Law and Judicial DutyPhilip Hamburger’s Law and Judicial Duty traces the early history of what is today called “judicial review.” Working from previously unexplored evidence, Hamburger questions the very concept of judicial review. Although decisions holding statutes unconstitutional are these days considered instances of a distinct judicial power of review, Hamburger shows that they were once understood merely as instances of a broader judicial duty. The book’s focus on judicial duty overturns the familiar debate about judicial power. The book is therefore essential reading for anyone concerned about the proper role of the judiciary. Hamburger lays the foundation for his argument by explaining the common law ideals of law and judicial duty. He shows that the law of the land was understood to rest on the authority of the lawmaker and that what could not be discerned within the law of the land was not considered legally binding. He then shows that judges had a duty to decide in accord with the law of the land. These two ideals—law and judicial duty—together established and limited what judges could do. By reviving an understanding of these common law ideals, Law and Judicial Duty calls into question the modern assumption that judicial review is a power within the judges’ control. Indeed, the book shows that what is currently considered a distinct power of review was once understood as a matter of duty—the duty of judges to decide in accord with the law of the land. The book thereby challenges the very notion of judicial review. It shows that judges had authority to hold government acts unconstitutional, but that they enjoyed this power only to the extent it was required by their duty.In laying out the common law ideals, and in explaining judicial review as an aspect of judicial duty, Law and Judicial Duty reveals a very different paradigm of law and of judging than prevails today. The book, moreover, sheds new light on a host of misunderstood problems, including intent, manifest contradiction, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent. |
Contents
Introduction | 1 |
LAW | 19 |
The Hierarchy of Law | 21 |
The Shift toward Authority | 31 |
Constitutions | 70 |
JUDICIAL DUTY | 101 |
Judicial Duty | 103 |
Independent Judgment | 148 |
JUDICIAL DUTY IN AMERICA AS TO LEGISLATIVE ACTS | 393 |
Holding Legislative Acts Unconstitutional | 395 |
A Lopsided Debate | 462 |
Not Holding Legislative Acts Unconstitutional | 476 |
INDEPENDENCE AND AUTHORITY IN AMERICA | 505 |
Independence | 507 |
Authority | 536 |
INEXPLICIT IDEALS | 575 |
Judicial Decisions | 179 |
Authority to Expound Law | 218 |
JUDICIAL DUTY AS TO LEGISLATIVE ACTS | 235 |
No Appeal from Parliament | 237 |
Colonial Departures | 255 |
LAW AND JUDICIAL DUTY IN AMERICA | 281 |
Law and Judicial Duty | 283 |
Reason and Justice within the Law | 327 |
The Range of Constitutional Decisions and the Character of Judicial Duty | 358 |
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Common terms and phrases
acts of Parliament American argued argument Assembly bill Bonham's Chief Justice claims Coke colonial common law common law ideals common lawyers conscience contrary Convention County Court County Inferior Court Court of Appeals Crown custom decide in accord decisions declared Edmund Randolph enacted English law equitable interpretation equity executive exercise explained Folder Governor Hale History hold House human law Ibid ideals of law independence intent James Iredell John judges judgment judicial duty judicial office judicial power judicial review Judiciary jurisdiction jury king king's land law and judicial legal obligation legislature Letter liberty London Lord Massachusetts ment natural law North Carolina oath observed opinion Papers Perquimans County political prerogative Privy Council question Randolph reason Records Reports resolution Richard Dobbs Spaight Rockingham County Selden Society Society Superior Court Supreme Court t]he Thomas tion trial U.S. Constitution understood University Press unlawful Virginia void William William Cushing William Plumer writ