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

Hardcover | May 7, 2011

byScott Douglas Gerber

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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 framingand 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 thejudicial 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 theoriginal 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 theprotection of individual rights.

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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 or...

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...

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Format:HardcoverDimensions:512 pages, 9.25 × 6.12 × 0.98 inPublished:May 7, 2011Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199765871

ISBN - 13:9780199765874

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Table of Contents

PrefaceA Note on MethodologyI The Political Theory of an Independent Judiciary1. The History of Ideas: From Aristotle's Theory of a Mixed Constitution to John 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