A Distinct Judicial Power The Origins of an Independent Judiciary, 1606-1787

Author: Scott Douglas Gerber
Publisher: Oxford University Press USA
ISBN: 9780199765874
Published In: May 2011
Format: Hardback , 440 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Provides the first comprehensive exegesis of the origins of judicial independence in the United States
Brings together a wealth of information (charters, instructions, statutes, etc.) about the judicial power between 1606 and 1787, and sometimes beyond, which allows the reader to more easily understand the concepts
Discusses pre-Marbury v. Madison precedents for judicial review, including several previously unknown precedents
Articulates a new theory about the origins of judicial review: one that emphasizes the connection between judicial review and the rise of judicial independence
Provides a devastating critique of popular constitutionalism, an influential theory of constitutional interpretation that argues that judicial review should be drastically limited or eliminated altogether

A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787, by Scott Douglas Gerber, provides the first comprehensive critical analysis of the origins of judicial independence in the United States. Part I examines the political theory of an independent judiciary. Gerber begins chapter 1 by tracing the intellectual origins of a distinct judicial power from Aristotle's theory of a mixed constitution to John Adams's modifications of Montesquieu. Chapter 2 describes the debates during the framing and ratification of the federal Constitution regarding the independence of the federal judiciary. Part II, the bulk of the book, chronicles how each of the original thirteen states and their colonial antecedents treated their respective judiciaries. This portion, presented in thirteen separate chapters, brings together a wealth of information (charters, instructions, statutes, etc.) about the judicial power between 1606 and 1787, and sometimes beyond. Part III, the concluding segment, explores the influence the colonial and early state experiences had on the federal model that followed and on the nature of the regime itself. It explains how the political theory of an independent judiciary examined in Part I, and the various experiences of the original thirteen states and their colonial antecedents chronicled in Part II, culminated in Article III of the U.S. Constitution. It also explains how the principle of judicial independence embodied by Article III made the doctrine of judicial review possible, and committed that doctrine to the protection of individual rights.

Readership: Professors, students, scholars, etc. of legal history, constitutional law, political science

Preface

A Note on Methodology

The Political Theory of an Independent Judiciary

1: The History of Ideas: From Aristotle's Theory of a Mixed Constitution to John Adams's Modifications of Montesquieu

2: Article III of the Constitution of the United States

II The Judicial Power in the Original Thirteen States and Their Colonial Antecedents

3: Virginia: Constitutionalizing Judicial Independence Prior to the U.S. Constitution

4: Massachusetts: A "Safety-Valve" Theory of Judicial Independence

5: New Hampshire: Judicial Review in the Rockingham County Inferior Court

6: Maryland: Chancellor Theodorick Bland and Salaries that "ought to be secured"

7: Connecticut: Disestablishment and Judicial Independence

8: Rhode Island: Last Bastion of Legislative Supremacy

9: North Carolina: Governor Thomas Burke and the Origins of Judicial Review

10: South Carolina: Judicial Review without an Independent Judiciary

11: New Jersey: The First State Court Precedent for Judicial Review

12: New York: Persistent Threats to Judicial Independence

13: Pennsylvania: (Almost) Adopting the Federal Model

14: Delaware: A High Court of Errors and Appeals

15: Georgia: Ineffective and Dependent Judges

Judicial Independence, Judicial Review, and Individual Rights

16: Conclusion

Appendix: Popular Constitutionalism-The Contemporary Assault on Judicial Review

Works Cited

Index

Scott Douglas Gerber is Professor of Law at Ohio Northern University and Senior Research Scholar in Law and Politics at the Social Philosophy and Policy Center. He teaches constitutional law and American legal history. He received both his Ph.D. and J.D. from the University of Virginia, and his B.A. from the College of William and Mary. His previous books include: The Declaration of Independence: Origins and Impact;First Principles: The Jurisprudence of Clarence Thomas; Seriatim: The Supreme Court Before John Marshall; and To Secure These Rights: The Declaration of Independence and Constitutional Interpretation. He has also published two novels.

"A deeply researched study of a much neglected subject - the origins of an independent judiciary."
--Gordon S. Wood, Alva O. Way University Professor Emeritus and Professor of History Emeritus, Brown University

"Today we think of the independent judiciary as one of the safeguards of a free society. But its origins are complex and often ill-understood. Scott Gerber does a great public service by tying together all the loose strands on this issue, from ancient times through the end of the colonial period. Historians, constitutional scholars, and the public at large will profit by reading this thoroughly researched and clearly presented book."
--Richard A. Epstein
Laurence A. Tisch Professor of Law, New York University School of Law

"Though judicial independence is usually regarded to be a good thing, it is not at all clear why political leaders would necessarily support its emergence or, afterward, accept controversial displays of such independence. Its emergence must be explained rather than taken for granted. To achieve this objective, Scott Douglas Gerber provides fascinating analyses that reveal the different paths taken toward judicial independence in the various American colonies (and future states) prior to the American Revolution and drafting of the Constitution. This book will interest any student of American legal institutions."
--Sanford V. Levinson, W. St. John Garwood, Jr. Centennial Chair and Professor of Law and Government, University of Texas at Austin