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

by Gerber, Scott Douglas

• ISBN13: 9780199896875
• ISBN10: 0199896879
• Format: eBook
• Copyright: 2011-09-01
• Publisher: Oxford University Press

Summary

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.

Author Biography

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.

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