About the Book
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.
Table of Contents:
TABLE OF CONTENTS
Preface
A Note on Methodology
I 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
III Judicial Independence, Judicial Review, and Individual Rights
16 Conclusion
Appendix: Popular Constitutionalism-The Contemporary Assault on Judicial Review
Works Cited
Index
About the Author :
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.
Review :
"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
"This is a delightful book...anyone doing research on early American constitutionalism will
undoubtedly be directed to this book, for both content and argument."
--Walter F. Pratt, University of South Carolina
The Journal of American History
"A book that provides all of this knowledge and analysis has never appeared before in one volume. Thus the publication of Scott Gerber's book is very much a landmark. It should be on the bookshelves of political scientists around the world."
-- International Judicial Monitor
"A valuable and elegant book. If you are interested in the development of judicial independence, read this book."
-- Jery Payne, The Colorado Lawyer and Colorado Bar Association
"Beginning with a review of the intellectual history of judicial independence from Aristotle to John Adams, Gerber thoroughly chronicles the rise of protojudicial independence in the original thirteen colonies' foundational texts and practices. Gerber persuasively describes the colonies as lurching toward judicial independence slowly and unevenly, yet steadily."
-- Harvard Law Review
"Gerber's book is by far the most comprehensive examination of the manner by which colonial and state constitutions contributed to the federal Constitution. His study not only highlights the legacy of the aforementioned area to the creation of Article III of the Constitution, but renews interest in the contribution of John Adams to the development of the courts and opens new ground about the relationship between judicial review and judicial independence."
-- Samuel B. Hoff, Department of History, Political Science and Philosophy, Delaware State University, Law and Politics Book Review
"A valuable summary of the development of local judicial institutions that provides a welcome resource for students of the colonial and Revolutionary eras."
-- Edward A. Purcell, Jr., Tulsa Law Review
"There is much to praise in A Distinct Judicial Power. Tracing the history of a separate judicial branch as it developed in America is an important task in itself. Bringing together the experience of every one of the thirteen colonies in the development of its judiciary is a boon to us all."
--Joyce Lee Macolm, George Mason University School of Law
Reason Papers
"Professor Gerber has authored a timely and thorough treatise on judicial review that traces the concept through 3,000 years of political thought. He also has provided an in-depth historical analysis on this country's struggles to create an independent judiciary founded on a compensation and tenure structure not subject to political whim."
--Gerald Rafferty, Colorado Lawyer
"A Distinct Judicial Power now takes its place as the most comprehensive review available of American colonial and early republican constitutional development in all of the original thirteen polities. The politics, jurisprudence, and legislation of each of these nascent states on the eastern seaboard is explored in more comprehensive a manner than anyone has ever done, and there is a wealth of historical materials never before brought together under one cover.
This will now become the indispensable reference for anyone seeking to understand early American conceptions of the judiciary and the rule of law."
--Stephen B. Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law, Ohio Northern University Law Review
"The massive scholarly effort required to complete the long sought history of the emergence of judicial independence in the United States has dissuaded many from the attempt, which makes Scott Douglas Gerber's A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 all the more commendable and a remarkable scholarly achievement."
--Charles A. Kromkowski, Department of Politics, University of Virginia, Ohio Northern University Law Review
