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.
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