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The Cloaking of PowerMontesquieu, Blackstone, and the Rise of Judicial Activism$
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Paul O. Carrese

Print publication date: 2003

Print ISBN-13: 9780226094823

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226094830.001.0001

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: Hamilton's Common-Law Constitutionalism and Judicial Prudence

: Hamilton's Common-Law Constitutionalism and Judicial Prudence

Chapter:
(p.185) Eight: Hamilton's Common-Law Constitutionalism and Judicial Prudence
Source:
The Cloaking of Power
Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226094830.003.0009

This chapter outlines the perspective of Hamilton, one of the leading statesmen-jurists of the American founding, about the dominant views of judicial power that today are latter-day versions of either Jefferson's majoritarian criticism of federal judicial power or the overt political activism of a Justice Chase. For both Hamilton and Tocqueville, the deeper complexity to American judging lies in their recourse to traditional common-law jurisprudence beyond the confines of Montesquieuan liberalism. Hamilton seems to have discerned the quiet emphasis that both English jurists were placed on an effectively independent, moderating judiciary because the American founders knew Montesquieu in part since Blackstone's Commentaries was replacing Coke-Littleton as the basic law text. The Hamiltonian defense of judicial review implicitly links judging and the rule of law with some version of a balancing of orders or virtues.

Keywords:   Hamilton, Justice Chase, federal judicial power, common-law, jurisprudence, Tocqueville

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