"If [the legislature] will positively enact a thing to be done, the judges are not at liberty to reject it, for that were to set the judicial power above that of the legislature, which would be subversive of all government"
About this Quote
Blackstone is drawing a bright, almost jealous line around the judiciary: its job is obedience, not improvisation. The phrasing does a lot of work. "Positively enact" isn’t just “pass a law”; it implies clarity, deliberation, and legitimacy. If the legislature speaks plainly, the judge’s discretion shrinks to near-zero. The sentence is engineered to make resistance sound like a constitutional sin: to "reject it" isn’t framed as principled review, but as a power grab that would "set the judicial power above" elected authority.
The subtext is an anxiety about unelected actors. Blackstone’s world (18th-century Britain) was defined by parliamentary supremacy and a constitution that lived in tradition, statute, and custom rather than a single entrenched document. In that ecosystem, judicial review in the modern American sense would look less like a safeguard and more like a coup in robes. His warning that it would be "subversive of all government" isn’t rhetorical excess so much as a worldview: stable governance depends on a hierarchy in which Parliament’s will is final.
It also quietly narrows the moral imagination of judging. Blackstone doesn’t argue that enacted laws are just, only that judges aren’t "at liberty" to refuse them. Liberty belongs to legislators; judges have duty. That idea traveled, ironically, into American legal culture through Blackstone’s influence, only to be contested by a written Constitution that invites courts to say: some enactments, however “positive,” are beyond the legislature’s power.
The subtext is an anxiety about unelected actors. Blackstone’s world (18th-century Britain) was defined by parliamentary supremacy and a constitution that lived in tradition, statute, and custom rather than a single entrenched document. In that ecosystem, judicial review in the modern American sense would look less like a safeguard and more like a coup in robes. His warning that it would be "subversive of all government" isn’t rhetorical excess so much as a worldview: stable governance depends on a hierarchy in which Parliament’s will is final.
It also quietly narrows the moral imagination of judging. Blackstone doesn’t argue that enacted laws are just, only that judges aren’t "at liberty" to refuse them. Liberty belongs to legislators; judges have duty. That idea traveled, ironically, into American legal culture through Blackstone’s influence, only to be contested by a written Constitution that invites courts to say: some enactments, however “positive,” are beyond the legislature’s power.
Quote Details
| Topic | Justice |
|---|
More Quotes by William
Add to List
