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Presser, Stephen B.

Ohio Northern University Law Review 
Volume 39 Issue 1 Article 7 
2023 
Another Return to “First Principles” 
Stephen B. Presser 
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Presser, Stephen B. (2023) "Another Return to “First Principles”," Ohio Northern University Law Review: Vol. 
39: Iss. 1, Article 7. 
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323 
Another Return to “First Principles” 
STEPHEN B. PRESSER

 
Scott Douglas Gerber likes to write on “First Principles.”  His path-
breaking work on the jurisprudence of Clarence Thomas (Gerber was one of 
the first to overcome the legal academy’s rather overwhelming prejudice 
against Justice Thomas, and to demonstrate the depth and breadth of 
Thomas’s constitutional vision) was given that explicit title,
1
 and now, with 
the publication of his Oxford University Press book, A Distinct Judicial 
Power: The Origins of an Independent Judiciary, 1606-1787, Gerber has 
given us a major work on the very foundations of the rule of law in 
America.
2
  It is an honor to be invited to contribute comments on Gerber’s 
book, it is a delight to see my own law school recognize Gerber’s 
contribution, and it is a pleasure to be one of the thirteen persons to whom 
this latest work of Gerber’s is dedicated.  I do not pretend to have any sort 
of objectivity here—I have been encouraging Gerber’s teaching and 
scholarship for most of his career, and I find his to be one of the most 
refreshing voices in the legal academy.  Gerber is not exactly a 
conservative, nor is he a traditional academic liberal, but he is something 
perhaps even rarer—a scholar of deep intellectual honesty, not afraid to 
buck the trends of legal academic popularity. 
Gerber, like many of us, appears disturbed by a failure on the part of 
many current constitutional law professors to be disturbed by the manner in 
which our courts, and the Supreme Court of the United States in particular, 
appear to be making it up as they go along, with relatively little attention 
paid to the original understanding of the Constitution, or to the First 
Principles that our eighteenth-century Founders believed were crucial to any 
polity that purported to be a government of laws, not men.
3
  Thus, to remind 
us of what we may now be missing, A Distinct Judicial Power goes back to 
  
  Raoul Berger Professor of Legal History, Northwestern University School of Law; Professor 
of Business Law, Kellogg School of Management, Northwestern University; Harvard College AB 1968; 
Harvard Law School JD 1971.  A version of these remarks was originally delivered at a Symposium on 
Gerber’s book organized by the Harvard Law School Federalist Society, and held in Cambridge, Massa-
chusetts, on March 29, 2011. 
 1. See generally SCOTT DOUGLAS GERBER, FIRST PRINCIPLES: THE JURISPRUDENCE OF 
CLARENCE THOMAS (1999) [hereinafter GERBER, FIRST PRINCIPLES]. 
 2. SCOTT DOUGLAS GERBER, A DISTINCT JUDICIAL POWER: THE ORIGINS OF AN INDEPENDENT 
JUDICIARY, 1606-1787 (2011) [hereinafter GERBER, A DISTINCT JUDICIAL POWER].   
 3. See generally id. at 41-321. 
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324 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 
the beginnings and explores the effort to implement the First Principles of 
the rule of law in the thirteen colonies and in the early republic.
4
  For my 
purpose—a short summary of Gerber’s book, and the reasons for its 
importance at this time in our history—the most important of those First 
Principles are two: 1) the notion, advanced by Montesquieu that liberty is 
best preserved if there is a separation of the legislative, executive, and 
judicial powers,
5
 and 2) the idea that for the separation of powers to be 
effective the judiciary must be guaranteed independence through the 
provision of good behavior tenure, guaranteed salaries not subject to 
legislative reduction, and the capability of holding void legislative or 
executive acts that exceed the permissible bounds under the Constitution.
6
   
A Distinct Judicial Power now takes its place as the most 
comprehensive review available of American colonial and early republican 
constitutional development in all of the original thirteen polities.  The 
politics, jurisprudence, and legislation of each of these nascent states on the 
eastern seaboard is explored in more comprehensive a manner than anyone 
has ever done, and there is a wealth of historical materials never before 
brought together under one cover.
7
  This will now become the indispensable 
reference for anyone seeking to understand early American conceptions of 
the judiciary and the rule of law.  But it is not simply the ink-stained 
drudges of the constitutional and legal history fraternity who will owe a 
debt to GerberA Distinct Judicial Power ought to serve to remind all of us 
interested in the principles of good government and citizenship of the 
seminal importance of late eighteenth century ruminations such as John 
Adams’s Thoughts on Government (1776),
8
 and the “Essex Result” [or 
Resolves] (1778),
9
 two simple and powerful statements, riffing on 
Montesquieu’s notions and ruminating on the manner in which a republic 
ought to operate.   
Examining the manner in which the Thoughts on Government, Essex 
Resolves, and other similar writings influenced the formation of the state 
  
 4. See generally id. 
 5. See THE FEDERALIST NO. 78 (Alexander Hamilton) (for the most important enduring state-
ment of this idea of Montesquieu’s and its influence on the American Constitution). 
 6. See GERBER, A DISTINCT JUDICIAL POWER, supra note 2, at 21-23, 27-37. 
 7. See id. at 41-321. 
 8. See generally John Adams, Thoughts on Government, in 1 THE FOUNDERS’ CONSTITUTION 
107 (Philip B. Kurland & Ralph Lerner eds., 1986), available at http://press-
pubs.uchicago.edu/founders/print_documents/v1ch4s5.html. 
 9. Gerber refers to this work as the Essex Resolves, but it is also known as the Essex Result.  
See GERBER, A DISTINCT JUDICIAL POWER, supra note 2, at 86, 112.  See generally The Essex Result 
April 29, 1778, in THE AMERICAN REPUBLIC: PRIMARY SOURCES 205 (Bruce Frohnen ed., 2002), avail-
able at http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=669&chapter 
=206162&layout=html&Itemid=27.  
2
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2012] ANOTHER RETURN TO “FIRST PRINCIPLES” 325 
and federal constitutions, Gerber does not simply explore the way in which 
they informed the conceptions of an independent judiciary, but much more 
importantly, Gerber explains the reason for the profound concern with late-
eighteenth century judicial independence, namely the preservation of God-
given natural rights (life, liberty, property, and the pursuit of happiness) and 
the belief that only the rule of law and true republican government could 
secure them.
10
  Here, of course, Gerber is continuing a study felicitously 
begun in his earlier work demonstrating how the ideas of the Declaration of 
Independence came to fruition in the Constitution of 1787.
11
   
Eighteenth-century Americans were aware that it is always prudent to 
recur to First Principles, but the time for such reflection has never been 
greater than at the present.  Many thoughtful Americans, it seems to me, 
might properly wonder whether now, in the beginning of the twenty-first 
century, we still have the rule of law, natural rights, and republican 
government.  One could point to a myriad of political and judicial 
conundrums that lead to such doubt, but to pick just one, it seems to me that 
all of this was involved in the struggle over the constitutionality of the 
Patient Protection and Affordable Care Act.
12
  If, as expected, the Supreme 
Court of the United States agrees to settle the controversy now roiling the 
federal district and courts of appeals over the status of the Act’s individual 
mandate, which, for the first time in history, requires virtually all adult 
Americans to purchase a product from private parties, we will soon know to 
what extent the protection of private property and the concept of limited 
government and the rule of law have any continued validity.
13
  The Court 
will be required to tell us, for example, whether the Tenth Amendment’s 
purported guarantee that the federal government is one of limited and 
enumerated powers is as robust as many of us have hoped, and additionally, 
whether our government might best be understood as a mechanism for 
rewarding favored political constituencies or, as the framers wanted, for 
rewarding civic virtue.
14
   
  
 10. See GERBER, A DISTINCT JUDICIAL POWER, supra note 2, at 336-43. 
 11. See SCOTT DOUGLAS GERBER, TO SECURE THESE RIGHTS: THE DECLARATION OF 
INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION 19-90 (1995) [hereinafter GERBER, TO SECURE 
THESE RIGHTS].  
 12. See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat 119 (2010).  
The Act was upheld by the Supreme Court of the United States in National Federation of International 
Business v. Sebelius, 132 S.Ct. 2566 (2012).  This Commentary was written prior to the Supreme Court’s 
decision upholding the Act. 
 13. Pub. L. No. 111-148, 124 Stat 119. 
 14. See U.S. CONST. amend. X.  For my own take on these enduring problems, perhaps a bit more 
polemical than that of Gerber’s, see generally STEPHEN B. PRESSER, RECAPTURING THE CONSTITUTION: 
RACE, RELIGION AND ABORTION RECONSIDERED (1994). 
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326 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 
Looking at measures such as the Patient Protection and Affordable Care 
Act, and its individual mandate, one might well wonder whether we still 
have the respect for private property the framers wanted, or whether we are 
now more committed, as a society, to the goal of redistribution of national 
wealth and resources.  A curmudgeonly conservative could, with some 
justification, worry about the continuing existence of the framers’ 
conceptions of government as a means of preserving the rights of person 
and property, the theme of virtually all of Gerber’s work to date, and this 
book in particular.
15
  Which is not to say that Gerber is unaware that 
curmudgeonly conservatism like mine is not the only appropriate posture 
for constitutional jurisprudence.  Indeed, one could  look at some recent 
Supreme Court decisions such as Citizens United v. Federal Election 
Commission
16
 and conclude that that the Court is too committed to the 
preservation of private property, especially that owned by corporations.
17
  
One of the things that I have long admired about Gerber’s scholarship is 
that he is deeply aware of the nexus between politics, constitutional 
interpretation, and academic discourse.  For me, as important as his 
historical research for this book is, it is his wonderful Appendix, where he 
considers current threats to judicial independence and the rule of law, that 
has the most immediate impact.
18
  Thus, A Distinct Judicial Power can be, 
and perhaps should be, read as a broadside against the concept of “popular 
constitutionalism,” as it is expressed, for example, in the work of such law 
professors as Larry Kramer,
19
 Mark Tushnet,
20
 and Cass Sunstein.
21
  These 
three are serious scholars and deep thinkers, and I am quite proud to number 
them among my friends and acquaintances, but I, and Gerber (I think), have 
some trouble with the essence of their thought, which seems to be that, 
ultimately, contemporary constitutional interpretation ought not really to be 
the preservation of an independent judiciary, but should be lodged, at least 
partially, in the hands of the public itself.   
  
 15. See generally GERBER, A DISTINCT JUDICIAL POWER, supra note 2; GERBER, FIRST 
PRINCIPLES, supra note 1; GERBER, TO SECURE THESE RIGHTS, supra note 11. 
 16. 130 S. Ct. 876 (2010). 
 17. See Citizens United v. FEC, 130 S. Ct. at 886, 917 (expansively holding that corporations 
possessed First Amendment Rights to express preferences for candidates for political office, and striking 
down restrictions that barred corporate advertising critical of political candidates within a time close to 
elections). 
 18. See GERBER, A DISTINCT JUDICIAL POWER, supra note 2, at 345-61. 
 19. See generally LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR 
CONSTITUTIONALISM AND JUDICIAL REVIEW (2004). 
 20. See generally Mark Tushnet, Popular Constitutionalism as Political Law, 81 CHI.-KENT L. 
REV. 991, 991-1006 (2006) (defending Kramer’s notion of popular constitutionalism). 
 21. See generally CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING 
COURTS ARE WRONG FOR AMERICA (2005) (a polemic against conservative principles of judicial inter-
pretation). 
4
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2012] ANOTHER RETURN TO “FIRST PRINCIPLES” 327 
True it is that “We the People” are the group that ostensibly accepted 
the Constitution, but, nevertheless, surely it is not radical to suggest, as 
Gerber does, that if we really take popular constitutionalism seriously, there 
is an end to the rule of law, republican government, and an independent 
judiciary.  Perhaps Gerber even shares my concern that all this talk of 
“popular constitutionalism” is really just a means of undercutting the power 
and influence of the current five-person conservative majority on the United 
States Supreme Court.  I think it is no coincidence, for example, that Cass 
Sunstein was one of the architects of the political left’s 2006 broadside 
against the “judicial ideology” of the Bush nominees to the Court, and to the 
lower courts, which I, at least, regard as a sorry chapter in our political 
discourse.
22
  The attempt to delegitimize the Court’s five-person 
conservative majority is, it would seem, a possible pre-emptive strike 
against a decision tossing out the Patient Protection and Affordable Care 
Act or a broadside against Citizens United.
23
  
A book like A Distinct Judicial Power, and a scholar like Gerber, 
perform the invaluable service of reminding us that the purpose of an 
independent judiciary is actually to protect the people from themselves, and 
true proponents of the rule of law, like Gerber, are aware that “popular 
constitutionalism” might be a prescription for tyranny.  After all, it certainly 
can be argued that the purpose of the 1787 Constitution was to diminish the 
influence of the state legislatures who seemed bent, in the 1780s, on 
embarking on a program of suspending debts, interfering with contracts, and 
issuing increasingly inflationary paper money.
24
  That document, still the 
frame of our federal government, was to establish a means of promoting 
commercial activity and making the country safe for entrepreneurs, for 
finance, and for the stability of private property and contract rights.  Some 
of us do believe that this original conception of the Constitution is still the 
appropriate one, and that this good old Constitution (or, if you like, “The 
Constitution in Exile”
25
) is hostile to fundamental efforts at redistribution, 
such as the Patient Protection and Affordable Care Act.  And while it may 
not have been the primary concern of the Constitution’s framers and 
proponents, the Tenth Amendment reminds us that those framers and 
  
 22. On this alarming episode, see generally Stephen B. Presser, Judicial Ideology and the Surviv-
al of the Rule of Law: A Field Guide to the Current Political War over the Judiciary, 39 LOY. U. CHI. 
L.J. 427 (2008). 
 23. See Pub. L. No. 111-148, 124 Stat 119; Citizens United, 130 S. Ct. 876. 
 24. For the now-classic telling of that story, see generally the magisterial GORDON S. WOOD, THE 
CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969). 
 25. For an account of the “Constitution in Exile” written for a popular audience, see generally 
ANDREW P. NAPOLITANO, THE CONSTITUTION IN EXILE: HOW THE FEDERAL GOVERNMENT HAS SEIZED 
POWER BY REWRITING THE SUPREME LAW OF THE LAND (2006). 
5
Presser: Another Return to “First Principles”
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328 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 
proponents did not believe that the federal government was supposed to be 
the only government of any importance.
26
   
While I was at Harvard Law School (1968-1971), the message our 
professors wittingly or unwittingly passed on to us was that all law was 
politics, and that message was later intriguingly trumpeted from Harvard 
podia by proponents of Critical Legal Studies.
27
  A Distinct Judicial Power 
is a timely reminder that while much of law is politics, not all of it is, and 
that there is real content to the First Principles of an independent judiciary, 
the protection of individual rights, and the rule of law itself.
28
  To a hammer 
everything looks like a nail, and to a political scientist like Gerber, the 
Constitution looks like an exercise in political science, and, accordingly, 
this book is a celebration of the insight of a few brilliant political scientists, 
most notably Montesquieu, Adams, James Madison and Alexander 
Hamilton.
29
  They sensed that a set of great ideas—separation of powers, an 
independent judiciary, and judicial review—were in the air, and the latter 
three of them set about actualizing those ideas in the Constitution of 1787, 
and several of the new state constitutions.
30
  Not a bad thing to write about, 
and the risks to the rule of law and private property remain just as 
challenged as they were in the 1780s and 1790s. 
  
 26. U.S. CONST. amend. X. 
 27. On that movement, see generally, for example, MARK KELMAN, A GUIDE TO CRITICAL 
LEGAL STUDIES (1987). 
 28. See generally GERBER, A DISTINCT JUDICIAL POWER, supra note 2. 
 29. See, e.g., id. at 21-37. 
 30. See generally GERBER, A DISTINCT JUDICIAL POWER, supra note 2. 
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