Expounding the Law: Law and Judicial Duty

17 Pages Posted: 30 Sep 2010 Last revised: 9 May 2011

Mary Sarah Bilder

Boston College - Law School

Date Written: September 29, 2010

Abstract

Written as a comment on Philip Hamburger's book, Law and Judicial Duty, this essay explains why the history of judicial review remains a difficult area for scholarship. American judicial tradition espoused that judges had an obligation to declare as void laws repugnant to the constitution. The essay suggests that the source of this duty, as well as the meaning of both the constitution and laws of the land, changed over time. The essay proposes that scholars perceived American judicial review as problematic only when this tradition conflicted with an increasingly rigid belief in separation of powers. The essay concludes by suggesting that Marbury's significance derives from its status as the last time an American judge could declare that striking down a law as repugnant to a constitution was the simple consequence of expounding the law. The comment ultimately argues for recovering the time-honored meaning of "expounding" as applied to the work of judges.

Keywords: Judicial Review, Marbury v. Madison, Constitutionalism, Judicial Duty, Edward Corwin

Suggested Citation

Bilder, Mary Sarah, Expounding the Law: Law and Judicial Duty (September 29, 2010). George Washington Law Review, Vol. 78, No. 6, p. 1129, September 2010; Boston College Law School Legal Studies Research Paper No. 205. Available at SSRN: https://ssrn.com/abstract=1684593

Mary Sarah Bilder (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States
617-552-0648 (Phone)
617-552-2615 (Fax)

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