A Distinct Judicial Power

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 CONTENTSPrefaceA Note on MethodologyI The Political Theory of an Independent Judiciary1 The History of Ideas: From Aristotle's Theory of a Mixed Constitution toJohn Adams's Modifications of Montesquieu2 Article III of the Constitution of the United StatesII The Judicial Power in the Original Thirteen States and Their Colonial Antecedents3 Virginia: Constitutionalizing Judicial Independence Prior to the U.S. Constitution4 Massachusetts: A "Safety-Valve" Theory of Judicial Independence5 New Hampshire: Judicial Review in the Rockingham County Inferior Court6 Maryland: Chancellor Theodorick Bland and Salaries that "ought to be secured"7 Connecticut: Disestablishment and Judicial Independence8 Rhode Island: Last Bastion of Legislative Supremacy9 North Carolina: Governor Thomas Burke and the Origins of Judicial Review10 South Carolina: Judicial Review without an Independent Judiciary11 New Jersey: The First State Court Precedent for Judicial Review12 New York: Persistent Threats to Judicial Independence13 Pennsylvania: (Almost) Adopting the Federal Model14 Delaware: A High Court of Errors and Appeals15 Georgia: Ineffective and Dependent JudgesIII Judicial Independence, Judicial Review, and Individual Rights16 ConclusionAppendix: Popular Constitutionalism-The Contemporary Assault on Judicial ReviewWorks CitedIndex