Legal Commentary

Judge Richard Posner on Philip Hamburger on judicial review.

Hamburger believes deeply in judicial modesty. He argues that what has come to be called judicial review was intended to exemplify rather than to reject judicial modesty, which is why the framers of the Constitution took the power for granted, and so felt no need to talk it up in the constitutional text....

There is a deep ambiguity in the concept of judicial modesty. Hamburger advocates strict adherence to formal legal doctrines. That is a form of intellectual modesty: no policymaking, no talk of a "living constitution," let the chips fall where they may, fiat iustitia, ruat caelum. An alternative conception of judicial modesty, first clearly articulated by James Bradley Thayer in the late nineteenth century and embraced by Oliver Wendell Holmes, focuses on the consequences for democracy, liberty, progress, and welfare of too free-wheeling a conception of judicial power to invalidate legislation....

Hamburger has fallen in love with the judicial culture that he found in the Anglo-American past, and that he hates the modern judicial culture that is discontinuous with it.

Full post as published by Althouse on January 15, 2009 (boomark / email).