Book Review: A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–1787 (Gerber)

A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–1787. By Scott Douglas Gerber. (New York: Oxford University Press)

This is a delightful book. Scott Douglas Gerber acknowledges from the start that he has been an active participant in debates about the proper role of the federal judiciary in the American system of government. He opposes what he identifies as a heavily supported contemporary concept of “popular constitutionalism” ( p. 3). Thus, he writes: “The principal aim of my book is to shed light on the federal model by exploring the experiences of the original states. My objective, quite simply, is to identify the origins of Article III” ( pp. xiv–xv). He has a secondary purpose, one that follows closely after the origins, the matter of defining judges’ duties, with special attention to their power of judicial review. From that general intention, Gerber moves easily into a history of the notion of judicial review. Beginning with Aristotle, Gerber tracks the emergence of that notion and concludes with John Adams. Of Adams, Gerber writes that he was “the American founding’s most sophisticated, political theorist” ( p. 24). Thus, even though Adams was not at the 1787 Philadelphia convention, Gerber closes the first part of his book by noting the important role that Adams played in the debates about the Constitution.

In the almost three hundred pages that follow, Gerber describes in detail the processes by which each state reached the conclusion that an independent judiciary was a critical part of its new status. That it took some states into the nineteenth century (Connecticut in 1818, for example) should not be a surprise to anyone. Others, such as New Jersey (1947) and Rhode Island (2004), may be a surprise, though their lateness serves to support what Gerber notes near the start of the book—that debate about the judiciary is ongoing.

In the end, Gerber presents a short appendix “to demonstrate that popular constitutionalism is wrong.” Like in most of Gerber’s other books, the appendix is divided into topical sections, each containing the core of a response to an argument or another discrete point. The encyclopedic character of the book places it comfortably within Oxford University Press’s collection.

Having Gerber return to his own participation in the debate brings us back to the beginning of this review, where the book is described as “delightful.” Another description might have been “charming.” On a level separate from Gerber’s debate is the prodigious amount of research evidenced in the long middle of his book. Anyone doing research on early American constitutionalism will undoubtedly be directed to this book, for both content and argument. Those starting their work with this book would also be wise to note the textual material. Repeatedly, Gerber thanks someone on the opposing side, in the “popular constitutionalism” camp. He offers thanks and appreciation for those who read the manuscript and offered comments, even those who have different conclusions than his. To say that is an example for all to follow is an understatement.

Walter F. Pratt
University of South Carolina
Columbia, South Carolina

doi: 10.1093/jahist/jas175


We thank Scott Gerber for the pointer.

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