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

• Author: Casto, William R.
• Position: Book review

In The Federalist, James Madison wrote, with characteristic elegance and insight:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. (1) Scott Gerber's A Distinct Judicial Power (2) is a wonderful exploration of one of Madison's "auxiliary precautions."

Professor Gerber traces the evolution of the concept of separation of powers from Aristotle to the creation of the Federal Constitution. In particular, Professor Gerber considers the idea of a judicial branch of government independent from the other branches. The major part of his analysis carefully explores the development of an independent judiciary in each of the original colonies and states. (3)

James Madison surely saw an independent judiciary as one of the "auxiliary precautions" necessary to control the government's exercise of power, but, to him independence was simply a means to an end. One of the Constitution's primary structural precautions against misuse of government power is the separation of powers? If the judiciary is to operate as an effective check on the legislative and the executive branches, the judiciary must have some measure of insulation from the enormous power wielded by the other two branches of government.

In the book's concluding chapter, Professor Gerber takes up the issue of judicial review and convincingly details the relationship between judicial independence and the power to enforce a constitution by nullifying unconstitutional actions. (5) The power of judicial review is an important aspect of constitutional governance, but our modern preoccupation with this power can obscure other, perhaps more important, benefits of judicial independence.

1. AMERICAN PLURALISM

   Pluralism has been a constant in American history from the seventeenth century to the present. To be sure, many colonies (and later states) strove throughout the eighteenth century to ensure a measure of judicial independence. (6) Nevertheless, other colonies and states made no effort to create structural safeguards that would protect judges from executive and legislative intrusions. (7)

   During much of North Carolina's colonial existence, there were constant disputes between the royal governor and the general assembly over control of the courts. (8) In reaction to this experience, the North Carolina Constitution of 1776 explicitly provided "[t]hat the legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other." (9) Moreover, the North Carolina Constitution provided specific structural safeguards to assure judicial independence. The judges of the primary courts were to "hold their offices during good behavior" and to receive "adequate salaries during their continuance in office." (10) Notwithstanding this guarantee, the legislature did not always provide an adequate salary. (11) Some leading North Carolina political figures embraced the concept of judicial review and expressly noted the relationship between judicial review and judicial independence. In 1781, Governor Burke urged that without judicial review "civil liberty would be deprived of its surest defences against the most dangerous usurpations, that is the independency of the Judiciary power and its capacity of protecting Individuals from the operation of Laws unconstitutional and tyrannical." (12) Five years later, James Iredell took the same position. (13)

   New Jersey stands in stark contrast to North Carolina. The New Jersey Constitution of 1776 is a flat rejection of separation of powers. Instead...