The Cloaking of PowerMontesquieu, Blackstone, and the Rise of Judicial Activism

The Cloaking of PowerMontesquieu, Blackstone, and the Rise of Judicial Activism

Paul O. Carrese

Print publication date: 2013

ISBN: 9780226094823

Publisher: University of Chicago Press


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.