Later On

A blog written for those whose interests more or less match mine.

History of the judicial role

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Very interesting review by Judge Richard Posner of the book Law and Judicial Duty, by Philip Hamburger. The review begins:

The most momentous, controversial, even frightening power of the federal judiciary — the one in greatest tension with democracy and federalism — is the power to invalidate federal and state statutes that in the opinion of the judges are inconsistent with the federal Constitution. This power, which lawyers call “judicial review,” has often been regarded as the invention of a handful of free-wheeling late eighteenth- and early nineteenth-century American lawyers, notably Chief Justice John Marshall, whose opinion in Marbury v. Madison in 1803 is often thought to have created ex nihilo the “American doctrine of judicial review.” The distinguished constitutional scholar Alexander Bickel called the power of judicial review “Marshall’s achievement.”

For the Constitution does not say that federal courts can invalidate a statute. Article VI, the “supremacy clause,” describes the Constitution, along with federal statutes and treaties made under federal authority, as “the supreme Law of the Land,” and states that “the Judges in every State shall be bound thereby.” But it says nothing about federal judges being empowered to invalidate statutes, whether federal or state. (“Judges in every State” could not include Supreme Court justices, since the Constitution authorized and envisaged the creation of a district — it became the District of Columbia — that would not be part of any state.) In describing federal statutes and treaties as part of the “law of the land,” Article VI could be understood simply to be commanding state judges to acknowledge the supremacy of federal law. Article III confers the “judicial Power of the United States” on the Supreme Court and such lower courts as Congress decides to create, and the power expressly includes the power to decide cases arising under the Constitution, as well as under other federal laws and under treaties — but at most this only implies a power to adjudicate constitutional challenges to federal statutes. “Any explicit grant of this power,” in Robert Jackson’s words, “was omitted…[the power] was left to lurk in an inference.”

John Marshall — commended by Holmes as the “loose constructionist” judge who “start[ed] the working of the Constitution” — argued disarmingly in Marbury that since the Constitution is law, and indeed supreme law, an inconsistent statute, being inferior law, must give way. In his words: “If the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.” He chose to take this approach, in the account that I am summarizing, not under the compulsion of the constitutional text, but because he was a Federalist, and so he wanted the Supreme Court to be able to check the populist impulses of elected legislatures. Marshall thus initiated the “struggle for judicial supremacy” (as Justice Jackson later described it, in a book of that title from which I quoted earlier) that eventually resulted in a secure — an unquestioned — power of judicial review, however tenuous its constitutional pedigree.

The main purpose of Philip Hamburger’s book is to counter this account of the rise of judicial review by tracing the history of the practice all the way back to the Middle Ages and ending with the Constitution of 1787. Hamburger is an accomplished and assiduous legal historian, and his book is a work of imposing scholarship. But he is not just an antiquarian. The idea that he has set out to overthrow — that judicial review was invented in order to enhance the power of the Supreme Court — has implications that disturb him. “If judges established their power of review on their own authority,” Hamburger remarks, “they would appear to have control over the character and exercise of the power, and this would seem to leave them with an extraordinary discretion over the liberty of their fellow Americans.” Hamburger believes deeply in judicial modesty. He argues that what has come to be called judicial review was intended to exemplify rather than to reject judicial modesty, which is why the framers of the Constitution took the power for granted, and so felt no need to talk it up in the constitutional text.

Hamburger’s argument pivots on a few key terms. One is …

Continue reading.

Written by Leisureguy

15 January 2009 at 9:21 am

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