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.