The Origins of an Independent Judiciary in North Carolina, 1663-1787

BY Scott D. Gerber

An independent judiciary is one of the great American contributions to constitutional theory. This Article traces the origins of that idea in North Carolina, one of only a small handful of states to adopt it prior to the Federal Constitution of 1787. Although the North Carolina judiciary did not become independent until the state’s first constitution in 1776, the almost continuous conflict between the executive and the assembly over control of the courts, and the political theorizing that suggested a solution to that conflict, directly influenced the nature of the judicial institution embodied in the state’s original organic law. Significantly, what happened in North Carolina had profound consequences for American constitutional law: in the 1787 case of Bayard v. Singleton, the supreme court of North Carolina became one of the first courts in the United States to exercise the power of judicial review, the ultimate expression of judicial independence. Moreover, a previously unknown non-judicial precedent for judicial review—a 1781 Objection to a court bill by Governor Thomas Burke—suggests that North Carolina was perhaps the first state to fully appreciate the connection between judicial independence and judicial review.

DOWNLOAD PDF | 87 N.C. L. Rev.1771 (2009)