The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial ActivismUniversity of Chicago Press, 15 feb 2010 - 349 páginas How did the US judiciary become so powerful—powerful enough that state and federal judges once vied to decide a presidential election? What does this prominence mean for the law, constitutionalism, and liberal democracy? In The Cloaking of Power, Paul O. Carrese provides a provocative 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 strong but subtle courts. Montesquieu instructed statesmen to “cloak power” by placing judges at the center of politics, while concealing them behind juries and subtle reforms. Tracing this conception through Blackstone, Hamilton, and Tocqueville, Carrese shows how it led to the prominence of judges, courts, and lawyers in America today. But he places the blame for contemporary judicial activism squarely at the feet of Oliver Wendell Holmes Jr. and his jurisprudential revolution, which he believes to be the source of the now-prevalent view that judging is merely political. To address this crisis, Carrese 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. He 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. |
Índice
1 | |
Montesquieus Jurisprudence and New Judicial Power | 11 |
Blackstone and the Montesquieuan Constitution | 105 |
Montesquieus Judicial Legacy in America | 179 |
The Cloaking of Power and the Perpetuation of Constitutionalism | 257 |
Notes | 265 |
Bibliography | 295 |
315 | |
Otras ediciones - Ver todo
The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial ... Paul O. Carrese Vista previa restringida - 2010 |
The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial ... Paul O. Carrese No hay ninguna vista previa disponible - 2013 |
The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial ... Paul O. Carrese No hay ninguna vista previa disponible - 2003 |
Términos y frases comunes
achieve Alschuler American constitutionalism analysis ancient Anti-Federalist argues argument Aristotelian Aristotle balance Bentham Blackstone's book 11 Casey cites civil law classic common-law cloaking of power Coke Commentaries common law complex conception concern constitutional constitutionalism criticism crucial declares defined Democracy in America democratic despotism discussion due process emphasis English law equity essay federal Federalist French fundamental Gothic Hamilton Harvey Mansfield Herbert Storing History Hobbes Holmes Holmesean human independent Intro judging power judgment judicial activism judicial power judicial review judiciary juridical jurisprudence jurists justice Law and Liberal Laws of England lawyers legal positivism legal realism legislative Liberal Theory liberty Locke Lockean Mansfield medieval moderate monarchy Montesquieu Montesquieu and Blackstone moral nation natural law natural right notes Parliament political philosophy political science praise principles reason reform Republic republican revolution Roman rule of law separation of powers skepticism statutes Stoner suggests Supreme Court tesquieu theme tion Tocqueville Tocqueville's tradition University Press
Referencias a este libro
The Political Thought of Justice Antonin Scalia: A Hamiltonian on the ... James Brian Staab Vista previa restringida - 2006 |