The cloaking of power : Montesquieu, Blackstone, and the rise of judicial activism / Paul O. Carrese.

Format:

Book

Author/Creator:

Carrese, Paul.

Language:

English

Subjects (All):

Montesquieu, Charles de Secondat, baron de, 1689-1755.

Montesquieu, Charles de Secondat.

Blackstone, William, 1723-1780.

Blackstone, William.

Judicial process--Political aspects--History.

Judicial process.

Political questions and judicial power--History.

Political questions and judicial power.

Judicial power--History.

Judicial power.

Liberalism--History.

Liberalism.

Jurisprudence--History.

Jurisprudence.

Physical Description:

1 online resource (351 p.)

Edition:

1st ed.

Place of Publication:

Chicago : University of Chicago Press, 2003.

Language Note:

English

Summary:

How did the US judiciary become so powerful-powerful enough that state and federal judges once vied to decide a presidential election? What does this prominence mean for the law, constitutionalism, and liberal democracy? In The Cloaking of Power, Paul O. Carrese provides a provocative 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 strong but subtle courts. Montesquieu instructed statesmen to "cloak power" by placing judges at the center of politics, while concealing them behind juries and subtle reforms. Tracing this conception 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.

Contents:

Frontmatter

Contents

Acknowledgments

Note on Texts

Introduction. The Subtle Judge and Moderate Liberalism

PART ONE. Montesquieu's Jurisprudence and New Judicial Power

PART TWO. Blackstone and the Montesquieuan Constitution

PART THREE. Montesquieu's Judicial Legacy in America

Conclusion. The Cloaking of Power and the Perpetuation of Constitutionalism

Notes

Bibliography

Index

Notes:

Description based upon print version of record.

Includes bibliographical references (p. 295-313) and index.

ISBN:

9786612537295

9781282537293

1282537296

9780226094830

0226094839

OCLC:

593356157