IF MEN WERE ANGELS

Scott Gerber's "A Distinct Judicial Power" is a wonderful exploration of one of Madison's auxiliary precautions. 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. One of the Constitution's primary structural precautions against misuse of government power is the separation of powers. 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. The power of judicial review is an important aspect of constitutional governance, but the US modern preoccupation with this power can obscure other, perhaps more important, benefits of judicial independence.