Bench Memos

Philip Hamburger’s Law and Judicial Duty

I’ve been hoping to find time to write about law professor Philip Hamburger’s outstanding new book Law and Judicial Duty, which explores the history of what we now call “judicial review”, but amidst the election campaign and my intensive year-end institutional responsibilities as head of the Ethics and Public Policy Center (your help is welcome here), I haven’t succeeded.  I will therefore refer interested readers to Volokh Conspiracy contributor Jim Lindgren’s ongoing series of posts about the book, which Lindgren calls the “best law book I read this year”.  His first three posts are here, here, and here.  I still hope to add at some point my own commentary, including about the implications of Hamburger’s thesis for the modern battle over the proper role of the courts.

Hamburger previously authored the magisterial Separation of Church and State (Harvard University Press 2002), in which he shows in exhaustive detail that “modern suppositions about the wisdom and influence of Jefferson’s words regarding separation have developed largely as a twentieth-century myth—an account that has become popular precisely because it has seemed to provide constitutional authority for separation.”

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