If, under the Constitution, no one can be convicted of treason without two witnesses to the same overt act, how many are needed to prove fidelity? That's a trick question, of course, for between innocence and guilt there is asymmetry. Innocence is presumed in accusations in part because it is impossible to prove.
How many scholars, then, working independently, must make the same discovery before a longstanding presumption in constitutional matters is reversed? Three books have recently appeared, published at major presses by scholars across the political spectrum, all challenging the standard understanding of judicial review. These books do not deny that judges can legitimately set aside unconstitutional acts; what they deny is that this practice is best understood as a power vested in courts. The authors argue that most of the problems concerning judicial review—how it is exercised by courts and viewed by other political actors, and how legitimate it seems to the public at large—would be mitigated, if not outright eliminated, if the practice were understood not as a political power but as a judicial duty. This, they claim, is precisely how constitutional review was originally understood by the common-law judges who initiated it.
The most thorough, and most historically based, statement of this case is Philip Hamburger's Law and Judicial Duty. Already well known for his revisionist classic, Separation of Church and State (2002), Hamburger takes the story back to early modern England, then forward to the pre-Marbury v. Madison cases thought to have established judicial review in the newly independent United States. He shows that the idea that it is a judge's duty to decide cases according to the law runs throughout the judicial oaths of the common-law courts in England and America. He contrasts academic law and common law: the former was anchored in philosophy, theology, and civilian jurisprudence (i.e., civil law); the latter was constituted by the practice of courts and the reports of cases. In the 16th and 17th centuries, the English judge was bound only by the common law; what was lost in theoretical elegance was gained in practical effect, for the common-law judge ranged widely through the legal materials available to him, beginning from the relevant precedents but considering evidence from other sources as it was raised. When in the 18th-century academic sources were no longer seen as a threat to the ascendancy of common law, writers such as William Blackstone and judges such as Lord Mansfield could begin to incorporate natural-law arguments into common-law jurisprudence. But on the whole the common-law judges preferred to work with precise, circumscribed legal rules, not abstract, sweeping principles of justice. Their discretion was formed by law and exercised not freely or arbitrarily but according to the law. There was an art or skill of deciding cases, and it had nothing to do with political strategy: it involved the independent exercise of judgment, particular to the case but not creative, at once drawing from and contributing to the vast record of decisions that formed the law.
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When the American constitutions appeared on the scene as authoritative, written expressions of the will of the people, they were assimilated into the common lawyers' approach to the law. While taking into account the whole array of rules and precedents and statutes, judges paid attention to the new constitutions, too. Long practiced at voiding executive officials' unlawful actions, judges discovered in a written constitution a means to further narrow statute laws' meaning. They didn't see this as a license to impose a policy; it resulted, instead, from a duty to decide—in the early days a duty judges were at times hardly eager to perform, because it might have left them vulnerable to the wrath of a legislature whose work they had overturned. What we call judicial review, then, was neither unknown in England nor novel in America. Common-law judges were obliged to decide cases according to the law as a whole, and they had an ancient practice of doing so in England, sometimes confining, if rarely voiding, law made by the English Parliament. There is no explicit grant of the power of judicial review in American constitutions because the framers weren't imagining or conferring anything new; judicial power and judicial oaths were already established, and with them the familiar duty to decide cases according to the laws of the land.
There is nothing in Hamburger's argument that is inconsistent with the classic presentation of judicial review in either Federalist 78 or Marbury v. Madison (1803), and indeed his reading is consistent with everything about those documents that makes them seem inadequate to the invention of a new, extraordinary power. Although critics of the modern practice of judicial review have shown that many decisions by modern judges would never have been conceived by those who established the American judiciary, Hamburger's account is distinctive and persuasive because he anchors a circumscribed judicial review in a positive duty to do justice according to law, not a negative counsel of self-restraint. The categories of activism and restraint belong to the modern realist paradigm he challenges; his discussion focuses instead upon judgment, as distinct from force and will. He applauds strong judges determined to do their duty, and recognizes that part of their strength is to see the depth—and limits—of judicial duty in each particular case.
Two other accounts of judicial duty also invoke the character of the judge who is bound in conscience to do justice; they are less historically confined and thus less modest in their implications for the contemporary scene. In Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review, Douglas Edlin, an associate professor of political science at Dickinson College, anchors judicial review in common law, like Hamburger, and identifies Sir Edward Coke's opinion in Dr. Bonham's Case (1610) as a crucial precedent. But he ranges more widely, bringing the story of the common law into the post-Holmesian age, when law becomes frankly judge-made. Edlin expands the meaning of judicial review, claiming that though judges are bound by precedent and legislative supremacy, they also have a moral duty to develop the law in the direction of justice. He doesn't mean to endorse assertive policy-making from the bench; new rules should be fashioned by analogy to existing ones, he cautions, and judges should focus on their own jurisdiction and their central tasks. "The law is limitless in its potential to achieve justice," he writes nevertheless, and "in its realization of that potential, the law is limited only by the reason, vision, compassion, and imagination of those to whom its expression is entrusted."
Steve Sheppard's I Do Solemnly Swear: The Moral Obligations of Legal Officials is the third witness to the new concern for judicial duty. The William Enfield Professor of Law at the University of Arkansas, Sheppard is in one sense more focused than Edlin—he proclaims no judicial duty to develop the law—but also wider ranging, because he insists that other legal officials have a duty to do so. Justice, he argues, must be understood in retail, not wholesale, fashion, meaning that every official responsible for enforcing the law should be held accountable to it. Simple as this sounds, it is impossible to convey in a moment Sheppard's breadth of learning or sheer inventiveness. I know of nothing quite like this book since the 18th century, and even then not from a university press. One wishes a friend had advised Sheppard to abandon a few of his law-school hypotheticals—does it really help to imagine Pastafarians (members of the fictional Church of the Flying Spaghetti Monster); or a city policeman enforcing international law?—but these occasional nods to intellectual fashion grow rare as the argument grows serious.
Sheppard defines law as an archive and a culture, not a collection of abstract rules. He sees lawyers as a distinct professional class. "Law," he writes, "is an archive of rules synthesized in a professional culture that manages these rules and to which everyone in the state is bound." If this seems to leave no room for, say, democracy, you have caught the tone of Sheppard's provocative skepticism, but not his meaning. Though he intends to dissolve political fictions that hide government's coercive character (he readily calls citizens "subjects," and not only because he takes examples from England as well as America), he also sees democracy's task as rigorously holding every legal official accountable to the law. "The whole point of democracy as a source and assurance of the laws," he writes, "must be that the people have a duty to ensure the morality of their officials." Except for jurors, no one holds office without having volunteered for it, and that demands, so to speak, strict scrutiny of all they do officially—full accountability, at least in terms of reputation if not in more material ways.
If Hamburger sees judicial review as part of judicial duty, and Edlin regards it as part of the project of ensuring against unjust laws, for Sheppard it belongs to the quest for accountability:
We must have justice in every case because if we do not, the very reasons for any person—citizen or official—to follow the law are weakened. An argument for justice that seeks a greater good than this risks ultimately being betrayed by its own contradictions: justice is retail—personal and individual—or it does not exist.
His focus on the individual official returns judicial review to judicial duty—but his retail analogy is a red herring, because, outside of a subsistence economy, there is no retail without wholesale. Every sharp customer knows "never pay retail." If rigorous accountability is as impossible as universal retail pricing, on what principle will enforcement be discounted? Is it not sure to be political?
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Paradigms shift because the old theory no longer fits the facts as well as the new one does. If judicial review is to be redefined in terms of judicial duty and the public (including political scientists) is to stop thinking of judges as policymakers, then judges will have to relearn how to argue in terms of each case, and to decide cases in persuasive ways. Partisan framing of every issue is now so strong that few can see how focusing on judicial duty might make trial by newspaper less acceptable to the public and less tempting to the judge. Philip Hamburger and Steve Sheppard both point judges in a healthy direction by asking them to think about their duty in the matter at hand, rather than about the whole of justice. In a society that celebrates the individual person, why should we think there is a higher official calling than settling what is just when a person's life, liberty, and property are at stake? Even today, what captures public attention in legal controversies is that the real meaning of the law becomes clear in its concrete application to actual disputes. To treat cases as vehicles for policy not only puts policy-making in the wrong hands; it distracts judges from the duty explicit and implicit in their oath.