The Latest on the History of Judicial Review

Mary Sarah Bilder of Boston College has a new essay up on ssrn, "Expounding the Law," which responds to Philip Hamburger's monumental study, Law and Judicial Duty.  Here is Bilder's 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.

You may recall that Bilder is author of the important book on colonial constitutionalism, The Transatlantic Constitution, as well as the Yale Law Journal article, "The Corporate Origins of Judicial Review."

Comments

[Eric Muller]

Someday in the middle future, when a historian looks back on the period stretching from the mid-twentieth-century through (at very least) the early twenty-first, he or she will undoubtedly have something interesting to say about why several successive generations of constitutional law scholars devoted the largest share of their energies to debating, and then debating, and then debating again, the basic question of the legitimacy of the venture they study.

At times it does feel to me that we (and, as a person who teaches this subject and focuses centrally on the legitimacy of judicial review, I include myself) are trapped in a Con Law version of Groundhog Day.