Lund on Judicial Review and Judicial Duty.

Professor Nelson Lund (one of my favorites from GMU) posted to SSRN his forthcoming article in Constitutional Commentaries, titled, Judicial Review and Judicial Duty: The Original Understanding. In this article he critiques Phillip Hamburger’s Law and Judicial Duty. (H/T Legal Theory Blog)

From the 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.

This paragraph really jumped out at me:

Nevertheless, Hamburger argues that the central achievement of English judges was the development of an intellectual and moral discipline through which fallible human beings could resist these temptations, and strive with considerable success to purge judicial decisions of the influence of individual will.

None of us could think they always succeeded, and neither did they. But however often they may have failed, due to human weakness, there was no recognized exception from this judicial
duty, even in what Obama called “those 5 percent of cases that
are truly difficult.” Nor were these judges unaware of theories resembling Obama’s. At least as early as the fourteenth century,
the common law approach to judicial duty faced a fundamental
challenge from academically minded lawyers (especially those
influenced by continental jurisprudence) who believed that
judges had an obligation to follow natural or divine law when it
conflicted with human law.
Without denying that natural and divine law had a higher authority than any human law, and without denying that English law was undoubtedly imperfect in many ways, English judges strongly resisted the conclusion that they ever had a right or duty to go against the law of the land while exercising their judicial office. Similarly, these judges denied that other external sources of law—such as civil, ecclesiastical, or international law,  and even treaties —were obligatory in English courts unless and until they were incorporated in the law of the land (as had been done in some areas, such as maritime law).

So is it possible for Judges to put aside their personal will to objectively, and formalistically apply the law? Did English Judges figure this out? Very interesting.

It is a short read. Definitely worth the time. Professor Lund is a scholar extraordinaire, and I deeply respect his work, even if I do not always agree.

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Primus on Constitutional Expectations

Very interesting article. SSRN (H/T Legal Theory Blog)

Professor Richard Primus of Michigan considers BHO and JGR’s flubber of the Constitutional Oath as a means to justify why departures from the text of the Constitution are permitted, and thus why the District of Columbia should be entitled to representation in Congress.


And from the paper:

    Constitutional expectations are intuitions about how the system is supposed to work. They arise from a combination of experience, socialization, and principle. Obviously, Americans do not all share a single, precisely defined set of expectations. Indeed, conflicts among rival sets of expectations help to account for many disagreements about constitutional law. Over a relatively broad domain, however, informed Americans share expectations about the rules of government. Those expectations are often closely related to the constitutional text, but the text does not always capture them precisely. On the contrary, our shared expectations go well beyond the strict textual requirements of the Constitution.


    The argument that the Act is unconstitutional has a reasonable basis. Article I, Section 2 says that the House of Representatives “shall be composed of Members chosen every year by the people of the several States.”29 The District of Columbia is not a state. Accordingly, the constitutional objection runs, admitting D.C. to the House would ignore the written requirements of Section 2. And that cannot possibly be acceptable.30 Yet this argument is not as tight as it seems, because our system for electing Members of Congress already—and uncontroversially—deviates from Section 2 on a regular basis. If we were more aware of those deviations, the argument that Section 2 requires excluding D.C. might have less weight. But like the practice of inserting the President’s name in the inaugural oath, our accustomed departures from the text of Section 2 have become well integrated into our constitutional expectations. We tend not to notice them.


    Suppose, however, that constitutional expectations were to shift on the issue of representation for D.C., just as they earlier shifted on the question of whether the Constitution requires the same racial equality regime in the District that it requires everywhere else. Suppose, in other words, that large majorities of American officials came to believe that our basic constitutional values demand letting the residents of Washington D.C. vote and be represented. A different set of textual readings would then seem natural. To be sure, the new received wisdom in American law would not necessarily be the one that I have suggested about the meaning of “composed.” Perhaps a different textual reconciliation would emerge. Or perhaps the prevailing explanation would not take the form of hard textualism at all. Constitutional lawyers might simply learn to shrug their shoulders at the mismatch between the language of Section 2 and the fact of representation for D.C., just as they now overlook the practice of letting criminal defendants waive jury trial. If pushed, they might say that mature respect for the constitutional text means reading it in a reasonable way rather than a crabbed and literal one. But one way or another, the text would not prohibit the practice.

I like Professor Primus. I met him at the Constitution in 2020 Conference and was very impressed by his work.  Definitely check out this article.

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    IJ’s Bone Marrow Case: Judicial Minimalism and the Rational Basis Test

    Jeff Rowes continues his great series of posts at Volokh. Here is his latest piece, where Jeff discusses unenumerated rights, the rational basis test, Footnote Four of Carolene Products, and judicial minimalism. I have copied a few choice nuggets:

    But no one seriously disputes that unenumerated rights exist, although there is considerable debate over their nature and scope.  Who doubts that we have the right to travel or vote or raise children?  The right to earn an honest living in the lawful occupation of your choice was among the first unenumerated rights the Supreme Court recognized and that right has an undeniable basis in the Privileges or Immunities Clause of the Fourteenth Amendment (see Randy Barnett’s outstanding scholarship).

    The history of the Constitution supports unenumerated rights.  Madison presciently warned against enumerating rights because he foresaw what has become a cornerstone of the judicial-minimalist worldview: the argument that the only rights we have are enumerated ones.

    Inordinate emphasis on protecting only the relatively few enumerated rights cannot be squared with the Constitution as a whole.  The Bill of Rights was part of a constitutional scheme that was both intended and understood to have created a government of limited, enumerated powers.  Had the authors of the Constitution known that what I’ll call “legislative activists” in the elected branches would, with the eventual approval of the courts, repudiate any structural limitations on their power, then we would likely have a much different Bill of Rights, one that presumably would have expressly identified a much larger set of liberties.  Judicial minimalists should understand that the enumeration of certain rights does not reflect a decision by the Constitution’s ratifiers that the federal government is supposed to be, to borrow Randy’s metaphor, a vast sea of government power with tiny islets of liberty.

    This slicing and dicing of rights into different categories with different standards of review, and placing an extraordinarily onerous burden on certain rights, is pure judicial invention.  Conservative-leaning judicial minimalists should reflect on the irony that their philosophy is rooted in the big-government agenda of the New Deal Era, and that among the Supreme Court’s most “minimalist” decisions—in the sense of showing extreme deference to the elected branches—are its most activist ones such as the refusal to enforce essentially any structural limits on federal power (Wickard, Raich).

    There is no reason why the government’s legitimate functions—like protecting public health and safety—necessitate a standard of review in which courts are required to ignore pro-citizen facts, invent pro-government facts, and actively try to imagine reasons to uphold anything a legislature has done.  Why is the truth antithetical to constitutional adjudication?



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    Reason.TV Next Installment on Ayn Rand

    Very worthwhile watch.

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    Virginia Election Results, County by County. Arlington and Alexandria went Blue 60%. No Shock.

    Check out this interact map from the Washington Post. It breaks down the election results County by County.

    Arlington County (my former home) voted for Deeds 66% and Alexandria voted for Deeds 63%. McDonnell won Fairfax 51-49. Very close.



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    Judge Allows Constitutional Challenge to Human Gene Patents

    From, H/T @ACSLaw:

    Opponents of patenting human gene sequences were handed a rare court victory on Monday, when a federal judge refused to dismiss a suit challenging patents for two genes tied to cancers in women.

    The case revolves around seven patents relating to human genes BRCA1 and BRCA2, mutations of which have been tied to breast and ovarian cancer. The patents are owned by the University of Utah and licensed to Salt Lake City-based Myriad Genetics. In the late 1990s, Myriad began contacting researchers at the National Cancer Institute and various universities who were working with BRCA1 and BRCA2, demanding they cease their research on the genes and stop testing women for risk-carrying mutations.

    The plaintiffs claimed that the BRCA1 and BRCA2 patents are invalid because they cover “products of nature,” and they alleged that Myriad’s attempts to enforce the patents by limiting genetic research violated First Amendment protections. In their motions to dismiss, Myriad (represented by Jones Day) and the PTO argued that the suit should be dismissed because the plaintiffs lacked personal and subject matter jurisdiction and because they failed to state a claim for a constitutional violation.

    Patents for human genes are a hot topic right now. Check out the tragedy of the anticommons for more background.

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    Is Justice Scalia Wrong? Gruntled Is A Word!

    This morning, I discussed an ABA Journal article, wherein Justice Scalia chastised an advocate for making up the word choate. To article reports

    As Barnhouse tried to move on, Scalia offered an example. “It’s like ‘gruntled,’ ” he said.

    “Exactly. ‘Disgruntled,’ ” Scalia said. Some people mistakenly assume the opposite of “disgruntled” is “gruntled,” he explained.

    Well it seems Scalia may be wrong. Josh House, a GW 1L, and an astute commenter, pointed out that gruntled is in fact a word:

    Interestingly enough, Scalia is wrong about “gruntled”. Oxford dictionary says it means “pleased, satisfied” – the word was derived from disgruntled in the 1930s.

    Oxford English Dictionary Confirms, gruntled seems to be the opposite of disgruntled.

    Definition: Pleased, satisfied, contented.

    1938 WODEHOUSE Code of Woosters i. 9 He spoke with a certain what-is-it in his voice, and I could see that, if not actually disgruntled, he was far from being gruntled.

    1962 C. ROHAN Delinquents 76 Come on, Brownie darling, be gruntled. 1966 New Statesman 11 Nov. 693/2 An action against a barrister for negligence..would open the door to every disgruntled client. Now gruntled clients are rare in the criminal courts. 1967 E. MCGIRR Hearse with Horses i. 17 The Agency has a nice file of gruntled exes who have found their talents in a great variety of jobs.
    Is Justice Scalia wrong?
    Update: I emailed this question to one of my favorite Law Professors who specializes in etymology and the history of words. His response:
    Gruntled is indeed in the dictionary, as the opposite of disgruntled.  But it’s pretty clearly not idiomatic, as a Google search shows.  So it’s not a mistake to assume that there is a word “gruntled” that’s the opposite of “disgruntled.”  But it is a mistake to assume that there is such a word in common usage, and especially in common serious usage (since “gruntled” as the opposite of “disgruntled” has a humorous connotation, I think).