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A Distinct Judicial Power - The Origins of an Independent Judiciary, 1606-1787 (Hardcover)
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A Distinct Judicial Power - The Origins of an Independent Judiciary, 1606-1787 (Hardcover)
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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.
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