Law and Judicial Duty (review)

“The history of judicial review is one of America’s latter-day creation stories,” Philip Hamburger insists in this painstakingly intricate legal-historical excavation, recovery, and restoration (606). The creation myth holds that the power of judges to assess and void legislation for unconstitutionality was boldly invented—without clear authorization—by U.S. judges (locus classicus: John Marshall’s opinion in Marbury v. Madison [1803]). In Law and Judicial Duty, however, Hamburger argues that the focus on judicial review as a “power” held by judges is theoretically and historically misleading, since the practice is properly understood as only a small part of what really matters: the “duty” of the judge, as a function of his office, to declare government actions void as contrary to law. Hamburger’s big book is devoted almost entirely to parsing what many nonexperts will consider a small—and remarkably arcane—distinction between “a judicial power to hold statutes unconstitutional” and “a duty of judges to decide in accord with the law of the land” (2). Hamburger assembles almost seven hundred pages of evidence from English and early American legal history to demonstrate, again and again, this single point.

The practice was not expressly authorized because, in swearing an oath to do their duty, it was simply presumed—in the United States (pre- and post-independence), but also by the nation’s English progenitors—that judges were obligated to apply the law. Hamburger’s book documents “the frequency and unselfconscious ease with which judges [at all levels] handled constitutional law” (477), and considered themselves “obliged,” as matter of their routine duties, “to hold acts of governors and legislatures unconstitutional” (579).

Much of Law and Judicial Duty is devoted to demonstrating that there was a long-standing requirement in England that subordinate law—including not simply legislation (of which, the farther back one goes, the less there was), but customs, corporate bylaws, and so forth—be consistent with the (customary) constitution: that is, lawful. While oath-taking, duty-bound judges did void that which was unlawful outright, most often (and less dramatically) they simply declined to give it effect—perhaps, subtly, in cases of uncertainty, by “discerning,” “expounding,” or interpreting it in ways that were consistent with lawfulness. Since traditional histories of judicial review look only at cases where judges explicitly voided legislation (and not royal acts, corporate charters, actions taken by other judges, low-salience local legislation, and so forth), they systematically miss judicial behavior of precisely the same genus, effected in these other, less visible ways. The unaccountably disregarded peculiarities of the English constitutional system are also relevant. The review of Acts of Parliament could never entail judicial review in the American sense because, besides being a legislature, Parliament was simultaneously the realm’s highest court. As such, its decision to enact a statute was functionally akin to a judicial assessment that that statute was constitutionally lawful. Judges duty-bound to apply the common law—of which the ancient, customary constitution was a part—moreover, evaluated subordinate acts by the “golden and straight metwand” of law, and reason (139), but had no authority to second-guess the reasonableness of acts of the sovereign (Parliament). “[A]t least by the last half of the seventeenth century,” Hamburger explains, “what distinguished sovereign acts was not that they could escape judicial scrutiny, but rather simply that they stood beyond reconsideration for their conformity to reason and justice.” As such (Parliamentary) sovereignty was a barrier to reconsideration in light of reason and justice, not law (396–97).

Hamburger emphasizes that, by the terms of their oaths and offices, judges had considerable authority—but only within a highly circumscribed sphere. They were charged with applying the law pursuant to “independent judgment”—“an exercise of intellect or understanding free from any intrusion of will” (101). Only “when the judges expounded the law, including the constitution, in the course of doing their duty . . . could [they] speak with the authority of their office.” The principle of judicial independence, by these lights, implicates not external considerations of the...