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Judicial Review and Judicial Duty: The Original Understanding

Constitutional Commentary, Vol. 26, No. 1, pp. 169-182, 2009

George Mason Law & Economics Research Paper No. 09-55

15 Pages Posted: 3 Nov 2009 Last revised: 10 Apr 2014

Nelson Lund

George Mason University School of Law

Date Written: November 2, 2009

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.

Keywords: Barack Obama, Congress, constitutionality, Dr. Bonham’s case, Federalist Papers, John Marshall, Michael Seidman, Rule of Law, Sonia Sotomayor, Supreme Court, Thomas Jefferson, unconstitutional

Suggested Citation

Lund, Nelson, Judicial Review and Judicial Duty: The Original Understanding (November 2, 2009). Constitutional Commentary, Vol. 26, No. 1, pp. 169-182, 2009; George Mason Law & Economics Research Paper No. 09-55. Available at SSRN: https://ssrn.com/abstract=1498754

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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