Thursday, July 08, 2010

Candy for law nerds

TNR reposts a 1958 review by Alex Bickel of Judge Hand's Holmes Lecture of that year, discussing judicial review -- both Hand's doctrine of virtual abstention therefrom, and Bickel's effort to justify the Court's practice.

Difficult to summarize, but it's interesting to note one option not seriously on the table in 1958:
The origins of the power of judicial review in the intent of the framers of the Constitution are no doubt uncertain; but it is not universally recognized as true that the framers had in mind only the narrow need of preventing "the failure of the undertaking" by keeping the several departments of the government from stepping all over each other. Various opinions were held by the framers. None can be said to have been adopted to the exclusion of the others. Normally, since it is a constitution we are expounding, this is a condition that leaves posterity relatively free to meet its needs as they arise.
So one might think.


  1. There's also this: what if it's absolutely clear from the historical evidence that the original intent of the framers was that the original intent of the framers would not control the construction of the constitution? There's really only one way to pretend away that (absoultely unequivocal) evidence, is there-- by saying "we are going to ignore everything that seems to be legislative history."

  2. ok anderson, your word verification is driving me nuts. If I don't have my reading glasses on, there's about a 40% shot I'm going to get it wrong. There's a limited number of clicks I'm willing to click to have the privilege of commenting here!!?!

  3. I hate the damn thing too, but it does keep spam away.