statutes unconstitutional but nonetheless are suggestive. Such cases could not have been precedents for judicial review, and they may therefore initially seem—like the space surrounding a sculpture—almost the absence of that which deserves attention. These cases, however, were instances in which the judges did their duty, and even though the judges in these cases did not actually hold any statute unconstitutional, they revealed the comfort with which they usually decided constitutional questions relating to legislation.

      Incidentally, some of the circumstances in which judges did not hold statutes unconstitutional offer further hints of the...

  10. VI Independence and Authority in America

    • 16 Independence
      (pp. 507-535)

      In America even more than England, judgment required independence from will. Judicial independence is sometimes taken to be a matter of power, which the judiciary exercises, as a branch of government, in response to the power of another branch, usually the legislature; and from this point of view, judicial independence almost gets reduced to an exertion of judicial will in opposition to legislative will. Yet far from considering their decisions in relation to legislative power an exercise of power or will, American judges apparently understood themselves to be acting on ideals of judgment. Their ideal of their office was one...

    • 17 Authority
      (pp. 536-574)

      Judicial office not only required independent judgment but also gave the judges authority to expound the law. In constitutional matters, this authority to expound law is often reduced to a question of power, and from this balance-of-power perspective (usually borrowed from the political theory of James Madison) it is sometimes suggested that although the judiciary has the final judgment in cases, the other branches of government can equally claim a final or absolute power in the decisions arising from their functions. Law, however, was not political theory, and the exposition of law by judges in resolving their cases had not...

  11. VII Inexplicit Ideals

    • 18 The Inexplicitness of Constitutions
      (pp. 577-586)

      In an era in which so little is left inexplicit, commentators have had difficulty understanding why their predecessors did not generally assert in their constitutions that these were legally binding laws and that judges had a power to enforce them. If constitutions had really authorized judicial review, it seems puzzling that they never made any general declaration to this effect. The ideals of law and judicial duty, however, were presuppositionsaboutlaw rather than doctrinesoflaw, and Americans could therefore usually take these ideals for granted in thinking about their constitutions and judges.¹

      The ideals of law and judicial...

    • 19 Federal Clarifications
      (pp. 587-605)

      What could ordinarily remain beyond words in a single system of law might have to become explicit in a federal system. The common law ideals were familiar enough and usually required no explanation, but the Articles of Confederation raised questions about their application in America’s federal system, and it therefore increasingly seemed necessary to have these uncertainties resolved in a new U.S. Constitution.

      In a single state there was typically no reason to explain what was the law of the land or what sort of law was of superior obligation to another, but in the government established by the Articles...

  12. Conclusion
    (pp. 606-621)

    The history of judicial review is one of America’s latter-day creation stories. According to the usual version of this story, what the people of America did not have the foresight to authorize in their constitutions, the judges subsequently established through their cases. This history of judicial selfauthorization is only plausible, however, in the absence of much evidence from the 1780s or earlier, and by now it should be clear that there is ample evidence, even if not precisely of judicial review. The evidence reveals that judges could take the ideals of law and judicial duty for granted and that with...

  13. Appendix I: Bonham’s Case
    (pp. 622-630)
  14. Appendix II: The Institutio Legalis: Law and Justice in New Jersey
    (pp. 631-642)
  15. Appendix III: Common Law Adjacent to Statutes: Religious Taxes in Massachusetts
    (pp. 643-654)
  16. Chronological Table of State Decisions
    (pp. 655-658)
  17. Index
    (pp. 659-686)