Thursday, January 15, 2009
Richard Posner's review of Law and Judicial Duty by Philip Hamburger (Harvard U Press, 2008), appears in The New Republic, available online here. Posner begins by calling judicial review the "most momentous, controversial, even frightening power of the federal judiciary--the one in greatest tension with democracy and federalism."
Law and Judicial Duty may seem at least to have answered the question why the Constitution did not create a power of judicial review explicitly. I am not entirely convinced. Remember that Article VI commands the state judges to bow to the "supreme law of the land." Yet according to Hamburger, as we know, the duty to apply the "law of the land" rests on every judge, and therefore on state judges. Since this is a defining aspect of the office of the judge, why did it have to be made explicit, but not the duty of determining the constitutionality of statutes? Hamburger goes so far as to argue, rather wildly as it seems to me, that because "a common law judge had to decide in accord with the law of the land, he did so with a divine obligation and in imitation of divine judgment, and he thus had to reach far above earthly things in his pursuit of terrestrial law," and therefore "were a human law to restate the duty or to give it human obligation, this law [the Constitution]...might subvert the understanding that judges were responsible to a higher authority." If this is right, it was an insult to state judges to tell them in Article VI that they had to conform to federal law; they knew it already.In any event, the power of judicial review that Hamburger considers implicit in the Constitution is not the power that the federal courts have actually been exercising.
And Posner has this to say about the "judicial modesty" that Hamburger invokes, in light of Heller, which Posner, among others, has been criticizing:
After all, it was the self-proclaimed "modest" judges, in approximately Hamburger's sense -- the apostles of "textualism" and "original meaning" -- who recently gave us the decision in the Heller case invalidating the D.C. gun-control ordinance on the basis of the Second Amendment to the Constitution. A recent article by J. Harvie Wilkinson, a distinguished conservative federal judge, describes Heller, which has cast a dark pall over gun control throughout the entire United States, as the second coming of Roe v. Wade. Whatever Heller stands for, it is not modesty.
Still, Posner states the book adds a great deal to understanding judicial history. Sounds as if it is a good addition for the libraries of ConLawProfs.