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Edlin, JUDGES AND UNJUST LAWS

By Jack M. Balkin

Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review presents a well-written, well-researched argument that common law judicial review has historically existed alongside of constitutional judicial review in the United States and that common law judicial review continues playing a central role in English jurisprudence as well. Professor Douglas Edlin of Dickinson College convincingly argues that two forms of judicial review existed at the time Marbury v. Madison (1803) was decided. The first, constitutional review, is well known and consisted of justices determining whether state and federal laws were consistent with newly adopted constitutional texts. The second, common law review, is less well known and consisted of justices determining whether state and federal laws were consistent with common law principles (or certain fundamental principles of justice). This is an extremely important distinction and conclusion, one that helps clarifies a number of puzzles about early American judicial practice. Scholars have noted that many early judicial decisions striking down state and federal laws rely on both constitutional and non-constitutional sources. The standard explanation for this is that late eighteenth century justices were ambivalent about the legitimate sources of constitutional review. They had not yet determined what sources could be used when declaring laws unconstitutional. Professor Edlin offers a better explanation, one I think is far more consistent with the surviving texts. Justices at the time Marbury was decided employed both constitutional and non-constitutional sources when striking down federal laws because they had both constitutional and non-constitutional (common law) grounds for striking down laws. American judges in the late eighteenth and early nineteenth centuries were not feeling their way to the entirely unprecedented practice of constitutional review. They were adopting a new practice, constitutional review, along side of an inherited practice, common law review.

The argument for common law review is well made. Professor Edlin relies on the right sources. His work places particular emphasis on Bonham?s Case and a series of early South Carolina decisions striking down state laws. Judges and Unjust Laws offers convincing interpretations of those sources. Professor Edlin?s analysis of Bonham is particularly good. Juxtaposing Lord Coke?s decision in that case with Coke?s other activities at the time makes clear that the decision was not simply a matter of statutory interpretation, but some form of judicial review. I think his reading of the early state judicial review cases is also correct. As he points out, the language in the relevant opinions is more about fundamental legal principles than constitutional text. South Carolinian justices were not going to transfer Blackacre from A to B, and they believed the roots of this prohibition were more common law than constitutional. More generally, Professor Edlin is clearly well read in the early common law and constitutional sources. Even experts who disagree with some of his conclusions will learn a good deal from the work.

I confess to being convinced that Professor Edlin has demonstrated a common law obligation to improve the law. Bonham does not speak of that obligation and neither do the early state and federal cases that he cites. Rather, these cases speak of time-honored common law principles that the justices are upholding. The law, in this view, is not being improved. Rather, the justices are preventing backsliding or corruption. To be fair, Professor Edlin does present a few cases in which the justices assert that the common law works itself pure, and this is a theme in common law judging. See especially Lord Mansfield s influential decisions on this score. Still, particularly in cases in which statutes are voided on common law grounds, the judicial emphasis seems to be on holding legislation up to existing common law principles rather than in improving the principles themselves.

Regardless of this quibbles, persons who read Judges and Unjust Laws will find themselves much smarter having encountered an interesting and original mind. If the role of the philosopher, as E.B. White suggested, is to add to the number of ideas available to human beings, Professor Edlin has more than done is scholarly duty.

Full post as published by Balkinization on March 16, 2009 (boomark / email).