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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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Conclusion: The Cloaking of Power and the Perpetuation of Constitutionalism

Conclusion: The Cloaking of Power and the Perpetuation of Constitutionalism

(p.257) Conclusion: The Cloaking of Power and the Perpetuation of Constitutionalism
The Cloaking of Power
University of Chicago Press

This chapter concludes the views about the judicialized liberalism that inquires of politics, law, and rights favored by the original, Montesquieuan project for cloaking power and eventually, by the legislative judiciary of Holmesean legal realism. The reconception of liberalism has been challenged by a range of contemporary political theorists who warn about a judicialized politics that reduces any higher civic and moral aims to litigious disputes about individual claims and entitlements. Rediscovery of the Montesquieuan legacy in modern constitutionalism points to an intrinsic relation among a complex constitutionalism, republicanism, and the principles of natural right. Montesquieu and his disciple Blackstone might understand if their views are balanced with resources of jurisprudential tradition that moderate their weaknesses while making the most of their virtues.

Keywords:   judicialized liberalism, Montesquieuan project, cloaking power, Holmesean legal realism, constitutionalism, jurisprudential tradition

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