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


ISBN13: 9780199765874
Published: May 2011
Publisher: Oxford University Press USA
Country of Publication: USA
Format: Hardback
Price: £75.00



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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 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.

Subjects:
Legal History, Other Jurisdictions , USA
Contents:
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.