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Jurisprudence Commons

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Courts

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2011

Selected Works

Constitutionalism

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Full-Text Articles in Jurisprudence

Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder Sep 2011

Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder

Mary Sarah Bilder

Written as a comment on Philip Hamburger's book, Law and Judicial Duty, this essay explains why the history of judicial review remains a difficult area for scholarship. American judicial tradition espoused that judges had an obligation to declare as void laws repugnant to the constitution. The essay suggests that the source of this duty, as well as the meaning of both the constitution and laws of the land, changed over time. The essay proposes that scholars perceived American judicial review as problematic only when this tradition conflicted with an increasingly rigid belief in separation of powers. The essay concludes ...