Over the past century, there has been a sharp debate over judicial review and, more generally, over the role of judges. Do the judges really have a power over constitutional questions? And can they really exercise will in the pursuit of this power? In this first installment of Liberty Forum, Philip Hamburger recovers the common-law meaning of judicial office or duty, distinguishes it from the contemporary understanding of judicial review, and explains its importance for the preservation of liberty.
What is the role of a judge? Should he exercise mere judgment or also, to some degree, legislative will? Should he follow the law of the land or also sometimes higher considerations? And whatever the answers in ordinary cases, should the answers be different in constitutional cases?
Such questions traditionally received different answers from different lawyers, depending on whether they were attracted to the conventional common law vision or a more academic vision. Nowadays, the debate over such questions continues along somewhat similar lines. Neither side, however, fully understands its heritage or what the past experience implies.
On account of the growing dominance of the academic perspective, it is particularly important to recover the traditional common law view. This essay therefore summarizes the common law ideal of judicial office, mostly as it was understood in the seventeenth and eighteenth centuries. The history, it will be seen, presents a very different model of judging than prevails nowadays, including a different approach to judicial independence, the authority of precedents, and what nowadays is called “judicial review.”
The office of a judge was most basically to exercise judgment. Rather than merely a matter of making decisions, this was judgment independent of will.
Judgment was defined in opposition to will. The faculty of will was said to be active, and the faculty of intellect or understanding, including judgment, was said to be passive. Although these powers were believed to reside together in the soul, they were placed in different offices in government, and this reenforced the conclusion that judgment was, by its nature, independent of will.
The model of independent judgment was God himself, and this was perhaps too high a standard for mere men. Whereas God reputedly exercised judgment uninfluenced by his will, a mere human judge might have difficulty confining himself to judgment untainted by his passion or will. Particularly after the Reformation, when Protestants embraced Augustinian fears about human sin and willfulness, common law judges tended to fear that, because they were only human, they inevitably would be subject to their will, passion, or prejudice.
Their recognition of the danger, however, only steeled them to their task. As observed by Chief Justice Matthew Hale, the “office of a judge” was “a necessary office.” Judges therefore were not to resign, let alone resign themselves to exercising will, but rather were do their best to put aside their will and exercise mere judgment.
Chief Justice Edward Coke confidently assumed he could tame his will. The standard Protestant solution to the problem of human willfulness was to suppress and redirect the will toward what was right. On this basis, Coke thought that, although he could not entirely suppress his will, he could direct it toward judgment in accord with the law. This solution, however, was not clearly adequate for judges, as their office required them to exercise judgment completely uncorrupted by will. Hale therefore delved further into the problem.
This most introspective of chief justices worried that, in directing his will toward the exercise of judgment, he still would be exercising will. He therefore remained concerned that the office of a judge “requires an entire absence of affection and passion,” which otherwise “will easily occasion a wresting of judgment.” The underlying theological problem seemed insoluble. If early judges were really to exercise judgment in imitation of God, who exercised judgment entirely without will, then no human judge could rise to the occasion. Agonizing that he was too human–that is, too willful–for judicial office, Hale prayed for God’s mercy and repeatedly cautioned himself against his passions. For example, he recited in his diary that a judge had to have “a temperate mind totally abandoning all manner of passion, affection, and perturbation so that he may come to the business with clearness of understanding and judgment.”
One way or another, the question of judicial independence was ultimately a matter of internal independence in judgment–an internal freedom from one’s own willful fears, desires, and other passions or precommitments. For example, when Coke faced external threats to his independent judgment, he resolutely steeled himself against his anxieties, and he thereby hoped, even without institutional protections, to retain his independent judgment.
Although judges in the next century acquired constitutional guarantees of their tenure and salaries, they remained subject to external blandishments and the full range of internal passions or predispositions, political and personal. It therefore is misleading to assume, as is conventional these days, that judicial independence is merely a matter of constitutional guarantees against external impositions of will. Instead, it remains more profoundly an interior struggle, in which the judge must strive for an inward freedom from the fears, desires, prejudices, and other expressions of will or passion that could threaten his judgment.
The importance of recalling this old ideal has only increased in the past century. Although Protestantism has declined, old Protestant notions of human will have been transformed into a corrosive realism about the inevitability of human will or prejudice, and a romanticized idealism about how judges therefore should pursue it toward higher ends. From this perspective, both Zechariah Chafee and Alexander Bickel, for example, realistically accept that “the man himself is a part of what he decides” and then add that, if “law is the will of the Justices,” it is “the will of the Justices trying to do that which is right.”
A realism about human will or prejudice, however, does not mean that judges must embrace their predispositions–as if their only concern were to choose the right precommitments. Judges for centuries struggled to suppress their will and exercise mere judgment. Although they did not always succeed, they often came close, and they thereby did much to preserve the liberty protected by law.
The Law of the Land
Judicial office required a judge not only to exercise independent judgment but also to follow the law of the land. In the academic study of the civil and canon law–what was known as the “learned law”–it sometimes was said, rather loosely, that judges had a duty to decide secundum ius, that is, according to law or, even more open-endedly, according to right. As early as the twelfth and thirteenth centuries, however, this sort of approach provoked the English to fear for the distinctive features of their law. They therefore soon clarified that their judges should judge in accord with the law of the land.
This requirement appeared most centrally in the judges’ commissions from the Crown, which specified their duty with the clause, “facturi quod ad iustitiam pertinet secundum legem, & consuetudinem Angliæ.” In other words, they were to do that which pertains to justice according to the law and custom of England.
Their office thus did not envision that they would do law in place of justice, but instead required them do justice by following the law. As Coke explained, the law of the land “is the right line, where by justice distributive is guided, and directed,” and “therefore all the commissions . . . have this clause . . . to do justice and right, according to the rule of the law and custom of England.” A century later, Giles Jacob echoed Coke, writing that “all the commissions of judges are bounded with this limitation” and that “judges have not power to judge according to that which they think fit; but that which by law they know to be right.”
The duty of the judges limited them in all aspects of their office, as can be illustrated by their consent decrees. A consent degree was not, in the end, an adversarial proceeding in which the parties presented the full range of arguments, and a judge who issued such a decree therefore could not typically be as confident as in a case that he was deciding in accord with the law. At least, however, because of his duty, he had to refrain from entering a consent decree where he knew it departed from the law: Judges could “not give a judgment which they know would be against the law, although the plaintiff and defendant do agree to have such a judgment given.”
Giving obligation to judicial duty were judicial oaths. The judges of the central common law courts swore simply to serve in their office, and this was specific enough. On account of the nature of their office, it was understood that they were making a commitment to God to exercise judgment in accord with the law of the land. They thereby undertook a heavenly obligation to rest their decisions on the most grounded of laws.
The duty to follow the law of the land did more than define the duty of judges; it also preserved the distinctive path of the common law. Because judges had to adhere to the law of the land, their decisions tended to preserve the distinctive law of their society and the remarkable freedom enjoyed under it. Even when the judges felt royal pressures to follow academic considerations above the law of the land, they largely stuck to their duty. They thereby usually spared their countrymen from the sophisticated academic ideals and tyranny that burdened so much of the Continent.
Judicial office, in other words, kept the judges grounded in the law that arose from their own society. In another sort of society, with another sort of law, their duty would have had less to recommend it. In Anglo-American society, however, the office or duty of the judges became a foundation for both government and liberty under law.
Authority to Expound
At the same time that the common law vision of judicial office confined the judges to following the law, it also established their authority to expound the law. Private individuals have always had to discern the law to avoid violating it in their quotidian activities–for example, to avoid trespassing. Similarly, the legislative and executive parts of government regularly have had to discern or interpret the law in order to understand what they could and could not lawfully do. But only the judges have had an office of judgment–indeed, an office of exercising judgment in accord with the law of the land. The judges therefore have long exercised judgment with a distinctive authority, including a distinctive authority to expound the law.
To be precise, they considered their precedents authoritative evidence of the law. Nowadays it is assumed that precedents are binding almost in the manner of law. The judges, however, traditionally took another view. Their office was one of judgment rather than will. They thus could not make law, and although their judgments bound the parties, their opinions could not bind the public. The judges, however, had an office in which they were required to exercise judgment in expounding the law, and their expositions of law therefore had the authority of their office as evidence of what the law was. On this basis, since at least the seventeenth century, judges conventionally assumed that their precedents were merely evidence of the law. Matthew Hale, for example, explained that where the law was uncertain–where it was in equilibrio–he had to follow precedent.
Although judges often departed from the evidentiary model, it remained the standard assumption about precedent until well into the nineteenth century. Even today, it remains revealing, for it suggests how precedent can recognize the difference between legislative and judicial power and how it can accommodate both continuity and judicial reconsideration. At the very least, it is a reminder that the current vision of precedent, as nearly legally binding, stands far from the views that traditionally prevailed at common law.
Of course, judges enjoyed their authority in expounding the law only while they remained within their office of mere judgment about the law. To go beyond these limits was to run great risks–as the judges of the Virginia Court of Appeals learned when the state legislature in 1788 deprived them of their jurisdiction. At least, however, while judges remained within the narrow confines of their office, they could enjoy independence and the authority to expound the law.
Nowadays, when some judges and academics openly espouse judicial will in accord with considerations above the law, the traditional vision of judicial authority seems all the more relevant. Undoubtedly, the judicial office deserves respect, even when judges make erroneous judgments; but this respect should come in the first place from the judges themselves. When they openly, or otherwise clearly, go beyond mere judgment about the law of the land, they step outside their office and no longer merely expound the law. In such circumstances, it cannot be said that their opinions still enjoy the authority of their office.
Judicial Review or Judicial Duty?
One implication of judicial office was what nowadays is called “judicial review.” When understood as judicial review, a constitutional decision is apt to seem an exercise of a distinct judicial power over the constitutionality of statutes and even over constitutional law. When considered in light of judicial office, however, such a decision is merely a matter of office or duty.
The very label “judicial review” is misleading, for it suggests a distinct judicial role–indeed, a power–apart from the ordinary and general duty of judges. In fact, what is called “judicial review” was merely another application of the judges’ ordinary office–their duty to exercise judgment in accord with the law of the land. Precisely because their office, buttressed by their oath, required them to exercise judgment in accord with the law, the judges had no choice but to hold unconstitutional acts unlawful and void.
On the Continent, many medieval and early modern judges theoretically had a power to go beyond the law of the land in holding enactments void for being unjust. So high a standard, however, was not as binding or concrete as the duty to follow the law of the land, and it therefore left judges with discretion as to whether they should actually hold enactments void. Unsurprisingly, although Continental judges sometimes held customs void, they systematically avoided holding enactments void, preferring instead to use discretionary interpretative techniques to moderate unjust statutes.
In contrast, common law judges were bound to follow the law of the land, and they therefore had long felt obliged to hold even royal acts void. The law of the land offered a firm foundation for limits on government, and the judges had a duty to follow this law rather than a power to rise above it. As a result, although the common law judges could not aim above the law, they at least were constrained to hold government responsible under it.
These days, however, when judges hold statutes unconstitutional, they imagine that they have a sort of power rather than a mere duty. The contemporary vision of judicial power thus comes at the cost of turning the courts into political institutions, which exercise power in competition with the power of the other branches of government.
The courts obviously have a weak position in this contest. It therefore should be no surprise that, although the judges in this era of judicial power have occasionally gone beyond the law in creating some new constitutional rights, they more typically have failed to protect constitutional rights. Indeed, they have retreated from enforcing many of the basic constitutional limits on the federal government. The substitution of judicial power for judicial duty thus has been, at best, a very mixed blessing.
Authority for Constitutional Decisions
The long-standing ideal of judicial office explains why the U.S. Constitution did not authorize a distinct power of judicial review. Troubled by this absence of express constitutional authority, academics often imagine that the judges created their own most significant power for themselves, initially in state cases and then in Marbury v. Madison–as if the judges had to base the power on a founding instance of judicial activism. In fact, it was unnecessary for the Constitution to authorize this power, or for the judges to invent it, because it already could be taken for granted, as a duty, in the very office of a judge.
Medieval English judges already held all sorts of government acts, including local legislative acts, unlawful and void. When the English in the seventeenth century began to understand their government to be limited by their constitution, their judges held government acts unconstitutional, including local and colonial legislative acts. Of course, they could not hold acts of Parliament void, as it was a higher court, but the duty to follow the law was general, and where not impeded by deference to a higher court, it left no room for exceptions.
Significantly, both in the colonial era and afterward, the law did not recognize American legislatures as higher courts. Judges therefore faced no legal obstacles to holding unlawful American statutes void. They did this occasionally before 1776, and more regularly afterward–this being merely what was required by their duty to follow the law. There thus was no need for a revolution in American judging, and judges such as John Marshall simply persisted in the old tradition of holding unlawful acts void. As put by Marshall in Marbury, “[t]his is of the very essence of judicial duty.”
All of this suggests that the current mode of teaching Marbury in terms of “judicial review” is profoundly misleading. Rather than lacking authority in the Constitution, and thus requiring authority from the judges, constitutional decisions arose from the office of a judge. Thus, when the Constitution established judges and the law of the land, it did all that was necessary to authorize judicial decisions holding government acts unlawful and void.
When constitutional decisions are understood as a matter of judicial duty, it becomes clear how much the constitutional role of judges has changed. Indeed, the contrast between the vision of judicial duty and the vision of judicial power clarifies the nature of each.
Nowadays, it is commonplace on the one hand to extol either judicial “activism” or judicial “restraint.” The duty of a judge, however, permitted neither activism nor restraint, but only an unfaltering exercise of judgment in accord with the law of the land. The judges had the law as their measure, and they were neither to go beyond it for the sake of justice nor to hold back from it out of sense of what was politic.
Along the same lines, judicial office did not allow different standards of review. Judges these days distinguish heightened scrutiny and lesser forms of review, thus relying on variable degrees of judgment to shape their understanding of their cases. The judges, however, had a uniform, undifferentiated duty to exercise judgment in accord with the law of the land. Where the law itself imposed different substantive standards or presumptions, the judges had to follow them, but this was a matter of law, not a power to choose different degrees of judgment, scrutiny, or review.
Departures from judicial office are often justified in terms of judicial deference. The office of a judge, however, was one of independent judgment, and judges therefore could not defer to the judgment of another branch of government. When the law itself placed a decision in another part of government–be it the king or Parliament, the president or Congress–the judges had to recognize this, but they thereby ideally were to follow the law, not to defer to someone else’s judgment or power.
More generally, when judges shy away from holding acts unlawful, they sometimes are excused in terms of what Alexander Bickel called the “passive virtues.” Traditionally, however, what was passive was judgment, not the judiciary. Judgment was considered passive in the sense that it was an aspect of intellect or understanding, which stood in contrast to active lawmaking will. But this is not to say that judges could refrain from holding unlawful acts void, as such passivity would be a willful departure from law and duty.
Judicial duty thus left no room for judicial activism, judicial restraint, different standards of review, judicial deference, or the “passive virtues.” Rather than permit these sorts of judicial power, judicial duty bound judges to exercise judgment straightforwardly in accord with the law.
The Academic Critique
Of course, the common law vision of judicial office provoked skepticism, even contempt, among academically minded lawyers. From their learned point of view, the common law vision was both unrealistic and unjust.
It seemed unrealistic, in the first place, because of its inadequate recognition of judicial discretion. The common lawyers answered, however, that there was a difference between discretion in sense of will and discretion in sense of discernment or understanding. Of course, judges had to exercise discretion in the sense of discernment, but not discretion in the sense of will.
The common law vision also seemed unrealistic to its critics for failing to acknowledge that judges regularly must consider matters beyond the law of the land. At common law, however, the question was not whether judges were to look beyond the law, but how they were to do so. The judges, for example, had to follow the law of nations where the law of the land incorporated it, but they could not treat the law of nations as binding on its own. Where the law was uncertain, moreover, they might have to consider its reasonable application and the underlying circumstances to discern what the law required. And where the intent of a statute was uncertain, they had to follow the presumption that the legislature did not intend an unjust rule. The judges thus often relied on matters beyond the law of the land, but they were to do so only as allowed by the law.
Lawyers of an academic bent claimed, unsurprisingly, that the law’s uncertainties were so extensive as to be gaps in which judges had to exercise a discretionary choice or will in deciding what was reasonable or intended. The common law, however, as already noted, confined discretion as much as possible to discernment of the law, and thus, when a judge could no longer understand himself to be merely discerning a common law doctrine or an enactment’s intent, he was to go no further.
This prompted the academically-inclined to protest that, because all law necessarily was incomplete, it was unrealistic and unjust to expect judges to stop where the law came to an end. But such boundaries did not trouble most common lawyers, for they recognized that their law was of limited domain and their judges of limited power. Whereas academic jurisprudence reached for high ideals of justice, the common law more typically aimed to keep the peace and to allow recovery for basic harms, and this limited domain was a large part of the freedom enjoyed under the law. Accordingly, when judges in common law systems really came to the edges of the law of the land, and could go no further in merely discerning it, they ideally were to leave matters be. Where the law came to an end, so too did their office.
By the same token, where the law of the land conflicted with academic ideals of justice, common law judges had to follow the law, and far from being an injustice, this was a foundation of freedom. In the academic vision, the failure of a judge to rise above an unjust law was sometimes assumed to be an injustice. In the common law vision, however, the question came to rest on the deeper justice of having a system of law, and in particular the justice of having laws made by the people themselves. From this perspective, when judges acted above the law of the land, they put at risk the freedom enjoyed under it.
The common law approach to judicial office thus had its own realism and idealism. It was not the caustic academic realism about inevitably willful judges or the high academic idealism about justice. Instead, it was the realism of grounding justice in the law of the land, and the idealism of expecting judges to abide by this law.
Although the common law vision of judicial office has survived for nearly a millennium, it has not fared well during the past century. Largely through the teachings of academic law schools, it is widely disparaged and no longer even well understood. Nonetheless, it should be recalled. If Americans are to enjoy liberty under law, and if they are to live under their own laws, they need judges who understand their office–who understand their duty to exercise judgment in accord with the law of the land.
[all quotations have been modernized, and sources can be found in my book]
Against Oliver Wendell Holmes’ cynical definition of law as “prophecies of what the courts will do in fact,” and the seemingly tamer modern definition of courts as policy-makers, Hamburger restores the common-law judge’s self-understanding that he is bound to decide according to the law of the land.