The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial ActivismUniversity 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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Página 6
... civil liberty confirms this prominence, declaring that individual “security ... law as essentially malleable, to be shaped by judges in accord with the ... law and judging in ways that permitted unintended consequences, certainly beyond ...
... civil liberty confirms this prominence, declaring that individual “security ... law as essentially malleable, to be shaped by judges in accord with the ... law and judging in ways that permitted unintended consequences, certainly beyond ...
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... law reasoning counteract the isolated, skep- tical “individualism” and rootless pragmatism that endanger modern democ- racy.18 This challenges Montesquieu's liberalism, which had raised civil law— the criminal and civil law directly ...
... law reasoning counteract the isolated, skep- tical “individualism” and rootless pragmatism that endanger modern democ- racy.18 This challenges Montesquieu's liberalism, which had raised civil law— the criminal and civil law directly ...
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... laws” within European monarchies as a source of political and civil liberty (2.4). Such a judicial power provides both political balance and true individual security, features he finds lacking in earlier liberalism and republicanism, as ...
... laws” within European monarchies as a source of political and civil liberty (2.4). Such a judicial power provides both political balance and true individual security, features he finds lacking in earlier liberalism and republicanism, as ...
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Contenido
1 | |
11 | |
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 |
Otras ediciones - Ver todas
The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial ... Paul O. Carrese Vista previa limitada - 2010 |
The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial ... Paul O. Carrese Sin vista previa disponible - 2013 |
The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial ... Paul O. Carrese Sin vista previa disponible - 2003 |
Términos y frases comunes
achieve Alschuler American constitutionalism analysis ancient Anti-Federalist argues argument Aristotelian Aristotle balance Bentham Blackstone's book 11 Casey cites civil law classic common-law cloaking of power Coke Commentaries common law complex conception concern constitutional constitutionalism criticism crucial declares defined Democracy in America democratic despotism discussion due process emphasis English law equity essay federal Federalist French fundamental Gothic Hamilton Harvey Mansfield Herbert Storing History Hobbes Holmes Holmesean human independent Intro judging power judgment judicial activism judicial power judicial review judiciary juridical jurisprudence jurists justice Law and Liberal Laws of England lawyers legal positivism legal realism legislative Liberal Theory liberty Locke Lockean Mansfield medieval moderate monarchy Montesquieu Montesquieu and Blackstone moral nation natural law natural right notes Parliament political philosophy political science praise principles reason reform Republic republican revolution Roman rule of law separation of powers skepticism statutes Stoner suggests Supreme Court tesquieu theme tion Tocqueville Tocqueville's tradition University Press
Pasajes populares
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...
Referencias a este libro
The Political Thought of Justice Antonin Scalia: A Hamiltonian on the ... James Brian Staab Vista previa limitada - 2006 |