The Catholic University of America

Professor Philip Hamburger (at left) responds to questions and comments at the
conclusion of a symposium on the ideas put forth in his book,
Law and Judicial Duty.  

The Nature of Judicial Authority


Judges have been reviewing laws, and sometimes striking them down on constitutional grounds, for hundreds of years. Americans have grown accustomed to the role of the jurist in the formulation of law, but a provocative new book is asking the fundamental question: From where do judges derive the power to declare a law invalid, and has the original understanding of that power mutated over time into overt judicial activism?
The volume, Law and Judicial Duty, written by Philip Hamburger, Maurice and Hilda Friedman Professor of Law at Columbia Law School, was the subject of a two-day scholarly forum held April 8 and 9 at the Columbus School of Law and organized by CUA’s Center for Law, Philosophy and Culture and its director, CUA Law Professor William J. Wagner.
Professor Brad Lewis, professor of philosophy, Catholic University;
Professor Philip Hamburger, Columbia University; Professor William J. Wagner,
director of the Center for Law, Philosophy and Culture, Catholic University.
This symposium gathered leading scholars in the areas of the history of law and politics, constitutional law and jurisprudence to take up the ideas posed by Hamburger’s book. The discussion ranged far and wide, covering the meaning of the history of the common law, the nature of adjudication, and the true significance of judicial review as we experience it in our constitutional system today.
In his book, Hamburger traces the early history of what is today called "judicial review." He shows that common law judges had the authority to hold governmental acts unconstitutional, not because of a special power over constitutional law, but only pursuant to the requirement that a judge was obligated to follow the law of the land.
Hamburger states that the concept of judicial review as understood in the beginning was limited and narrow in scope. He argues that it has turned into something quite different in modern times, with some judges asserting special authority over the Constitution and its meaning that is off-limits to other branches of government.
“When we look back, when judges have exerted their will and gone beyond the law of the land, do we really know that they have acted in good faith and not in ill?” asked Hamburger during the final panel of the conference.
By reviving an understanding of these common law ideals, Law and Judicial Duty calls into question the modern assumptions that judicial review is a power within a scheme of conflicting powers, or a power, in any sense, to make law.
“Judicial review was never intended as judicial supremacy over the legislature,” said Michael P. Zuckert, Nancy Reeves Dreux Professor at the University of Notre Dame. Zuckert’s remarks, titled "Mr. Chief Justice Madison: Reflections on Judicial Duty in the Natural Rights Republic," explored the thinking of the primary author of the constitution and the nation’s fourth president about the appropriate role of the judiciary.
In Madison’s view, said Zuckert, all branches of government were to take their bearings from the Constitution, not just the courts. Zuckert believes that judicial review, as often exercised today, would have appeared to Madison as a violation of the separation of powers.
Hon. Emilio M. Garza, a judge on the United States Court of Appeals for the Fifth Circuit, held a similar view. Warning that judicial review can easily lead “to judge-made law,” Garza said that an overly broad interpretation of the concept tempts some judges to use it to invalidate legislation not to their own personal preferences.
When that happens, said Garza, “Judicial review crosses the line into judicial legislation.”
Other discussants for the program included Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law at the University of Chicago; R.H. Helmholz, Ruth Wyatt Rosenson Distinguished Service Professor of Law at the University of Chicago; H. Jefferson Powell, Frederic Cleaveland Professor of Law and Divinity at Duke University; and Lloyd L. Weinreb, Dane Professor of Law at Harvard Law School.