Posner on Judicial Review

This is so good I'm quoting the whole thing:

Modesty and Power

Richard A. Posner

Law and Judicial DutyBy Philip Hamburger(Harvard University Press, 704 pp., $49.95)

"...The most momentous, controversial, even frightening power of the federal judiciary--the one in greatest tension with democracy and federalism--is the power to invalidate federal and state statutes that in the opinion of the judges are inconsistent with the federal Constitution. This power, which lawyers call "judicial review," has often been regarded as the invention of a handful of free-wheeling late eighteenth- and early nineteenth-century American lawyers, notably Chief Justice John Marshall, whose opinion in Marbury v. Madison in 1803 is often thought to have created ex nihilo the "American doctrine of judicial review."

The distinguished constitutional scholar Alexander Bickel called the power of judicial review "Marshall's achievement."

For the Constitution does not say that federal courts can invalidate a statute. Article VI, the "supremacy clause," describes the Constitution, along with federal statutes and treaties made under federal authority, as "the supreme Law of the Land," and states that "the Judges in every State shall be bound thereby." But it says nothing about federal judges being empowered to invalidate statutes, whether federal or state. ("Judges in every State" could not include Supreme Court justices, since the Constitution authorized and envisaged the creation of a district--it became the District of Columbia--that would not be part of any state.) In describing federal statutes and treaties as part of the "law of the land," Article VI could be understood simply to be commanding state judges to acknowledge the supremacy of federal law. Article III confers the "judicial Power of the United States" on the Supreme Court and such lower courts as Congress decides to create, and the power expressly includes the power to decide cases arising under the Constitution, as well as under other federal laws and under treaties--but at most this only implies a power to adjudicate constitutional challenges to federal statutes. "Any explicit grant of this power," in Robert Jackson's words, "was omitted ... [the power] was left to lurk in an inference."


John Marshall--commended by Holmes as the "loose constructionist" judge who "start[ed] the working of the Constitution"--argued disarmingly in Marbury that since the Constitution is law, and indeed supreme law, an inconsistent statute, being inferior law, must give way. In his words: "If the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply." He chose to take this approach, in the account that I am summarizing, not under the compulsion of the constitutional text, but because he was a Federalist, and so he wanted the Supreme Court to be able to check the populist impulses of elected legislatures. Marshall thus initiated the "struggle for judicial supremacy" (as Justice Jackson later described it, in a book of that title from which I quoted earlier) that eventually resulted in a secure--an unquestioned--power of judicial review, however tenuous its constitutional pedigree.


The main purpose of Philip Hamburger's book is to counter this account of the rise of judicial review by tracing the history of the practice all the way back to the Middle Ages and ending with the Constitution of 1787. Hamburger is an accomplished and assiduous legal historian, and his book is a work of imposing scholarship. But he is not just an antiquarian. The idea that he has set out to overthrow--that judicial review was invented in order to enhance the power of the Supreme Court--has implications that disturb him. "If judges established their power of review on their own authority," Hamburger remarks, "they would appear to have control over the character and exercise of the power, and this would seem to leave them with an extraordinary discretion over the liberty of their fellow Americans." Hamburger believes deeply in judicial modesty. He argues that what has come to be called judicial review was intended to exemplify rather than to reject judicial modesty, which is why the framers of the Constitution took the power for granted, and so felt no need to talk it up in the constitutional text.


Hamburger's argument pivots on a few key terms. One is the "law of the land. " This phrase in Article VI is of medieval English origin. Originally it referred to the actual, existing law of England, as distinct from either natural law--the law of God, knowable by the exercise of human reason--or "academic" law, constructed by scholars out of the best laws of different countries and the best ideas about what law should be. The early English judges thought it presumptuous for judges either to interpret natural law or to create law. The modest judge interpreted and enforced existing English law, period. The judges were not disrespectful of natural law--they agreed that they were answerable to God, and they took their oath of office with utmost seriousness; but they conceived their divinely imposed duty to be to enforce human law. This conception of the judicial function was transmitted to England's North American colonies, thence to their successors the states, and finally, when the Constitution was written, to the federal government, though of course the relevant "law of the land" in Article VI was American rather than English law.


The next key term is the "office of the judge." Judges derived their concept of judicial duty from the judge's "office," or, as we would be inclined to say, the judge's role, jurisdiction, or "job description." The judge's duty that derived from his "office" was to apply the law of the land to the decision of cases. Deciding cases became distinguished from other tasks that a judge might undertake, such as rendering advice to a legislature, but that would be outside the judge's office. When the judge was deciding actual cases presented to him, he was speaking with the authority of his office, and in that capacity he could nullify even a king's command. Moreover, the duty fell on every judge, however lowly, for the duty "came with" the judicial office. In short, as Hamburger writes, "the evidence reveals the importance of the common law ideals of law and judicial duty. It shows that these two ideals, taken together, required judges to hold unconstitutional acts unlawful."

We also need to understand Parliament as a "court," and the concept of a "customary constitution" as distinct from a written one. Although an English judge could countermand a royal command and invalidate local legislation in the performance of his duty to decide cases on the basis of the law of the land, he could not (despite occasional suggestions otherwise) invalidate acts of Parliament. Parliament, which dated from a time before courts and legislatures were clearly separated, was deemed a court--indeed, the highest court in the land. (Indeed, until recently, a committee of judges in the House of Lords was England's highest court.) Moreover, England's constitution, conceptualized as "the law by which a people simultaneously authorized their government and limited it," was not a single document, like the U.S. Constitution, but a conglomeration of customs, common law and equitable doctrines, and acts of Parliament. When Parliament enacted a statute, this was tantamount to amending the constitution; and a judge could no more countermand an act of Parliament than he could amend the constitution.


It was the fact that English courts could not invalidate acts of Parliament that has given rise to the idea that the "American doctrine of judicial review" represented a break with England. Not so, Hamburger argues. The legislatures of Britain's North American colonies were not supreme courts, like Parliament; they were subordinate bodies--subordinate, in fact, to Parliament. Their enactments thus corresponded to local legislation in England, and so could likewise be challenged as inconsistent with the British constitution--and they were. The Crown actually encouraged the creation of powerful judicial courts in the colonies as a check against the colonial legislators, who were more populist and less loyal to the Crown than the judges.


When the United States was formed, the colonial legislatures became state legislatures and the colonial courts became state courts. The British constitution was not an appropriate model for a state constitution, so most states wrote their own constitutions. Since the judges were already accustomed to using constitutional law as a trump when statutory law was inconsistent with it, they made a smooth transition to treating the written constitution of their state as the supreme law, trumping inconsistent statutes. This made it natural for John Marshall to treat the Constitution as trumping any federal or state statute that was inconsistent with it. So natural was this assumption of authority, on the basis of British, colonial, and state precedents, that there was no felt need to spell it out in the Constitution.


It does seem odd, though that so little of this history is mentioned in Marshall's very long opinion in Marbury. He takes great pains to justify judicial review, and so one might have expected him to refer to the helpful colonial and state history. But the exercise of judicial review of national statutes by a national court was such a large step beyond its exercise by a colonial or state court that maybe the colonial and state experience would not have been terribly persuasive. So maybe the Supreme Court's exercise of judicial review was a Marshallian innovation after all. Hamburger disagrees. He argues that, properly understood, judicial review of statutes, whether federal or state, for conformity to the Constitution is not innovative, awesome, usurpative, or political at all. In fact, it exemplifies judicial modesty, because it requires that judges conform their decisions to the "law of the land, " which simply happens to include the Constitution as well as the subordinate law created by statutes. Marshall argued in Marbury that it would be lawless for judges to disregard the limits that the Constitution placed on legislative and executive power.
Judges had always known, as Hamburger acknowledges, that the scope of a statute, a constitutional provision, or a common law doctrine was often uncertain, and this fact might seem to invite or even to necessitate the exercise of judicial discretion in some cases. But he disagrees, arguing that the judges believed that the mental faculty requisite in a judge was not creativity but discernment. The object to be discerned was the "intent" of the law. "One way or another, intent had to be discerned, for it was the source and measure of the obligation of law." If it could not be discerned, the law imposed no obligation at all. So legislatures and constitutional conventions had better write clearly, because otherwise the judges might treat their enactments as nullities.


Hamburger does not explain what this interpretive methodology, applied to constitutional issues that have arisen since the Constitution was adopted, would yield in the way of a body of constitutional law. Yet he intimates that it would be a smaller body than what we have. Judicial review, as he understands it, was not a judicial innovation the contours of which the inventing judges and their successors had to draw. The power had existed since medieval times. But it was a power grounded in a deferential conception of judicial duty. Judges could not make law; they could only find (that is, discern) it. Precedents did not create law, they clarified or particularized it; and only because "the exposition of law belonged to the office of judgment rather than of will [did] the opinions of the judges in the exercise of their judgment ha[ve] the authority of their office." Fortunately, a constitution of principles would be clearer than one of rules or precedents, because principles "are fixed and immutable." A judge would therefore be able to decide a constitutional case by laying the constitutional text alongside a statutory text alleged to be inconsistent with the former; if comparison revealed that the two texts were inconsistent, the statute, being less authoritative, would be extinguished.


Hamburger argues that this ideal of judicial self-restraint was attainable because the duty to enforce the law of the land, including the constitution, being inherent in the office of the judge, rested on every judge and applied in every case. "The generality of the duty was what gave strength and balance to their constitutional decisions, for it authorized and bound the judges with the same ideals that elevated and confined them in their more mundane decisions. Their duty thus anchored an otherwise extraordinary power within the quotidian exercise of their office, and the result was a judicial power both more authoritative and less dangerous than that which prevails today."

So there were two paths, according to Hamburger, open to John Marshall and his successors. One, the path of deference, was to follow the lead of English judges, colonial judges, and state judges before 1787 (and also future Supreme Court Justice James Iredell, who as a practicing lawyer had sketched the deferential path in an essay published the year before the Constitutional Convention), and simply apply, as they would in any case, the "law of the land, " which merely happened now to include a national constitution. The other path was to acknowledge the vagueness of many constitutional provisions, the difficulty of amending the Constitution, and the high stakes of invalidating statutes, especially federal ones--but, in response to these daunting circumstances, not to throw up one's hands and declare the vague provisions unenforceable (as once suggested by Learned Hand) but instead to embrace a creative, essentially a legislative, role for the Supreme Court in constitutional cases.

In that role the Court would make constitutional law, not find it. Guided by the spirit rather than the letter of the Constitution or even the intent of its makers, the Court would be engaged in continually adapting an old text to modern needs. That was the path in fact taken (though Hamburger, whose history ends in the eighteenth century, is vague on precisely when it was taken), and, as a result, "not unlike kings and Parliament when they claimed to be the final arbiter, American judges have acquired a taste for power above the law."

There are problems with the "two paths" thesis. One is that the fact--if it is a fact--that judges could have taken the first path rather than the second does not prove that the first path is better--or even that it would define a smaller role for the Supreme Court. There is a deep ambiguity in the concept of judicial modesty. Hamburger advocates strict adherence to formal legal doctrines. That is a form of intellectual modesty: no policymaking, no talk of a "living constitution," let the chips fall where they may, fiat iustitia, ruat caelum.

An alternative conception of judicial modesty, first clearly articulated by James Bradley Thayer in the late nineteenth century and embraced by Oliver Wendell Holmes, focuses on the consequences for democracy, liberty, progress, and welfare of too free-wheeling a conception of judicial power to invalidate legislation. It is epitomized in Justice Jackson's warning against turning the Bill of Rights into a suicide pact.

It was one thing for English judges to invalidate borough acts, and colonial American judges to invalidate colonial statutes, and state judges to invalidate state statutes, But it was (and is) quite another thing for courts to invalidate national statutes. That was a power for which there was no precedent when the Constitution was enacted, because English courts could not invalidate acts of Parliament. Marshall and his colleagues might have decided that Congress like Parliament was a kind of "court" whose "decisions" (namely the laws that Congress enacted) could not be overturned by judges.

One wishes that Hamburger had carried his study beyond the Constitutional Convention. Marshall rejected the extreme of consequentialist judicial modesty, as I have just noted; and his explanation of judicial review in Marbury was Hamburgerian minus the history. Yet in fact the Marshall Court invalidated only one federal statute--the one challenged in Marbury itself, a statute that actually expanded the Supreme Court's jurisdiction--while at the same time greatly expanding federal versus state power. Marshall was not modest in Hamburger's sense (remember Holmes's description of Marshall as a loose constructionist who started the Constitution working), but he was modest in the consequentialist sense, if one thinks that striking down federal statutes, other than those that constrain judicial power (such as the one struck down in Marbury), is the most aggressive exercise of that power.

And how realistic is Hamburger's picture of the deferential judge? He acknowledges that his history is one of judicial "ideals" rather than of judicial actualities, but the neglect of actualities weakens his case. He gives too little weight to the fact that judges (most of them, anyway) talk a deferential game even when they are playing a discretionary one. They do this today, and it is understandable why they did it even more emphatically in the period covered by Hamburger's book. For the less secure a judge's authority--and judicial authority was far less secure then than it is in the United States today--the greater his need to represent himself as merely an oracle of the law. He does not decide cases; it is the law, speaking through him, that decides them. Rather than being a "decider," he is merely a "discerner." To criticize a judicial decision is to criticize the law itself.

The idea that law, whether in the thirteenth century or the twenty-first century, is a body of principles and rules that cover the entire landscape of potential legal disputes, so that the judge has only to find the principle or rule that governs the disputes that he is called upon to adjudicate, is (and probably always has been) either a ridiculous pretense or a rhetorical flourish. It is the latter if one thinks it meaningful to describe law in terms such as "justice" or "reasonableness," so that in every case, however uncertain it may seem, the judge has merely to discover the meaning of "justice" or "reasonableness" as it bears on the case. But in a case in which the judge's only guide is "justice" or "reasonableness," inevitably he will be exercising discretion--think, for example, of the variety of judicial interpretations of the term "unreasonable searches and seizures" in the Fourth Amendment to the Constitution.

All this is not to say that judges pay no attention to the language of constitutional provisions, the intent behind them as inferred from the constitutional text and other evidence, the precedents interpreting them, and other orthodox materials of legal interpretation. It is also not to say that judges are undisciplined, or that they fail to take their oath of office seriously--though Hamburger thinks they no longer do: "Eventually there would be little remaining memory of the divine office of judgment ['judges are obliged to judge righteously, upon pain of damnation'] and the obligation to adhere to it, thus leaving these ideals to survive only in a threadbare deference to the outward robes of office."

But often the orthodox materials in a case do not point strongly to one outcome rather than another, and then other factors enter into the decision of the case, such as the judge's worldview, his sense of the consequences of alternative outcomes, his moral and political values, his temperament, and his sensitivity to public opinion. Hamburger does not show that these factors played a smaller role in the decisions in the period covered by his book than they do today, though an even greater effort at concealment was made because (I am speculating) the judges had a less secure position in the system of governance. They had to hide behind "the law": "the law made me do it."

Law and Judicial Duty may seem at least to have answered the question why the Constitution did not create a power of judicial review explicitly. I am not entirely convinced. Remember that Article VI commands the state judges to bow to the "supreme law of the land." Yet according to Hamburger, as we know, the duty to apply the "law of the land" rests on every judge, and therefore on state judges. Since this is a defining aspect of the office of the judge, why did it have to be made explicit, but not the duty of determining the constitutionality of statutes?

Hamburger goes so far as to argue, rather wildly as it seems to me, that because "a common law judge had to decide in accord with the law of the land, he did so with a divine obligation and in imitation of divine judgment, and he thus had to reach far above earthly things in his pursuit of terrestrial law," and therefore "were a human law to restate the duty or to give it human obligation, this law [the Constitution] ... might subvert the understanding that judges were responsible to a higher authority." If this is right, it was an insult to state judges to tell them in Article VI that they had to conform to federal law; they knew it already.

In any event, the power of judicial review that Hamburger considers implicit in the Constitution is not the power that the federal courts have actually been exercising. Ever since the Dred Scott decision in 1857, the Supreme Court has been busy administering the "American doctrine of judicial review" that Hamburger considers not to have been authorized by the Constitution, but to have been the creation of aggressive justices. Thus, rather than demonstrating the legitimacy of American constitutional law, Hamburger has cast doubt on its legitimacy, by showing that the judicial power authorized implicitly by the Constitution was a more limited power. And yet--to return to the distinction between the two concepts of judicial modesty--the modesty that he commends could wreak as much havoc, or more, as could loose constructionists concerned with the consequences of judicial review.

After all, it was the self-proclaimed "modest" judges, in approximately Hamburger's sense--the apostles of "textualism" and "original meaning"--who recently gave us the decision in the Heller case invalidating the D.C. gun-control ordinance on the basis of the Second Amendment to the Constitution. A recent article by J. Harvie Wilkinson, a distinguished conservative federal judge, describes Heller, which has cast a dark pall over gun control throughout the entire United States, as the second coming of Roe v. Wade. Whatever Heller stands for, it is not modesty.

These reservations concerning Hamburgerian judicial modesty to one side, the history that Hamburger has excavated is genuinely fascinating, and it may alter the terms of debate among constitutional theorists, preoccupied as many of them are with origins. Very long and sometimes a little dry, the book is nevertheless a pleasure to read, and that is in part because of the enormous labor that its author poured into it. Clearly it was a labor of love. I mean that almost literally. For it is apparent that Hamburger has fallen in love with the judicial culture that he found in the Anglo-American past, and that he hates the modern judicial culture that is discontinuous with it.

He has internalized the stated values of the judges of a bygone era, and if this seems a little strange, its strangeness is redeemed by the fact that with empathy comes insight. Philip Hamburger has not only greatly enriched legal history, but he has enabled us to see, if not what the judges of old actually thought, let alone what unconscious thoughts and emotions motivated them, then at least how they wished to be seen; and that is an important part of a proper understanding of judicial behavior, ancient and modern..."

Richard A. Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School.