Working Paper No. 09-55:
Judicial Review and Judicial Duty: The Original Understanding

Author(s):

Nelson Lund

Date Posted: November 2009

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Abstract:

What we call “judicial review” was not established in Marbury v. Madison, or by American courts. It had existed in English and then American law for centuries, not as some kind of peculiar power but rather as a corollary of the judicial duty to decide cases according to the law of the land. While that duty sometimes required judicial courage in the face of political threats, this was not its most difficult or pervasive demand. The real challenge was the requirement that judges purge their decision-making of the influence of their own wills, which required them to set aside their own views about natural law, God’s will, sound policy, and even justice itself.

Phillip Hamburger’s Law and Judicial Duty advances and defends these claims with subtlety and detailed evidence. He carries his historical study up through the end of the eighteenth century, and thus has little to say about subsequent changes in the understanding of judicial review and judicial duty. But there are obvious implications for our contemporary debates about the proper role of judges and about the distinction between law and politics. This review touches on those debates, and suggests that a broadened political role for the federal judiciary may have been more clearly foreseeable than the leading proponents of our Constitution thought it wise to acknowledge during the ratification debates.