Law and Judicial Duty

by Hamburger, Philip

• ISBN13: 9780674031319
• ISBN10: 0674031318
• Edition: 1st
• Format: Hardcover
• Copyright: 2008-11-01
• Publisher: Harvard Univ Pr

Summary

Philip Hamburgerrs"s Law and Judicial Duty traces the early history of what is today called "judicial review." Working from previously unexplored evidence, Hamburger questions the very concept of judicial review. Although decisions holding statutes unconstitutional are these days considered instances of a distinct judicial power of review, Hamburger shows that they were once understood merely as instances of a broader judicial duty.The bookrs"s focus on judicial duty overturns the familiar debate about judicial power. The book is therefore essential reading for anyone concerned about the proper role of the judiciary.Hamburger lays the foundation for his argument by explaining the common law ideals of law and judicial duty. He shows that the law of the land was understood to rest on the authority of the lawmaker and that what could not be discerned within the law of the land was not considered legally binding. He then shows that judges had a duty to decide in accord with the law of the land. These two ideals-law and judicial duty-together established and limited what judges could do.By reviving an understanding of these common law ideals, Law and Judicial Duty calls into question the modern assumption that judicial review is a power within the judgesrs" control. Indeed, the book shows that what is currently considered a distinct power of review was once understood as a matter of duty-the duty of judges to decide in accord with the law of the land. The book thereby challenges the very notion of judicial review. It shows that judges had authority to hold government acts unconstitutional, but that they enjoyed this power only to the extent it was required by their duty.In laying out the common law ideals, and in explaining judicial review as an aspect of judicial duty, Law and Judicial Duty reveals a very different paradigm of law and of judging than prevails today. The book, moreover, sheds new light on a host of misunderstood problems, including intent, manifest contradiction, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent.

Table of Contents

Preface	p. ix
Introduction	p. 1
Law	p. 19
The Hierarchy of Law	p. 21
The Shift toward Authority	p. 31
Constitutions	p. 70
Judicial Duty	p. 101
Judicial Duty	p. 103
Independent Judgment	p. 148
Judicial Decisions	p. 179
Authority to Expound Law	p. 218
Judicial Duty as to Legislative Acts	p. 235
No Appeal from Parliament	p. 237
Colonial Departures	p. 255
Law and Judicial Duty in America	p. 281
Law and Judicial Duty	p. 283
Reason and Justice within the Law	p. 327
The Range of Constitutional Decisions and the Character of Judicial Duty	p. 358
Judicial Duty in America as to Legislative Acts	p. 393
Holding Legislative Acts Unconstitutional	p. 395
A Lopsided Debate	p. 462
Not Holding Legislative Acts Unconstitutional	p. 476
Independence and Authority in America	p. 505
Independence	p. 507
Authority	p. 536
Inexplicit Ideals	p. 575
The Inexplicitness of Constitutions	p. 577
Federal Clarifications	p. 587
Conclusion	p. 606
Bonham's Case	p. 622
The Institutio Legalis: Law and Justice in New Jersey	p. 631
Common Law Adjacent to Statutes: Religious Taxes in Massachusetts	p. 643
Chronological Table of State Decisions	p. 655
Index	p. 659
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