The Cloaking of Power

By Paul O. Carrese

Subjects: Jurisprudence, Droit, Judicial process, Libéralisme, Histoire, Pouvoir judiciaire, Processus judiciaire, Liberalism, Montesquieu, charles de secondat, baron de, 1689-1755, Political questions and judicial power, Judicial power, Blackstone, william, sir, 1723-1780, Aspect politique, History, Politique et pouvoir judiciaire, Philosophie

Description: In The Cloaking of Power, Paul O. Carrese 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, 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