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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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: Tocquevilie's Judicial Statesmanship and Common-Law Spirit

: Tocquevilie's Judicial Statesmanship and Common-Law Spirit

(p.211) Nine: Tocquevilie's Judicial Statesmanship and Common-Law Spirit
The Cloaking of Power
University of Chicago Press

This chapter analyzes diagnosis by Alexis de Tocqueville, a French nobleman and a jurist, on America's original constitutionalism of limited powers which readily appears on along with his emphasis upon the judiciary regarding the classic common-law training that shaped America's bar and bench well into the nineteenth century. Tocqueville highlights lawyers and judges by extensively discussing how the “lawyer spirit,” especially through judges and juries, “tempers the tyranny of the majority” in America. He concludes that the “American aristocracy is at the attorneys' bar and on the judges' bench” because American lawyers embody common-law reasoning, with its peculiar inclinations and habits and because this lawyer spirit gives the legal profession a special power to shape the character of the citizenry and politics. He suggests that jurisprudence oriented to the perpetuation of republican constitutionalism should arise from the judge's regular exercise of a judgment guided by binding precedent and fundamental, established principles.

Keywords:   Alexis de Tocqueville, constitutionalism, common-law training, lawyer spirit, politics, judgment, jurisprudence

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