Reviewed by Samuel B. Hoff, Department of History, Political Science and Philosophy, Delaware State University. Email: shoff [at] desu.edu.
Scott Douglas Gerber, a professor of law at Ohio Northern University and Senior Research Scholar in Law and Politics at the Social Philosophy and Policy Center, endeavors to identify the origin of Article III of the U.S. Constitution by examining “how the original 13 states and their colonial antecedents treated their respective judiciaries” (Preface, p.xiv). Tapping original documents such as charters and statutes together with state court holdings which preceded the Constitutional Convention of 1787, Gerber divides the text into three parts. He begins with a historical overview of how political philosophers regarded the judiciary as a part of government. Next, he comprehensively reviews the linage of every original state’s court structure and development. In the final section, he offers his own conclusions about influences on judicial review and warns about the pitfalls of practicing popular constitutionalism.
Part I includes two chapters. In Chapter 1, the writings of Aristotle, Polybius, Marsilius of Padua, John Fortescue, Gasparo Contarini, Charles I, Montesquieu, and John Adams are evaluated. Though the earlier philosophers contributed to judicial conceptions, it was Montesquieu who clearly preferred a judiciary on equal footing with the legislative and executive divisions of government, albeit consistent with the English scheme which combined legislative and judicial functions within the House of Lords. Among Americans of the founding period, John Adams was the strongest advocate for creating a separate branch for courts and protecting the independence of the judiciary. Chapter 2 details the move from the Articles of Confederation, which contained no permanent national judiciary, to the 1787 Constitutional Convention, where debates over judicial tenure, method of removal, and salary formed the basis of Article III of the Constitution. These components are in turn utilized to in Part II to determine the influence of each state’s judicial history on the federal model.
Part II encompasses a state-by-state history of court systems. The first three states covered – Virginia, Massachusetts, and New Hampshire – are noted for the precedents set. For instance, Virginia is given credit for having more pre-Constitution cases in which judicial review was exercised than any other state. Though amended many times since its inception, the 1780 Massachusetts constitution is the oldest written constitution still in effect in the world. New Hampshire’s 1784 constitution is second to Massachusetts in longevity, though it is the product of the first-ever convention which permitted popular [*313] ratification of the document, according to Gerber.
In surveying the constitutional history of the remaining original states, Gerber discusses specific reasons for the speed or delay in achieving judicial independence. Maryland passed a law relating to permanent salary of state judges in 1785. The next year, due to an economic depression which hit the state, the law was weakened to permit salary reduction. Connecticut’s lengthy road toward judicial freedom was delayed by the erosion of Puritan doctrine. Rhode Island’s corrupt legislature ostensibly hobbled creation of an independent judiciary. North Carolina, which attained an independent court system earlier that most other states, owed its aggressive approach to a small aristocracy which distrusted executive power. Conversely, South Carolina’s preoccupation with issues of legislative apportionment and qualifications hindered its judicial development once statehood occurred. Whereas New Jersey’s slow move toward judicial independence was because of its commitment to reconciling with Great Britain, New York’s delay can be explained by the extensive fighting which transpired in the state during the American Revolution and by the subsequent split among political forces there. John Dickinson’s influential role at the 1787 Constitutional Convention carried over to state constitutions in Pennsylvania (1790) and Delaware (1792), both of which recognized elements of judicial freedom. Finally, Georgia’s unique location between the northern colonies and Spanish Florida stunted its constitutional development pertaining to courts; it took until 1845 for the state to add a supreme court.
Part III contains the concluding chapter. The first section of this chapter summarizes features associated with state progression toward judicial independence. From the information and table furnished, it is evident that North Carolina and Virginia possessed the strongest traits of a separate judiciary in their initial state constitutions, including a secure salary for judges, lifetime tenure for good behavior, and removal only by impeachment. Conversely, Rhode Island’s charter was silent on all three provisions; Connecticut’s charter stipulated a one-year term for judges and was similarly silent on pay and removal. In assessing judicial review, Gerber holds that colonial and state court cases dealing with the protection of individual rights contributed the most to the concept. However, he also seems to side with those who believe judicial review’s federal origin should be traced to the idea of separation of powers between the national branches of government rather than only to “vertical” development.
In an Appendix following the last chapter, Gerber returns to a topic briefly broached in Chapter 1. He calls out and castigates three influential constitutional scholars for arguing that judicial review should be curtailed or eliminated through popular constitutionalism. He contends that these persons – Mark Tushnet of Harvard Law School, Cass Sunstein of Harvard Law School and the University of Chicago Law School, and Larry Kramer of Stanford Law School – are apparently upset about the conservative direction of the U.S. Supreme Court. Yet, Gerber warns that popular constitutionalism’s tactics, including questioning the validity of 5-4 [*314] votes, preventing decisions on single cases from becoming broad precedents, and attempting to revise certain state court rulings through ballot initiatives, could be practiced against a liberal court as well. He identifies Lawrence Tribe as someone who is similarly concerned about utilizing such procedures and hopes that, “[w]ith any luck, popular constitutionalism will prove but a passing fad” (p.361).
Though Gerber’s book is by far the most comprehensive examination of the manner by which colonial and state constitutions contributed to the federal Constitution, several other books have dealt with the subject in one way or another over the last quarter-century. For instance, Donald Lutz’ 1988 work examines how selected colonial charters influenced later judicial development and traces three “waves” of state constitution drafting from 1776 to 1798. Stephen Griffin’s 1996 book contains a chapter covering the establishment of judicial independence and the origin of judicial review. Christopher Waldrep and Lynne Curry’s 2003 edited volume presents a series of documents and cases which served as a prelude to the Constitution. Finally, John Dinan’s 2009 study specifically focuses on instances of state constitutional conventions over American history and how they have impacted national trends dealing with the judiciary.
As far as challenges to judicial review discussed in the Appendix, it should be noted that other authors beside those mentioned have discussed alternatives to judicial sovereignty. In her 1992 text, Susan Burgess taps the theory of “departmental review” – that each branch of government has the right to interpret the Constitution and that no branch has final authority – to explain reactions to decisions dealing with abortion and war powers. Matthew Franck’s 1996 treatise propagates the view that that contemporary judicial power is based on three erroneous propositions, and that a close reading of the views of political philosophers and the American founders alike will ensure a more accurate and limited conception of Supreme Court jurisdiction.
Gerber’s tendency to state his position within the text on various issues covered may be problematic for some readers. He does this both in agreement and disagreement with other authors. For instance, he disputes the findings of a political scientist who minimizes the contribution of English jurist and political theorist John Fortescue (Chapter 1). He disagrees with law professors who assert that impeachment is not the only method for removing federal judges (Chapter 2). He agrees with other writers who point to the Ten Pound Act cases’ influence on judicial review in New Hampshire (Chapter 5). Finally, he supports certain scholars who contend that Connecticut’s judicial maturation was significantly affected by its Puritan past (Chapter 7). Other than meshing all his personal views into the Appendix, adding a final section to each chapter for such remarks would have prevented the charge that the book resembles a polemic.
There are a few areas of content in need of improvement. Though most information is presented sequentially, the last part of Chapter 6 on Maryland backtracks in discussing its judicial development. Though interesting, the premise that Rhode Island’s judicial [*315] independence was inhibited by political corruption in the legislature is not adequately justified in Chapter 8. Finally, unlike others, Chapter 14 is excessively brief on the background of judicial review in Delaware.
Still, Gerber’s study deserves kudos for its approach and findings. This book contains enough facts about the history of colonial and state courts to fill ten Trivia Pursuit games, though the information should be regarded as anything but insignificant. His study not only highlights the legacy of the aforementioned area to the creation of Article III of the Constitution, but renews interest in the contribution of John Adams to the development of the courts and opens new ground about the relationship between judicial review and judicial independence.
Burgess, Susan R. 1992. Contest for Constitutional Authority: The Abortion and War Powers Debates. Lawrence: University Press of Kansas.
Dinan, John J. 2009. The American State Constitutional Tradition. Lawrence: University Press of Kansas.
Franck, Matthew J. 1996. Against the Imperial Judiciary: The Supreme Court vs. The Sovereignty of the People. Lawrence: University Press of Kansas.
Griffin, Stephen M. 1996. American Constitutionalism: From Theory to Politics. Princeton: Princeton University Press.
Lutz, Donald S. 1988. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press.
Waldrep, Christopher, and Lynne Curry, editors. 2003. The Constitution and the Nation: Establishing the Constitution, 1215-1829. New York: Peter Lang Publishing, Inc.
Copyright 2012 by the author, Samuel B. Hoff.