| Book Review | The American Historical Review, 109.5

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| Book Review | The American Historical Review, 109.5 | The History Cooperative

Book Review

Canada and the United States

Paul O. Carrese. The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism. Chicago: University of Chicago Press. 2003. Pp. xiv, 335. Cloth $29.95, paper $14.95.
There are few political questions more interesting than the nature and extent of the judicial power within the context of modern constitutional thought. Paul O. Carrese sets out to shed needed light on the philosophic grounding of judicial power and its proper place within a constitution of written and enumerated powers such as that of the United States. His conclusion is that the American idea of judicial power was originally one of "common-law judging infused with a liberal spirit" (p. 162) that was ultimately "more characteristically Aristotelian than Hobbesian" (p. 202); indeed, he finds an understanding of judging among the founders that is "significantly Aristotelian" (p. 179). Unfortunately, this is a book that claims more than it can prove.	1
Carrese's analysis is divided into three parts: the first considers Montesquieu's jurisprudence and his theory that "judging is the critical link between constitutionalism and individual liberty" (p. 62); second, he explores Sir William Blackstone's understanding of that Montesquieuan theory and his embellishment of it into a "constitutionalism of liberty and complexity" (p. 112) that ultimately occupies a "middle position between modern positivism and a Scholastic, common-law naturalism" (p. 130); and finally he assesses the influence of Montesquieu's "prudential philosophy and philosophic prudence" (p. 94) on the American founders, and, later, on Alexis de Tocqueville's understanding of judicial power in Democracy in America.	. . .

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