Vol. 13 No. 9 (September 2003)

THE CLOAKING OF POWER: MONTESQUIEU, BLACKSTONE, AND THE RISE OF JUDICIAL ACTIVISM by Paul O. Carrese.  Chicago and London: The University of Chicago Press, 2003. 335 pp. Cloth $39.00. ISBN 0-226-09482-0.

Reviewed by Jack Wade Nowlin, University of Mississippi School of Law, jnowlin@olemiss.edu.

Paul O. Carrese is an associate professor of Political Science at the United States Air Force Academy and co-editor of John Marshall’s THE LIFE OF GEORGE WASHINGTON. Carrese’s THE CLOAKING OF POWER is a provocative and brilliant examination of the intellectual origins and evolution of the judicial power in the American constitutional design. In essence, Carrese’s book is a conceptual history of the judicial power in American organic law traced back from its contemporary practice in the United States today through a lineage which includes Justice Oliver Wendell Holmes, Jr., Alexis de Tocqueville, Alexander Hamilton, and Sir William Blackstone to what Carrese views as the ultimate intellectual fount and foundations of American judicial power in the juridical thought of Charles Louis de Secondat, Baron de Montesquieu. Through this genealogical lens, Carrese’s study confronts the puzzles surrounding the rise of the modern practice of the judicial power, a practice most fully and forcefully expressed in such controversial judicial decisions as CASEY and BUSH v. GORE, and one surprisingly expansive when compared to earlier Anglo-American conceptions of the proper judicial role. More specifically, the purpose of Carrese’s inquiry into the intellectual history of judicial power is to cast additional light on some of the central questions of judicial power in American constitutional theory: “Do we understand the philosophical sources from which this powerful judiciary sprang? Why has a constitutional politics that has eschewed the republican, complex design of its founders for a more democratic spirit simultaneously granted greater power to a few unelected, life-tenured judges? What happens to a liberal democratic politics and constitutional order, and to the character of the citizenry, when politics increasingly is defined by a judicial emphasis on individual rights and claims?” (p.2).  Significantly, Carrese’s study demonstrates that comprehension of the range of potential answers to these important questions requires a fuller understanding of Montesquieu’s thought and legacy. Additionally, Carrese also demonstrates persuasively that his inquiries not only illuminate the rise of modern judicial power as a matter of intellectual history, but also provide potential guides for reform by “rediscovering traditions of thought and practice” that may improve our constitutional order and better promote human flourishing (p.x).

THE CLOAKING OF POWER is organized into three sections: The first section explores Montesquieu’s jurisprudence and his innovative conception of judicial authority under the separation of powers, proceeding principally through a close reading of THE SPIRIT OF THE LAWS and a careful elaboration of Montesquieu’s “quiet” teachings on the independent judiciary as an indispensable source of subtle liberal moderation of the legal order.  The second section investigates Blackstone’s jurisprudence via analysis of the COMMENTARIES ON THE LAWS OF ENGLAND, emphasizing both Blackstone’s debt to Montesquieu and his Montesquieuan fusion of  Lockean social contract thought with Cokean common law constitutionalism of an ultimately Thomist-Aristotelian origin.  The third section analyzes Montesquieu’s judicial legacy in America, both directly and indirectly through Blackstone’s COMMENTARIES, emphasizing Montesquieu’s influence on Alexander Hamilton, Alexis de Tocqueville, and Justice Oliver Wendell Holmes, the principal author, in Carrese’s view, of a transformative revolution in American constitutional law. Carrese concludes his study with a Montesquieuan analysis and critique of controversial judicial decisions such as the ROE-CASEY line of cases and the conceptions of the judicial power asserted there by the Court and by dissenting justices such as William Rehnquist and Antonin Scalia.

In his exploration of Montesquieu’s thought and legacy, Carrese contends that “[m]odern judging and jurisprudence [in the American constitutional system] actually owe more to Montesquieu and his legacy as a distinct philosophical tradition” than they do to Locke, despite the common view that the foundations of the American constitutional order are principally derived from Locke (p.4). In particular, Carrese reminds us that Montesquieu was the first theorist to propose an important judicial branch and function institutionally discrete from the legislative and executive powers and that Locke, in contrast to Montesquieu, considered judicial power to be a mere sub-set and institutional sub-division of legislative power. The Framers of the U.S. Constitution, of course, followed Montesquieu rather than Locke in structuring the branches of the federal government, and thus, not surprisingly, the former is cited in THE FEDERALIST as an authority on matters of constitutional structure while the latter is not.

Carrese’s foundational contention is this book is his view of Montesquieu’s “quiet” teachings on judicial power within the separation of powers in THE SPIRIT OF THE LAWSBteaching later adopted and modified by Sir William Blackstone and of great influence at the American Founding and in the early American Republic. As Carrese (re)constructs it, Montesquieu’s central notion is that an independent judicial branch, as a part of the separation of powers, is the primary institutional means of promoting a complex of values, including moderation, gradual reform, liberty, and individual tranquility, within the constitutional design. An independent judiciary is specially suited to perform this incrementalist “moderating” or “liberalizing” role for a number of reasons. First, the courts have an effective means of performing this function by “tempering” law – particularly with regard to morality, politics, and religion – with liberal interpretations that weight a humane, moderate, and reformist “spirit” more heavily than the potentially harsh letter of the law. Second, judges B as a learned, aristocratic, professional class steeped in  legal tradition B have reason to pursue reform in a sound,  prudent, incrementalist fashion, avoiding radical changes and utopian rationalism unmoored to legal experience and tradition. Third, the courts, despite the likely relative weakness of the judiciary compared to other political actors, can exercise this “moderating” power (and thus influence the broader political culture) in subtle, non-obtrusive ways that minimize political opposition from the other branches of government or the populace more generally. This is in part the “cloaking” of the moderating power in the guise of simple judicial application of the law, to which Carrese’s title refers. In sum, then, Montesquieu believes that a properly structured government will contain an independent judicial branch designed to exercise a moderating power for incremental liberal legal reform via humane interpretation of the law.  Indeed, given the traditionalist and aristocratic character of the judiciary, this authority can be exercised in a subtle and unobtrusive or “cloaked” fashion, allowing the courts to “imperceptibly mitigate the severity of the law,” accomplishing reforms while causing minimal political disruption and without provoking a political backlash (p.49).

Notably, Montesquieu’s conception of reformist power “cloaked” in the guise of mere judicial application of the law is positioned within the uncontested judicial function of interpreting legislation and resolving questions of fact, with no mention of any power to invalidate legislation in conflict with fundamental law, as in American judicial review. Even so, as Carrese observes, Montesquieu’s teachings B given their emphasis on the creation of an independent judiciary for the purpose of promoting liberty through gradual legal reform B provide an obvious analytical foundation for the power of judicial review (p.32). In particular, Carrese contends that the framers of the U.S. Constitution “adapt[ed] Montesquieu . . .  to the new circumstances of a Declaration of natural right, a written fundamental law, and a complex republican government,” broadly endorsing a novel power of judicial review of constitutional questions (p.183). This power is derived, as is evident in canonical sources such as Hamilton’s FEDERALIST NO. 78 and Marshall’s opinion in MARBURY, from principles implicit in Montesquieu’s basic conception of the separation of powers—i.e, the equality of the judicial branch with the executive and legislature in conjunction with the institutional obligation of courts under the separation of powers “to say what the law is” and thus to resolve conflicts between higher- and lower-order law by declaring the latter invalid.

Carrese, through a close reading of FEDERALIST NO. 78, further contends that Hamilton draws on Montesquieu in providing three additional rationales for judicial review: first, independent judges can serve as an aristocratic bulwark against populist abuses expressed in the legislative branch, a clear extension of Montesquieu’s “quiet” teachings on the judiciary as an instrument of moderation; second, only life-tenured judges will likely have the training and expertise necessary to master the technical legal doctrines implicit in the common law development of the law of the Constitution, thus maintaining the proper balance between respect for legal tradition and incremental reform; and, third, independent judges charged with interpreting the Constitution are thereby empowered not only to shape the law of the Constitution but also to serve as “republican schoolmasters” of moderation, shaping the broader American political culture as well (pp.197-98). In a sense, then, the application of Montesquieu’s thoughts on judicial power in conjunction with the principles of the U.S. Constitution provide a sound basis for a doctrine of judicial review—at least when grounded in a particular Montesquieuan conception of the function of courts as promoters of moderation and liberty under the separation of powers.

As noted, one of the basic questions of American constitutional law which Carrese seeks to address is that of the causes of the tremendous expansion in judicial power in the late nineteenth and twentieth centuries, an expansion occurring, paradoxically, at the same time as a more robustly populist conception of American democracy.  In Carrese’s view, the principal explanation for the growth of the judicial power B and the transformation in judging and legal interpretation that accompanied it B can be found in the proto-legal realism of Oliver Wendell Holmes and its broad diffusion throughout the legal culture by the mid-twentieth century. In essence, Holmes’ skepticism about the capacity of traditional legal reasoning B grounded in judicial precedent, legal traditions, and natural law B to provide sound and determinant answers to complex legal questions led him to embrace a new conception of the judicial role as interstitial legislator, creating policy-driven rules in the gaps of the law in order to promote pragmatic legal reform (p.239). One can, of course, see this new conception of the judicial role as a natural outgrowth of Montesquieu’s “quiet” teachings, but Carrese points out the important ways in which Holmes and the legal realists in fact break with Montesquieu’s main lines of thought. First, the realist conception of the judicial role involves a rejection of the separation of powers as understood by Montesquieu, which demands a sharp differentiation between the judicial and legislative roles, both in form and substance. Second, the realist view of judicial interpretation is also inconsistent with a traditional understanding of the Rule of Law because of its rejection of classical common law reasoning. Third, the realist conception of the judicial role also tends to encourage radical rather than gradual legal change. And, finally, the open embrace of a legislative role, “uncloaks” the “moderating” reform power of the judiciary even as it far exceeds that power, leaving the Court exposed to the political opposition that its decisions may provoke B political opposition, one may note, likely aggravated substantially by the broader questions of decisional legitimacy that will inevitably arise when unelected judges “legislate” in a democracy.

Significantly, Carrese observes that both proponents of judicial activism and judicial restraint in contemporary constitutional law are often the intellectual heirs of Justice Holmes and the legal realist movement. Indeed, skepticism about the extent to which traditional legal reasoning can provide politically defensible and determinant answers to difficult legal questions can be cited by judicial activists in support of expansive readings of the Constitution in the service of various political ideologies, and by judicial passivists as a reason for deference to democratically-elected decision makers. Thus Carrese notes that, in ROE, both Justice Blackmun for the majority and Justice Rehnquist in dissent cite Justice Holmes in support of their respective positions. Thus, while Carrese’s conception of Montesquieuan judging would likely be considered a form of judicial restraint in contemporary debates given its emphasis on close analysis of precedent and legal traditions, Carrese is critical of many judges often associated with judicial restraint, such as John Marshall Harlan III and Antonin Scalia. Carrese, in particular, views Justice Scalia’s CASEY dissent as essentially Holmesean in its skepticism about the ability of reason to resolve controversial moral issues and its reflexive deference to political majorities. Justice Scalia’s opinion, then, in Carrese’s view, is an “inadequate alternative” to the even more objectionable historicist judicial legislation of the CASEY plurality (p.52). In sum, Carrese is convinced of the general wisdom of Montesquieu and thus considers the prevalence of realism an unhappy development and the resulting expansion of judicial power in the twentieth century a regrettable unintended consequence of Montesquie’s emphasis on judicial power as an instrument of moderation and liberty.

THE CLOAKING OF POWER is powerful in its conception, structure, and argument, evincing an impressive erudition, a consistently keen set of analytical skills, and an admirable degree of originality. Even so, some readers will certainly object to Carrese’s reconstruction of Montesquieu’s “quiet” teachings on judicial power, finding them, perhaps, a little too “quiet” to be asserted with the same degree of confidence as Montesquieu’s actual teachings. That said, Carrese, building on the powerful work of James R. Stoner, Jr., has made a strong case for his position, one with which future scholars of both Montesquieu and judicial power will have to reckon (Stoner, pp.152-161). Other readers may object to Carrese’s lack of direct engagement with the analytical issues (or the major legal theorists other than Holmes) surrounding legal realism and the important questions of perceived legal in- or under-determinacy that have provided so much of the impetus behind Holmes, the legal realist movement, and their intellectual descendants such as the legal process school and the Critical Legal Studies movement. Related to this concern is the fairly abstract nature of Carrese’s interpretations of Montesquieu’s conception of judging. To the extent this conception is being offered as a potential normative model for judging and thus as an alternative to those on display in the various CASEY opinions, one would like to see Carrese “get down to cases” and provide a more detailed account of what this form of judging would actually involve in a controversy like ROE or CASEY. Finally, curiously absent from Carrese’s study is any clear discussion of the distinction (both analytical and historical) between what one might call a mere judicial review in a co-ordinate model of constitutional assessment and a supreme judicial review (i.e., judicial supremacy in rendering constitutional issues). This is surprising, given, first, the significance of the rival conceptions of the separation of powers in constitutional interpretation; and, second, the importance of the doctrine of supreme (or more nearly supreme) judicial review for the broad expansion in judicial power over the last century. This omission leaves one very curious to know what Carrese B and Montesquieu in Carrese’s opinion B would make of this important aspect of the judicial role within the separation of powers and its contribution to the expansion of judicial authority. 

In any event, it should be clear that the CLOAKING OF JUDICIAL POWER is an impressive work of intellectual history and one that will well repay a careful reading and re-reading. It should be of great interest not only to students of Montesquieu and Blackstone, but also to students of Hamilton, Tocqueville, Holmes, and to anyone else working in the broad areas of the judicial power, constitutional interpretation, constitutional history, or the philosophy of law.

REFERENCES:

Carrese, Paul O. and Robert Faulker (eds.). 2001. John Marshall’s LIFE OF GEORGE WASHINGTON (special school edition).  Indianapolis, IN: Liberty Fund, Inc.

Stoner, James R., Jr. 1992. COMMON LAW & LIBERAL THEORY: COKE, HOBBES, & THE ORIGINS OF AMERICAN CONSTITUTIONALISM.  Lawrence, KS: University Press of Kansas.

CASE REFERENCES:

BUSH v. GORE, 531 U.S. 98 (2000).

MARBURY v. MARBURY, 5 U.S. (1 Cranch) 137 (1803).

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 U.S. 833 (1992).

ROE v. WADE, 410 U.S. 113 (1973).

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Copyright 2003 by the author, Jack Wade Nowlin.