January 15, 2009

Judge Richard Posner on Philip Hamburger on judicial review.

A review — titled "Modesty and Power" — of the book "Law and Judicial Duty."
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....

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....

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.
Much more at the link.

26 comments:

Simon said...

It's tough to make it even past the first page - indeed, past the first sentence: Judicial review is in tension with federalism? How so? I can't now remember who said this - I want to say Rehnquist - but it has been suggested that while the Republic would survive if the judiciary lacked the power to invalidate unconstitutional federal statutes, it wouldn't if the courts lacked the power to invalidate unconstitutional state statutes.

At any rate, this is an old argument, even here. I've said before many times that I find the claim that Marbury made up judicial review from thin air specious; saying it in latin, as Posner does, doesn't make the claim any better-grounded or more respectable. Posner's colleague Judge Easterbrook is far more persuasive and no less glib on this issue: "The reason why judges are entitled to make constitutional decisions is that the Constitution is real law. That’s Marbury’s central point. A written constitution creates a hierarchy of legal rules; and when the Constitution clashes with an ordinary law, the Constitution prevails. That’s an implication not only of the Supremacy Clause but also of the Amendment Clause, which disables legislatures from changing the Constitution without a national consensus reflected in the approval of three fourths of the states." Lurking behind most criticisms of judicial review in abstracto, I have found, is a grievance with a particular exercise of it.

Perhaps matters will improve on page two and beyond.

Ann Althouse said...

I don't understand your criticisms, Simon. Judicial review is in tension with federalism because some things the states want to do are going to be trumped by judicial enforcement of the Constitution.

And where does Posner say Marbury "made up" judicial review? Could you quote specific things you're objecting to?

Joe the Electrician said...

Much more at the link

Ah, but not a word from Althouse. Just a long excerpt.

The scholarship-free professor remains scholarship-free!

SMGalbraith said...

It was always curious to me that both the Federalist and anti-Federalist papers, especially the latter, made such little notice of the immense power that judicial review now has.

The argument that the Constitution is supreme law and thus the reach of judicial review comes with it ignores, it seems to me, the fact (as I see it) that at the time the Constitution was limited to the actions of the federal government. No one saw the 14th/incorporation coming down the line.

Had they done so, I'm reasonably sure there would have been much more heated debate over what exactly the states were ratifying.

Simon said...

Ann,
I don't see the tension between judicial review and federalism if the latter is understood - as it should be - as "a system in which there is sensitivity to the legitimate interests of both State and National Governments." The most fundamental federal interest of all, I would think, is preventing state activities inconsistent with the federal constitution, and likewise the most fundamental state interest, I would think, is preventing ultra vires federal activities. Those interests are served, not hindered, by judicial review. Indeed, to some extent (much more since 1913), some of those interests can only be served by judicial review: but for the judiciary's power to throw out unconstitutional statutes, how would the states prevent "undu[e] interfere with the legitimate activities of the States" (id.) by federal laws?

Suppose the facts of Seminole Tribe, but in a world with no judicial review. Is there really a tension with federalism that the court's opinion didn't simply say "it's true that the Constitution didn't allow Congress to abrogate Florida's sovereign immunity, but they did - passed a statute and everything! - so what do you want us to do about it?" Is judicial review in tension with federalism? Quite the contrary, I would think: it seems to me that judicial review and a robust enforcement through it of the structural constitution is an integral part of - indeed, a prerequisite to - federalism.

As to "made up" - Posner alludes in para 1 to others who have argued that Marbury "is often thought to have created ex nihilo the 'American doctrine of judicial review[,]'" and his following two paragraphs strike me as ringing in sympathety with that view while not embracing it directly.

Joe the Electrician said...
"The scholarship-free professor remains scholarship-free!"

I can't decide whether you're pig-ignorant or just being a jackass.

Simon said...

SMGalbraith - fair to say, but two points in response. First, that the framers didn't foresee the full consequences of what they were doing doesn't defeat the fact of what they did. Second, while those who ratified the power of judicial review couldn't - quite obviously - have foreseen that its scope would be vastly expanded by the fourteenth amendment, those who ratified the fourteenth amendment must, no less obviously, have foreseen that it would vastly expand the scope of judicial review. The power - and its extension to striking down state statutes as readily as federal ones - was established well before the civil war. It would have been entirely obvious that a federal Constitutional amendment that directly regulated state conduct would give rise to judicial review of state statutes called into question.

Ann Althouse said...

But Simon, you're not finding a real flaw in anything Posner said, you're just asserting that you feel no tension because you accept that the Constitution trumps the preferences of the states. I'm guessing Posner might say it's nice that you feel comfortable, but it doesn't matter to me in the slightest. My point stands.

SMGalbraith said...

The power - and its extension to striking down state statutes as readily as federal ones - was established well before the civil war.

Yes, the language is clear (or can be clearly seen) that the power is there. But I think we all agree that it was little (or not greatly) discussed during the debates over ratification.

Given the concerns by the anti-Federalists over this new centralized power, that they didn't raise a great cry over judicial review is a mystery.

But I'm repeating myself.

Re the 14th: I'm reasonably sure that the authors didn't quite expect to create, for good or bad, the modern Court with their "little" alteration.

blake said...

Meh. Hamburger's a hack.

Simon said...

SMGalbraith said...
"I think we all agree that it was little (or not greatly) discussed during the debates over ratification."

Well, for example, in Federalist 78, Hamilton wrote that "the power of the people is superior to both [the courts and the legislature]; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental." And the antifederalist Brutus agreed: he wrote a series of essays between January and March of 1788, highly critical of the proposed judiciary. In his essay of March 20th, he contrasted the proposed Supreme Court with the judges of England in these terms: "their [(the English judiciary's)] power is by no means so extensive as that of the proposed supreme court of the union. I believe they in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution." He went on to object that the Constitution gives the Supreme Court "a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature."

"Given the concerns by the anti-Federalists over this new centralized power, that they didn't raise a great cry over judicial review is a mystery."

It's not much of a mystery, I think, for the very reason you mentioned above. Judicial review posed little threat of centralized power so long as those matters governed by the central authority of the Constitution were fairly limited.

Wherever was it said that the Fourteenth Amendment was a "little" alteration?

SMGalbraith said...

Wherever was it said that the Fourteenth Amendment was a "little" alteration?

Sorry, tongue-in-cheek typing.

Simon said...

Ann, if your point is that "Judicial review is in tension with federalism because some things the states want to do are going to be trumped by judicial enforcement of the Constitution," doesn't that imply a conception of federalism where the states can do what they want without being trumped by enforcement of the Constitution? That strikes me as states' rights - if not in fact antifederalism - not federalism as I think of it. Doesn't federalism require that states will be unable to do some of the things they might like to do, regardless of how those limits are enforced? Judicial review simply enforces Constitutional limits, so doesn't the point multiply out to this: "the Constitution is in tension with federalism because some things the states want to do are going to be trumped by the Constitution"?

Anonymous Blogger said...

Doesn't federalism require that states will be unable to do some of the things they might like to do, regardless of how those limits are enforced?

Isn't this a question you would ask only if you failed to see the tension between judicial review and federalism?

Ann Althouse said...

1. I've loved Neil Hamburger for years.

2. Simon, you've conveniently pre-limited what the term "federalism" means and therefore you avoid the "tension" seen by Posner who hasn't.

Simon said...

Well, then I'd love to hear this definition of federalism - Posner's or anyone else's - in which the states can do whatever they like.

Ann Althouse said...

There is some confusion based on 2 uses of the term. It can be said that "federalism" is just a neutral term to refer to the balance of power between the national and the state level. If you use that, there's no tension because it is whatever it is. But Posner is using it in the stronger sense of valuing retained power by the states. There's no tension between Simon's and Posner's argument if you see that they are using the word differently. BTW, Simon is using the definition preferred by liberals, and Posner is using the one preferred by conservatives. Occasionally, you see federalism used to me the power of the federal government.

Simon said...

"Posner is using it in the stronger sense of valuing retained power by the states."

Sure, but as I pointed out above, judicial review can be used to enforce federalism in that sense too. Judicial review of federal laws in cases like New York, Printz, Seminole Tribe and Lopez defends the retention of robust power by the states against incursion by the federal government.

(Nor am I saying, by the way, that "the balance of power between the national and the state level ... is whatever it is"; I obviously think that there's enforceable content to the balance of power brokered by the Constitution, I just think that the door swings both ways, and that judicial review is conceptually neutral, favoring neither state interests nor federal.)

David said...

Simon--get it straight, will you.

Judicial modesty actually involves never referring to Long Dong Silver again.

Paul Zrimsek said...

I don't want to get embroiled in a debate about the correctness of different definitions-- but wouldn't it be more useful to define "federalism" in a way that allows a sensible person to be in favor of it?

Simon said...

Paul, the problem with that would be, surely, that a term whose definition is manipulated such that no sensible person could be against it is thus meaningless?

Anonymous Blogger said...

Paul, the problem with that would be, surely, that a term whose definition is manipulated such that no sensible person could be against it is thus meaningless?

No. Then it is meaningful! If everyone agrees with it, it is sensible!

Paul Zrimsek said...

Note that not having a belief which no one is in favor of (e.g., that California should be able to print money, impose tariffs, and have its own navy if it likes) is not the same thing as having a belief that everyone is in favor of.

sykes.1 said...

So, where in the Constitution is the Supreme Court given the power of judicial review? I mean explicit language not implication. Explicit as in the Congress' right to declare war. If the Constitution does not contain a clause similar to "The Supreme Court shall have the power to review all federal and state legislation to determine whether it is in compliance with the Constitution," the Marbury IS a usurpation, and the Supreme Court justices should have been hung for treason, and their modern usurpers as well.

By the way, we are in a position where the Presidency has also usurped powers (going to war without a declaration Congress, oh how many times; negotiating binding treaties without Senate approval as in SALT II). Why do we even bother about the Constitution?

Paul Zrimsek said...

What's wrong with implication?

Simon said...

sykes.1 said...
"So, where in the Constitution is the Supreme Court given the power of judicial review? I mean explicit language not implication."

One would not wander around in a densely wooded area claiming that there is no forest because you don't see a sign explicitly saying "this is a forest," and I can't point to any particular tree and say "this tree proves you are in a forest." You must, as they say, see the big picture. The Constitution does not explicitly say "judicial review" - but it does not explicitly say "separation of powers," either, or "federalism." It need not. The structure of the Constitution and the original meaning of its grants of power conclusively and unambiguously establish judicial review, federalism, etc. "The judicial power" was a phrase with meaning (that's Justice Frankfurter's point in Coleman) and giving it to the federal judiciary in a Constitution that is both the supreme law of the land and real law requires judicial determination of the constitutionality of laws (that's Marbury's point).

As a point of reference, you might want to consider that your own second para unmasks the weakness of your position. You complain that "we are in a position where the Presidency has also usurped powers," but where does the Constitution explicitly set the limits on the President's power? All Article II says is that the President has "the executive power." The contours of that power vis-a-vis other Constitutional actors are determined, no less than those of the judicial power are determined, by reference to text, original meaning and structure. There is no text that explicitly says that the President may not go to war without Congress' assent - there is only the implication that he may not from the granting of that power to Congress.

Simon said...

"[R]equires judicial determination of the constitutionality of laws" in an appropriate context, I mean - that is, where the rights of parties to litigation depend on whether a rule in a statute controls or whether the rule in the constitution controls. Where there's a contest, the lawsaying role of the judiciary implicitly requires that the former give way to the latter.

If it makes it easier, think of judicial review as just a nicely dressed up version of preemption. There's no explicit preemption clause - it's implied by the supremacy clause. And when you think about it, most constitutional law is implied not explicit; that's what Marshall was saying in his much-misunderstood remark that we shouldn't forget that it's a constitution we're expounding. Another example: Where in the Constitution does it say that notice and opportunity to be heard? It doesn't, but it does require "due process" and that term imports by reference into the Constitution's rule all that was understood and implied in 1791 by "due process" - such as notice and opportunity to be heard.

All of which is a long way of saying the same thing that Paul said above: so it's implicit. So what? Just saying that it's implicit buys you nothing. The problem with all of these constitutional rights that the Supreme Court have invented down the years isn't that those rights are "implicit" rather than "explicit" - it's that they're neither.