But the politicians and judges who believe and operate on the theory of legal realism still find it difficult to defend their activities on the basis of that view. The American people—who have traditionally assumed that judicial power really is different from legislative power—have been brought by events to recognize that modern judges often depart from the ideal of exercising judgment rather than will (as The Federalist put it), but enough of them still cling to that ideal that politicians and judges must keep up the pretense that judges are "interpreting" the Constitution.
But the incompatibility of much scholarly theory, political practice, and public rhetoric makes for very incoherent debates over judicial nominations, which have increasingly become—even at the level of court of appeals nominations—nothing more than political pitched battles. And these are likely to seem tame in comparison with potential fights over Supreme Court nominations.
Paul Carrese has written a book that is a very important contribution to the current debate about the appropriate scope of judicial power in a modern constitutional democracy. The book is a blend of insightful political philosophy and sound political analysis, and should be of interest even to those who disagree with his prescriptions for contemporary American judicial power.
Carrese operates with a clear awareness of the excesses of judicial power in America today. There is no question that he stands on the side of those who wish to rein in judicial activism. But his book does not fall into the category of works on the "originalism-nonoriginalism" debate. He is more interested in getting at the roots of modern judicial power, in leading political philosophers such as Montesquieu, Blackstone, Hamilton, and Tocqueville. He ultimately argues for a view of moderate judicial power based on a sound natural rights philosophy.
What makes his book particularly interesting is that, unlike many other opponents of modern judicial power, he doesn't draw a picture in which earlier liberal theorists and judges provided only a narrow scope for the operation of judicial power, which eventually was supplanted by dramatic assertions of modern judicial activism. Instead, he straightforwardly acknowledges that writers like Montesquieu and Blackstone attributed to the judiciary a very important role in modern liberal democracy, a role that was not merely legal but deeply political. At the same time, however, he contends that they tried to "cloak" judicial power in ways that limited and moderated it, thereby harmonizing it with liberal democratic principles. This moderate and cloaked judicial power stands in strong contrast to the immoderate assertions of contemporary judicial activism, founded on the skeptical philosophy of Oliver Wendell Holmes, Jr., which bid fair to undo the balanced liberal democracy of earlier theorists and threaten the rule of law.
Montesquieu, in Carrese's deft reading of him, provides a novel synthesis of liberal political philosophy and English common-law jurisprudence. He was the first liberal political philosopher to call for an independent judicial power (he, not Locke, being the source of our familiar separation of powers into legislative, executive, and judicial). The task of that power—based on Montesquieu's new conception of natural right, emphasizing the tranquility that individuals seek and the sympathy they share with their close fellows—was to provide political prudence and moderation and true individual security. Carrese provides a painstaking, systematic analysis of The Spirit of Laws (in four chapters) to show how Montesquieu employs subtle, "cloaked" judicial power to reorient political order toward a humane natural justice.
Blackstone was Montesquieu's great disciple, says Carrese. The author of Commentaries on the Laws of England understood Montesquieu's project of "quietly elevating judicial power and redefining liberalism in juridical terms." A stable, enduring constitutionalism based on separation of powers protects liberty, and the legal prudence of the judiciary best understands how to protect "natural right" for individuals in specific cases. It was these principles—liberty, complex constitutionalism, and natural right—that permitted humane judicial reform without falling into the immoderation of judicial legislation. Carrese shows how Blackstone's "general map of the elements of law" (concluding his lecture on liberal education in law) provides a guide to the true spirit of the Commentaries. A careful analysis of the Introduction and Book One shows how Blackstone subtly judicialized constitutionalism and laid the basis for moderate and subtle reform of various areas of English law in the rest of the Commentaries, of which Carrese provides an overview. His three chapters on Blackstone conclude with a description of Blackstone's conception of judicial power, drawn to a great extent from his characterization of the jurisprudence of Lord Mansfield, in which Carrese tries to show the deep differences between the reformism of Montesquieu and Blackstone and the more brash judicial assertiveness of Holmes.
The third part of the book considers Montesquieu's judicial legacy in America, which encompasses two profoundly different ways of developing his cloaked judicial power. The first way is Alexander Hamilton and John Marshall's blending of Montesquieuan liberalism with Sir Edward Coke's liberalized but more Aristotelian common law jurisprudence, infused now with the conceptions of fundamental law, natural law, and the rule of law embodied in the Declaration of Independence and the Constitution. Hamilton—and Tocqueville, adds Carrese—finds in American constitutionalism both judicial review and a common law capacity to temper liberal philosophy's rationalism and positivism. The second way of developing Montesquieu's cloaked judicial power is found in Oliver Wendell Holmes, Jr.'s "openly positivist, legislative, and evolutionary conception of judging," in which Montesquieuan conceptions of moderation and separation of powers and any traces of Coke's and Blackstone's moderating common law liberalism are repudiated.
In the context of discussing Montesquieu's American judicial legacy, Carrese moves toward a more critical evaluation of Montesquieu's project. He describes the doubts harbored by Hamilton and Tocqueville about "the viability of a liberal order devoted solely to popular sovereignty and individual security, suggesting a need to shore up human greatness and the rule of law in modern liberal democracy." But their attempt to moderate Montesquieu's liberalism is cast aside in Holmes' legal realism, in which courts and judges are placed at the center of political and legal reform. The strand of Montesquieu's thought that focuses on individual tranquility swallows up other elements such as "the distinctness of judicial power, the moderating effect of the rule of law, and the perpetuation of a sound constitutional order." He offers interesting speculation about whether the rise of judicial power—that is, the rise of an undemocratic form of power in a democratic age—bears out Tocqueville's observations that modern democracy may give rise to a powerful administrative state
Carrese uses privacy and abortion law (Roe v. Wade, and especially Planned Parenthood v. Casey) to describe Holmes's impact, on the critics as much as the proponents of these constitutional developments. Modern legal realism is at the root of both judicial assertions of individual rights anchored only in judges' idiosyncratic moral intuitions, and opposition to judicial activism anchored only in positivistic assertions of the power of majorities. Carrese finds an underlying connection between the inability to provide a foundation for law in general, not to mention for undemocratic institutions such as judicial review, and "the individualism that finds no mystery or sanctity in human life, no fixed or elevated meaning in law"—namely, "a modern skepticism leading us to eschew any meaning or order in nature independent of the human will, any reality to the traditional distinctions regarding what is higher or virtuous in human life." Only a common law constitutional jurisprudence (of the sort described in the work of James Stoner) avoids the twin pitfalls of modern legal realism and a skeptical majoritarianism.
Carrese concludes the book by suggesting that Montesquieuan jurisprudence can move in two directions. If it is leavened by the "judicial statesmanship of Hamilton and Tocqueville," then "the classic common-law spirit corrects the skeptical, atomistic tendency in liberal jurisprudence, while being open to a liberal concern with individual liberty and toleration." Unfortunately, American law and academia, shaped by Holmes and his descendants, has failed to see the need for such remedies, and the result has been legal pragmatism, assumptions about indeterminacy of meaning, and judicial legislation. This opens the way for John Rawls, who "elevates philosopher-judges above the Constitution because he elevates an evolving consensus over enduring right and principle."
Some contemporary political theorists, such as Michael Sandel, have criticized Rawls on the grounds that it is necessary to have some conception of the human good, but Carrese, seeing a link between "complex constitutionalism, republicanism, and principles of natural right" wants to go further, resurrecting "traditional moral realism about human nature and the good." While Montesquieu can teach us a great deal, he bears some responsibility for the problems engendered by today's "jurisprudence of individualism" that can be partly traced back to his (over)emphasis on the component of natural right concerned with individual security. As Tocqueville suggested, Montesquieu's modern liberalism may be "unable to provide the individual tranquility it promises, because the atomistic, amoral political order it fosters ultimately is untenable." Montesquieuan moderation and separation of powers have to be balanced by other resources of our constitutional and philosophical tradition (e.g., the more Aristotelian elements embedded in the common law).
Two interrelated problems remain, I think, for Carrese to address in his future scholarship, which may help to clarify the relation of his thought to "originalism." First, what is the relationship between the "cloaked" judicial power in Montesquieu and Blackstone and the power of judges in the American democratic republic—especially given the emergence of judicial review, a power quite distinct from the judicial power described by them? Should contemporary American judges—as long as they are moderate and properly informed by principles of natural right, as Carrese would have them be—see themselves as possessing a subtle, cloaked power to reform our law?
A good test case of this would be a Carresian, common-law analysis of Brown v. Board of Education. Assuming that we recognize that Brown does not accord with the original meaning of the Fourteenth Amendment (as, I think, a proper understanding of "equal protection" as a guarantee of security of person and property indicates), did the Supreme Court rightly pretend that it did, in order to help stimulate the (obviously right) movement toward racial equality? And, if the justices were right to do so, what are the resources to keep the use of such an extra-constitutional power "moderate"?
Related to the question of the scope of cloaked, reformist judicial power is a second question: what are the criteria for the exercise of judicial review by American judges? Carrese (like Jim Stoner) clearly finds attractive a sort of common-law jurisprudence that somehow combines judicial moderation, the rule of law, and principles of natural right. But the relation of those various elements, and how they are harmonized in the practice of judging (especially judicial review), remains unclear. In fact, one is tempted to think that this lack of clarity may be considered a virtue, a form of "muddling through" without sharply drawn lines of principle, which would permit judges to engage in mild reform without being compelled by the logic of clear-cut principles to extend the reform immoderately. Whether this could be harmonized with republicanism and the rule of law, even by the invocation of judicial "prudence" and "statesmanship" is open to reasonable doubt. Perhaps a greater measure of harmony could be achieved by confining judicial reformism to limited cases of common law and statutory interpretation, rather than constitutional law. (An example of this kind of limited judicial discretion appears in The Federalist, when Hamilton refers to judges "mitigating the severity and confining the operation of" unjust and partial laws.)
In The Cloaking of Power, Paul Carrese has established himself as a first-rate scholar working at the intersection of political philosophy and judicial politics. He demonstrates that our understanding of issues regarding the proper scope of judicial power will be seriously hampered if we fail to trace them to their roots by a thoughtful re-examination of the great founders of modern liberalism. And he demonstrates, as well, that sound judgment on issues of judicial power and individual rights depends on a careful balance of "complex constitutionalism, the rule of law, and principles of natural right."