Customer Reviews

Law and Judicial Duty

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Philip Hamburger, a prize-winning legal historian at Columbia University, has written the best law book I have read this year: Law and Judicial Duty (Harvard Press). At 700 pages, it is a thorough examination of the history of judicial duty to apply superior law, a duty that has as one of its offshoots the courts' obligation to strike down illegal executive, legislative, and judicial actions.

After making an exceedingly impressive study of early English and American authorities, Hamburger argues:

"The evidence reveals the importance of the common law ideals of law and judicial duty. It shows that these two ideals, taken together, required judges to hold unconstitutional acts unlawful. In pursuing the evidence, therefore, this book cannot focus on a distinct power to hold acts unconstitutional, but rather must more generally study the nature of law and of judicial office as understood by common lawyers."

Hamburger first suggests that "judicial review" is a modern concept that tends to obscure the nature of the historical evidence and leads to what I would call the "heroic" view of Marbury v. Madison. The power of declaring actions unconstitutional was not developed by the Federalists (as some prominent historians have claimed), but was well established by the 1780s.

Hamburger suggests that misunderstandings of the history of judicial review tend to lead to a more expansive view of judicial power. If American judges in the early Republic established their own power of review, "this would seem to leave them with an extraordinary discretion over the liberty of their fellow Americans." Yet they didn't, since the power was well established before the Constitution was written.

In the 18th century, legislatures were supposed to exercise "will," yet judges were not. Judges were not thought to be free to choose their own "judicial philosophy." They were supposed to follow the law, including following a superior law that required them to strike down an inferior law. This was a power that trial courts, as well was appellate courts, had and exercised.

A tour de force from America's best legal historian.

James Lindgren
Professor of Law
Northwestern University

I have not finished this book, but only read the first chapter and attended a talk by Prof. Hamburger about his thesis in the book. So far, it more than lives up to Prof. Lindgren's review of it above and the blurbs on the cover. Once you understand what the author is saying, especially if you suffered through the debates about judicial review in the 1980's and after, you can only wish this book had been written long ago. PH writes in a smooth but lively, non-confrontational style, but what he has to say, at least if it becomes generally accepted or widely influential, has the promise to displace great mountains of bad thinking that have accumulated around the most obfuscated branch of government -- the judiciary. It is also bound to be fascinating to anyone interested in the history of law as it relates to constitutionalism and political theory. It would make a great first book to read on this subject as well for the law student or lawyer who wants to be a serious student of judicial power and its history.
Tom Smith
Prof. of Law
USD Law School

I will start with the flaws. Professor Hamburger doesn't seem to understand why judicial review of laws and constitution bothers its opponents so much. It is not because the judges review, which is fine, but then the enforcement by the executive department makes their opinion de facto if not de jure laws.

On p. 578-9, Hamburger refers to "an office [judicial}that, like men themselves, seem to have been created on a divine model and that required a specialized, almost divine exercise of one faculty of the soul--the faculty of reason or understanding--which had to be employed in judgment uncorrupted by the faculty of the will." I wonder what his agnostic/atheist readers think of that.

Generously, Hamburger admits that Judge Hale of England stated that Christianity is part and parcel of the law of England, that Judge Coke, Francis Bacon and Thomas Jefferson had distaste for judicial independence.

Hamburger states: p. 579 that "of course, such conclusions often provoked populist exasperation." This is a typical liberal tactic, to call conservative disagreement with the left's opinion as only emotional, rather than being just as based on reason, thought, study as their own. That is called condescension.

In the end, the question is, who guard the guardians, these soi disant Platonic philosopher-kings?