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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