Wednesday, October 6, 2010

The GW Symposium on Hamburger and Friedman

The current issue of George Washington University Law Review publishes two closely related symposia, one on Philip Hamburger's Law and Judicial Duty and the other on Barry Friedman's The Will of the People. Here are the abstracts and links to the on-line edition.

Ann Althouse, The Historical Ordinariness of Judicial Review
The delightful thing about Philip Hamburger’s Law and Judicial Duty is the acting out—in 600-plus pages—of the surprise that is ordinariness.

We may think that it’s exciting to picture the heroic judge, Chief Justice John Marshall, creating judicial review in Marbury v. Madison. It’s thrilling to imagine the Framers forging a brilliant new system with the judiciary as an independent, coequal branch of government and to extrapolate the powers that ought to be found there to realize that political vision. We feel bold defending the judiciary from naysaying challengers like Alexander Bickel who fret about the “counter-majoritarian difficulty.” We puff ourselves up devising elegant theories about the role of judges in preserving or expanding constitutional rights.

But Professor Hamburger is here to deflate all that grandiosity, to replace it with the grandeur of the ordinary: the judicial role is what it has long been, a matter of duty, fidelity to law, and the recognition that there is a hierarchy in the various sources of law. When we see it this way, judicial review is nothing more than one manifestation of what judges and legal scholars have perceived since medieval times, that within a hierarchy of kinds of law, inferior law in conflict with higher law is a nullity.
Mary Sarah Bilder, Expounding the Law
(We've already noted Professor Bilder's comment here.)
G. Edward White The Lost Origins of American Judicial Review
Philip Hamburger’s Law and Judicial Duty is a considerable achievement. This Essay later undertakes some criticism of it, but this should be understood as engagement with a provocative and substantial piece of work. Hamburger’s research in American archives has been dogged and ingenious; the book, notwithstanding its reliance on arcane sources, is accessible to generalists and well written; and Hamburger’s central thesis is revisionist of conventional wisdom. Although this Essay points out some difficulties with the way in which Hamburger frames issues and the way in which he reads historical sources, those remarks should be understood in the context of my very favorable general reaction.

This Essay begins by situating Law and Judicial Duty in a line of counter-Progressive historical work, which is nearing the status of orthodoxy in American legal history. It then sketches the relationship of Hamburger’s approach to the history of judicial review in America to other influential work on that subject. Finally, it seeks to extract the particularistic vision of the relationship between English and American constitutionalism that informs Hamburger’s conclusions in Law and Judicial Duty, as well as the normative premises embedded in that vision.
Philip Hamburger, A Tale of Two Paradigms: Judicial Review and Judicial Duty
What is the role of judges in holding government acts unconstitutional? The conventional paradigm is “judicial review.” From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called “judicial review” is merely an aspect of the more general duty of judges in all of their decisions.

The difference between these paradigms has contemporary implications. If one assumes the judicial review paradigm, it is difficult to find constitutional authority for constitutional decisions, and it therefore seems that early American judges in the 1780s, and especially after 1789, must have created their own most significant power—as if they lifted themselves up by their bootstraps to achieve a power their constitutions apparently did not give them. The judicial review paradigm thereby implies that constitutional decisions have only a rather contingent authority and that the judges have a remarkable degree of power, including a discretionary power of their own rule.

The other paradigm, in contrast, envisions the judicial role in terms of duty. As traditionally understood by common lawyers, judges have an office of judgment rather than of will—an office, moreover, in which they must decide in accord with the law of the land. From this perspective, judges have no distinct power over the constitutionality of government acts, but rather must make decisions on such matters because it is part of their office or duty.

The implications of this vision are thus diametrically opposite to those of the judicial review paradigm. For example, when considered as a matter of duty, constitutional decisions have the deep, even profound authority of an ordinary exercise of judicial office. At the same time, judges have no power beyond their duty, and they therefore have to make constitutional decisions in the same way as their other decisions, merely in accord with the law of the land.

Which paradigm is to be believed? Well, at least for historical inquiry, the answer must rest on the evidence. This Essay, therefore, evaluates each of the two paradigms in relation to the evidence.
Jenna Bednar, The Dialogic Theory of Judicial Review: A New Social Science Research Agenda
For an institution designed to resolve disagreement, the United States Supreme Court is remarkably good at stirring the pot. Some look to the Court as the rampart that makes democracy’s airy construction possible; it is the essential resistance to majoritarian policy turned oppressive, the bulwark of liberty for minorities. Others point out the consequences of the Court’s countermajoritarian tendency; it will either reject progress like a dowdy schoolmarm, or the opposite, when it legislates from the bench, pushing its unpopular policies on a befuddled and increasingly resentful public.

We have grown so used to this debate about judicial review that we fail to ask the obvious question: what if both sides are wrong? In his remarkable, original book, The Will of the People, Barry Friedman turns the debate inside out. For either side of the conventional debate to be right, the Court would need to defy the popular majority. But as Friedman shows through a careful examination of the Supreme Court’s full history, the Court hews closely to public will, rarely straying from the public’s side and never doing so for long. The Court bounds along, pulling and resisting, but generally it accepts the people’s alpha status. Golly! The Court is the people’s puppy, and the people hold it firmly by the leash.

For us to believe that the people have the Court by a leash, a dialogic theory of judicial review must address three critical details: (1) how the public leashes the Court; (2) how the Court knows the length of its leash (which is necessary for the incentive to have force); and (3) how this behavior and knowledge shape the constitution (small “c”), i.e., the document’s meaning.

None of these three parts makes for an easy argument. This Essay examines each of these components, describing what challenges each pose for social science theory.
William E. Forbath, The Will of the People? Pollsters, Elites, and Other Difficulties
Barry Friedman has written a wonderful book. Brilliant in its narrative detail, The Will of the People ranks among the best one-volume histories of the Supreme Court in United States politics. It recounts two centuries of a complex saga in a way that is sprightly and learned, readable and deep. It rests on formidable primary research and distills and synthesizes a great deal of important work in several fields: American political and constitutional history, constitutional theory, and political science. The Will of the People also sets out its own important and provocative theses, about which this Essay offers a few critical reflections.

The overarching story is one of a happy marriage. After some stormy, troubled years, the Court and the People work out a modus vivendi, a “relatively quiet equilibrium.” The Court provokes the People to focus on constitutional issues; the People do so, and when their considered views clash with the Court’s doctrines, the Court gets the message and alters its doctrines to reflect the People’s will. Over time, the Court became less provocative and less inclined to stray far from mainstream public opinion. Thus, over the course of the nineteenth century, the Court engaged in epic battles against powerful elements in the polity and broadly supported public policies.

By comparison, the New Deal contest, for all its sound and fury, was a milder fray. But the New Deal taught the Court a lesson about holding out too long. The Court’s backing and filling in respect of Roe v. Wade illustrates how well the Court learned that New Deal lesson. By now, Friedman writes, “[t]he [J]ustices . . . can sense trouble and avoid it . . . . [I]f [the People] simply raise a finger, the Court seems to get the message.” It tailors doctrines and adjusts outcomes to fit the outlook of median voters, or at least to avoid their ire. And rightly so, Friedman affirms, if the Justices care about their institutional power and legitimacy.

Whether this is an accurate descriptive account of relations between Court and polity or Court and citizenry, and whether, as Friedman suggests, it also offers an attractive prescriptive model, are questions to which we will return. But in view of the narrative arc he has drawn, Friedman’s conclusion follows: “[W]hen it comes to the Constitution, [the People] are the highest court in the land.” Friedman, in other words, concurs with (and draws generously from) the political scientists who have mapped the modern Court’s relationship to public opinion polls; by their lights, the Court generally is attuned to the will of political majorities, and it molds constitutional law accordingly. Thus, Friedman concludes, the countermajoritarian difficulty that so troubled generations of constitutional scholars is a nonissue.
Richard Primus, Public Consensus as Constitutional Authority
Barry Friedman’s new book The Will of the People attempts to dissolve constitutional law’s countermajoritarian difficulty by showing that, in practice, the Supreme Court does only what the public will tolerate. His account succeeds if “the countermajoritarian difficulty” refers to the threat that courts will run the country in ways that contravene majority preference, but not if the “the countermajoritarian difficulty” refers to the need to explain the legitimate sources of judicial authority in cases where decisions do contravene majority preference. Friedman’s book does not pursue the second possibility, and may suggest that doing so is unimportant, in part because of the limited latitude that public opinion gives the Court and in part because of skepticism about the enterprise of constitutional interpretation. This Essay argues that Supreme Court decisionmaking is important despite being constrained by public opinion and that the constraint of public opinion should sometimes be understood as an aspect of constitutional interpretation rather than as an alternative to it. Public opinion that approaches consensus is better understood as a contributing factor in the calculus of arriving at correct constitutional outcomes than as a force demonstrating the limits (or impossibility) of authentic constitutional interpretation.
Barry Friedman, The Will of the People and the Process of Constitutional Change
Professors Jenna Bednar, William Forbath, and Richard Primus have been more than generous in their comments on The Will of the People. Not simply because their kind words far exceeded the requirements of ordinary politeness when reviewing a book, but because they take much of the argument of The Will of the People as established and then move beyond it to a set of inquiries that really do deserve attention.

Collectively, their comments raise important questions regarding a subject that rests at the heart of The Will of the People: the process of constitutional change. My goal here is to acknowledge and offer some response to those questions. It will be clear that there is much to know and much yet to understand. As Professor Bednar correctly observes, the concluding chapter of The Will of the People raises as many issues as it resolves. The Will of the People was written to change the conversation about judicial review, to shift the focus of the academy. I intended it effectively to set out a research agenda for further inquiry about judicial review.
Update. A post by Marc DeGirolami, St. John's Law, on the exchange between Professors White and Hamburger is here.

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