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

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University of Chicago Press, 2010 M02 15 - 349 páginas
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.

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Contenido

Blackstone and the Montesquieuan Constitution
105
Montesquieus Judicial Legacy in America
179
The Cloaking of Power and the Perpetuation of Constitutionalism
257
Notes
265
Bibliography
295
Index
315
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Página 199 - Courts of justice ; whose duty it must be to declare all Acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Página 199 - It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.
Página 249 - These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy...
Página 142 - For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law ; that is, that it is not the established custom of the realm, as has been erroneously determined.
Página 159 - ... immediately to vacate their seats, and their full salaries are absolutely secured to them during the continuance of their commissions ; his majesty having been pleased to declare, that " he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice ; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown.
Página 65 - That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.
Página 199 - This independence of the judges is equally requisite to / " guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves...

Acerca del autor (2010)

Paul O. Carrese is professor of political science at the United States Air Force Academy. He is coeditor of John Marshall’s The Life of George Washington and of Constitutionalism, Executive Power, and Popular Enlightenment. He lives in Air Force Academy, CO.

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