The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism
The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism
Cite
Abstract
This book 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, the book shows how it led to the prominence of judges, courts, and lawyers in America today. But it places the blame for contemporary judicial activism squarely at the feet of Oliver Wendell Holmes Jr. and his jurisprudential revolution—which it is argued is the source of the now-prevalent view that judging is merely political. To address this crisis, the book 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. It 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, the book explains, differs from an activism that favors isolated individuals and progressive policies over civic duties, communal principles, and constitutional tradition.
-
Front Matter
-
Introduction: the Subtle Judge and Moderate Liberalism
-
Part One: Montesquieu's Jurisprudence and New Judicial Power
-
One:
Moderating Liberalism and Common Law: Spirit and Juridical Liberty
-
Two:
Moderate and Juridical Government: The Spirit of Constitutional Liberty
-
Three:
Projects for Reform: Due Process, National Spirit, and Liberal Toleration
-
Four:
The New Aristocracy of the Robe: History, Reason, and Judicial Prudence
-
One:
Moderating Liberalism and Common Law: Spirit and Juridical Liberty
-
Part Two: Blackstone and the Montesquieuan Constitution
-
Part Three: Montesquieu's Judicial Legacy In America
-
End Matter
Sign in
Get help with accessPersonal account
- Sign in with email/username & password
- Get email alerts
- Save searches
- Purchase content
- Activate your purchase/trial code
Institutional access
- Sign in through your institution
- Sign in with a library card Sign in with username/password Recommend to your librarian
Institutional account management
Sign in as administratorPurchase
Our books are available by subscription or purchase to libraries and institutions.
Purchasing informationMonth: | Total Views: |
---|---|
October 2022 | 1 |
November 2022 | 3 |
November 2022 | 3 |
December 2022 | 4 |
December 2022 | 1 |
January 2023 | 1 |
March 2023 | 2 |
April 2023 | 3 |
April 2023 | 1 |
July 2023 | 3 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 3 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
July 2023 | 2 |
October 2023 | 2 |
October 2023 | 4 |
November 2023 | 1 |
November 2023 | 7 |
November 2023 | 1 |
January 2024 | 1 |
January 2024 | 1 |
January 2024 | 1 |
January 2024 | 2 |
January 2024 | 2 |
February 2024 | 1 |
February 2024 | 1 |
April 2024 | 1 |
April 2024 | 1 |
Get help with access
Institutional access
Access to content on Oxford Academic is often provided through institutional subscriptions and purchases. If you are a member of an institution with an active account, you may be able to access content in one of the following ways:
IP based access
Typically, access is provided across an institutional network to a range of IP addresses. This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account.
Sign in through your institution
Choose this option to get remote access when outside your institution. Shibboleth/Open Athens technology is used to provide single sign-on between your institution’s website and Oxford Academic.
If your institution is not listed or you cannot sign in to your institution’s website, please contact your librarian or administrator.
Sign in with a library card
Enter your library card number to sign in. If you cannot sign in, please contact your librarian.
Society Members
Society member access to a journal is achieved in one of the following ways:
Sign in through society site
Many societies offer single sign-on between the society website and Oxford Academic. If you see ‘Sign in through society site’ in the sign in pane within a journal:
If you do not have a society account or have forgotten your username or password, please contact your society.
Sign in using a personal account
Some societies use Oxford Academic personal accounts to provide access to their members. See below.
Personal account
A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions.
Some societies use Oxford Academic personal accounts to provide access to their members.
Viewing your signed in accounts
Click the account icon in the top right to:
Signed in but can't access content
Oxford Academic is home to a wide variety of products. The institutional subscription may not cover the content that you are trying to access. If you believe you should have access to that content, please contact your librarian.
Institutional account management
For librarians and administrators, your personal account also provides access to institutional account management. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more.