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Book Review
| Paul O. Carrese, The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism, Chicago: University of Chicago Press, 2003. Pp. 312. $39.00 cloth (ISBN 0-226-09482-0).
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| Paul Carrese does not like judicial activism of either the left (typified by Justice Brennan, Roe v. Wade, and the "living constitution") or the right (typified by Justice Scalia, Bush v. Gore, and originalism). To Carrese, left-wing judicial activism is too subjective to be law; right-wing judicial activism is too static to be efficacious. In addition, both varieties of activism are too positivist. Whether of the left or of the right, Carrese rejects modern judicial activism for imposing the debatable and transitory value preferences of one political party or another on the country. |
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Carrese prefers an approach to constitutional law that, although he never uses the term, we might call "common-law constitutionalism." Common-law constitutionalism conceives the judiciary as an independent branch of government that possesses the power to develop and enforce constitutional norms but requires it to do so in such a "subtle" (6) and "gradual" (263) manner that it exercises an "invisible power" (62). The norms common-law constitutionalism instantiates are objective and timeless moral precepts. In Carrese's view, common-law constitutionalism is a desirable adjunct to modern government because it moderates the excesses of democratic politics and promotes individual liberty and security. |
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Common-law constitutionalism is an emergent jurisprudence whose supporters believe in moral reality and permanent principles of constitutional law whose application imperceptively evolves with social development. Carrese has written a history of that jurisprudence to show its heritage. His goal is to establish common-law constitutionalism's legitimacy by showing that it had distinguished progenitors, that it was the jurisprudence of the Constitution's framers, and that it guided the first century of American jurists. Carrese also wants to show that modern judicial activism is an early twentieth-century corruption of traditional common-law constitutionalism. |
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Carrese traces common-law constitutionalism to Baron Montesquieu who first depicted the judiciary as a independent branch of government whose increasing prominence "moderates partisanship and ensures individual security" (3). He discusses its Anglicization by William Blackstone, its Americanization by Alexander Hamilton, its universalization to all democracies by Alexis de Tocqueville, and its transformation into modern judicial activism by Oliver Wendell Homes. |
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In discussing common-law constitutionalism, Carrese adopts a "great books of great authors" approach to intellectual history. Most of The Cloaking of Power is a seriatum analysis of Montesquieu's Spirit of the Laws, Blackstone's Commentaries, Hamilton's Federalist Papers, and Tocqueville's Democracy in America to show that common-law constitutionalism is an essential part, even the hidden core, of these celebrated authors' jurisprudence. Carrese's treatment of these books is close, refreshing, revisionist, and convincing (at least to this reviewer who is not a specialist in these authors). Carrese's discussion exhibits all the strengths of the "great books" approach to intellectual history. Any further scholarship on Montesquieu, Blackstone, Hamilton, or Tocqueville will build on, or have to respond to, Carrese's views. This is a remarkable achievement. |
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Carrese's discussion also demonstrates the limitations of the "great books" approach. Carrese, for example, overcredits these "great authors" with the creation of common-law constitutionalism. As he notes, judicial independence—which is among common-law constitutionalism's most basic precepts—was never mentioned by John Locke. Montesquieu gave the idea its initial exposition. Nevertheless, judicial independence was created in England shortly after the Glorious Revolution when judges began to receive appointments "for good behavior." No one may have philosophized about it. Still, this bit of Anglo-American constitutionalism arose in practice a good half-century before Montesquieu discussed it. In light of English practice, I can see no reason to credit judicial independence in America entirely to Montesquieu's theorizing. |
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Moreover, because Carrese's intellectual history is a study of great books, it cannot show that the ideas developed by his theorists were actually practiced by American judges. It requires some discussion, I believe, to show that such decisions as McCulloch v. Maryland, Charles River Bridge v. Warren Bridge, Prigg v. Pennsylvania, and Dred Scott v. Sandford were based on timeless moral principles rather than transitory political preferences. And, given Carrese's approach, he never addresses questions about the social, economic, political, and religious reasons for why common-law constitutionalism arose or proved popular (assuming it did). |
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Carrese's discussion of common-law constitutionalism's corruption into modern judicial activism suffers both from the limits of the "great books" approach and from not being a successful exercise of that genre. Carrese entirely blames Justice Holmes for common-law constitutionalism's demise. Unfortunately, Carrese's analysis of Holmes's writings is limited and not at all persuasive that Holmes is the cause of all the evils of modern constitutionalism. The thinness of Carrese's analysis is only compounded by his failure to consider any of the historic forces and general societal movements that, along with Holmes's theorizing, overthrew the old order. |
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The Cloaking of Power is a "must read" for anyone interested in understanding Montesquieu's, Blackstone's, Hamilton's or Tocqueville's great books. But its claim that common-law constitutionalism was a major influence on eighteenth- and nineteenth-century American law, and that it should be revived today, is only a stimulus to further research. To paraphrase Holmes, it may be that great books are only "strategic point[s] in the campaign of history." (The Collected Works of Justice Holmes, ed. Sheldon M. Novick [1995], 3:501.) |
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| Stephen A. Siegel
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| DePaul University College of Law |
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