Philip Hamburger · September 2010
78 GEO. WASH. L. REV. 1162 (2010)
What is the role of judges in holding government acts unconstitutional? The conventional paradigm is “judicial review.” From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called “judicial review” is merely an aspect of the more general duty of judges in all of their decisions.
The difference between these paradigms has contemporary implications. If one assumes the judicial review paradigm, it is difficult to find constitutional authority for constitutional decisions, and it therefore seems that early American judges in the 1780s, and especially after 1789, must have created their own most significant power—as if they lifted themselves up by their bootstraps to achieve a power their constitutions apparently did not give them. The judicial review paradigm thereby implies that constitutional decisions have only a rather contingent authority and that the judges have a remarkable degree of power, including a discretionary power of their own rule.
The other paradigm, in contrast, envisions the judicial role in terms of duty. As traditionally understood by common lawyers, judges have an office of judgment rather than of will—an office, moreover, in which they must decide in accord with the law of the land. From this perspective, judges have no distinct power over the constitutionality of government acts, but rather must make decisions on such matters because it is part of their office or duty.
The implications of this vision are thus diametrically opposite to those of the judicial review paradigm. For example, when considered as a matter of duty, constitutional decisions have the deep, even profound authority of an ordinary exercise of judicial office. At the same time, judges have no power beyond their duty, and they therefore have to make constitutional decisions in the same way as their other decisions, merely in accord with the law of the land.
Which paradigm is to be believed? Well, at least for historical inquiry, the answer must rest on the evidence. This Essay, therefore, evaluates each of the two paradigms in relation to the evidence.
