| Book Review | The Journal of American History, 91.2

You have not been recognized as a subscriber to JAH online. About 236 words from this article are provided below; about 363 words remain.

If you are a individual member of the Organization of American Historians, you may:: • login here if you have already registered for online access.; • Or if you're already logged in register your subscription.
• Set up your online account for the first time.
If you are not a member of the Organization of American Historians, you can:: • Join the OAH and receive many member benefits including print and electronic issues of the Journal of American History.
• Purchase a research pass to gain two-hour access to the entire History Cooperative web site. You will have full access to current issues of the Journal of American History (86.1-present). Note: the Research Pass does not provide access to JSTOR's holdings of the Journal of American History.
Instititutions can:: • Subscribe to this journal and receive print and electronic issues.
• Activate your existing subscription so that we recognize your IP number ranges.

| Book Review | The Journal of American History, 91.2 | The History Cooperative

Book Review

The Cloaking of Power: Montesquieu, Black-stone, and the Rise of Judicial Activism. By Paul O. Carrese. (Chicago: University of Chicago Press, 2003. xiv, 335 pp. $39.00, ISBN 0-226-09482-0.)

The friends of the rule of law, the separation of powers, and natural law have not lately been much merry. In the second half of the twentieth century, American courts increasingly became lawmakers rather than adjudicators. Perceiving that state and federal legislators were slow to repeal statutes restraining private sexual conduct, that they were inappropriately placing burdens or prohibitions on the termination of pregnancies, and that they were insufficiently implementing civil rights and a secular public square, judges stepped in and overruled them. Behind the actions of these judges was the insight of Oliver Wendell Holmes Jr. and his legal realist followers that law is made for the living and that it ought to be the task of judges to fashion rules that are (to use Holmes's word) convenient for the needs of the moment. This culminated in Bush v. Gore (2000), in which, for the first time in history, five Supreme Court justices determined the winner of a presidential election. That decision did more to roil commentators than had any opinion since Brown v. Board of Education (1954), and, while Brown is now universally approved, the result in Bush v. Gore led many to wonder whether judge-made law was such a hot idea.

. . .

There are about 363 more words in this article. Please log in (or, if you are not yet an authorized user, please go to the User Setup page) to gain full access rights. Or if you're already logged in register your subscription.