The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism / Edition 2 by Paul O. Carrese | 9780226094823 | Hardcover | Barnes & Noble
The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism / Edition 2

The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism / Edition 2

by Paul O. Carrese
     
 

ISBN-10: 0226094820

ISBN-13: 9780226094823

Pub. Date: 06/28/2003

Publisher: University of Chicago Press

How did the U.S. judiciary become so powerful-powerful enough that state and federal judges vied to decide a presidential election? What does this prominence mean for the law, constitutionalism, and liberal democracy both in America and internationally?

In The Cloaking of Power, Paul O. Carrese provides a provocative and original analysis of the

Overview

How did the U.S. judiciary become so powerful-powerful enough that state and federal judges vied to decide a presidential election? What does this prominence mean for the law, constitutionalism, and liberal democracy both in America and internationally?

In The Cloaking of Power, Paul O. Carrese provides a provocative and original analysis of the intellectual sources of today's powerful judiciary, arguing that Montesquieu, in his Spirit of the Laws, first articulated a new conception of the separation of powers and of strong but subtle courts. Montesquieu instructed statesmen and judges to "cloak power" by placing the robed power at the center of politics, while concealing judges behind citizen juries and subtle reforms. Tracing Montesquieu's conception of judicial power through Blackstone, Hamilton, and Tocqueville, Carrese shows how it led to the prominence of judges, courts, and lawyers in America today. But he places the blame for contemporary judicial activism squarely at the feet of Oliver Wendell Holmes Jr. and his jurisprudential revolution-which he believes to be the source of the now-prevalent view that judging is merely political.

To address this crisis, Carrese argues for a rediscovery of an independent judiciary-one that blends prudence and natural law with common law and that observes the moderate jurisprudence of Montesquieu and Blackstone, balancing abstract principles with realistic views of human nature and institutions. He also advocates for a return to the complex constitutionalism of the American founders and Tocqueville and for judges who understand their responsibility to elevate citizens above individualism, instructing them in law and right. Such judicial statesmanship, moderating democracy's excesses, Carrese explains, differs from an activism that favors isolated individuals and progressive policies over civic duties, communal principles, and constitutional tradition.

Students of political theory, law, constitutionalism, and the American founding will find The Cloaking of Power an invaluable resource.

Product Details

ISBN-13:
9780226094823
Publisher:
University of Chicago Press
Publication date:
06/28/2003
Edition description:
1
Pages:
349
Product dimensions:
6.00(w) x 9.00(h) x 1.00(d)

Table of Contents

Acknowledgments
Notes on Texts
Introduction: The Subtle Judge and Moderate Liberalism
Part One: Montesquieu's Jurisprudence and New Judicial Power
1 Moderation Liberalism and Common Law: Spirt and Judicial Government
2 Moderate and Juridical Government: The Spirit of Constitutional Liberty
3 Projects for Reform: Due Process, National Spirit, and Liberal Toleration
4 The New Aristocracy of the Robe: History, Reason, and Judicial Prudence
Part Two: Blackstone and the Montesquieuan Constitution
5 Blackstone's Liberal Education for Law and Politics
6 A Gothic and Liberal Constitution: Blackstone's Tempting of Sovereignty
7 Blackstone, Lord Mansfield, and Common-Law Liberalism
Part Three: Montesquieu's Judicial Legacy in America
8 Hamilton's Common-Law Constitutionalism and Judicial Prudence
9 Tocqueville's Judicial Statesmanship
10 Holmes and Judicialized Liberalism
Conclusion: The Cloaking of Power and the Perpetuation of Constitutionalism

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