Law and Judicial Duty

By Philip Hamburger

{Harvard University Press: 2008}

Winter 2009

Law and Judicial Duty, Columbia Law School Professor Philip Hamburger’s latest book, offers a penetrating look at the history of judicial review. The authority of judges to declare statutes unconstitutional is traditionally thought to have developed from the 1780s through the time of the Supreme Court case of Marbury v. Madison in 1803. According to Hamburger, however, that history is largely an illusion.

In his book, Hamburger challenges the view that judges have a distinct power of review to hold statutes unconstitutional. He argues that such authority has almost always belonged with judges, not as a distinct power but as an aspect of their ancient office or duty to decide in accord with the law of the land.

Part of the overriding faith in the reported origins of judicial review, Hamburger suggests, is due to the supposed lack of evidence that it existed prior to the 1780s. Another factor is the tendency to ignore the evidence from English, state, and lower court decisions. Hamburger argues that although there is no evidence of a distinct power of judicial review, there is plentiful evidence of the judges’ duty to decide in accord with the law of the land, including any constitution. “A simple shift in focus from judicial review to judicial duty is all that is necessary to bring the evidence into view,” Hamburger writes in the book.

In debunking the notion of a distinct power of judicial review, Hamburger reveals the importance of the common law ideals of law and judicial duty, which together require judges to hold unconstitutional acts illegal. Judicial review is not a distinct power, he asserts, but simply part of a judge’s job.

Law and Judicial Duty is legal history on a grand scale,” says R. Kent Newmyer, author of John Marshall & the Heroic Age of the Supreme Court. “The book will reshape the scholarly debate about the origins and nature of judicial review.”