Montesquieu, Blackstone, and the Rise of Judicial Activism
Author: Paul O. Carrese
Publisher: University of Chicago Press
How did the US judiciary become so powerful—powerful enough that state and federal judges once vied to decide a presidential election? What does this prominence mean for the law, constitutionalism, and liberal democracy? In The Cloaking of Power, Paul O. Carrese provides a provocative analysis of the intellectual sources of today’s powerful judiciary, arguing that Montesquieu, in his Spirit of the Laws, first articulated a new conception of the separation of powers and strong but subtle courts. Montesquieu instructed statesmen to “cloak power” by placing judges at the center of politics, while concealing them behind juries and subtle reforms. Tracing this conception through Blackstone, Hamilton, and Tocqueville, Carrese shows how it led to the prominence of judges, courts, and lawyers in America today. But he places the blame for contemporary judicial activism squarely at the feet of Oliver Wendell Holmes Jr. and his jurisprudential revolution, which he believes to be the source of the now-prevalent view that judging is merely political. To address this crisis, Carrese argues for a rediscovery of an independent judiciary—one that blends prudence and natural law with common law and that observes the moderate jurisprudence of Montesquieu and Blackstone, balancing abstract principles with realistic views of human nature and institutions. He also advocates for a return to the complex constitutionalism of the American founders and Tocqueville and for judges who understand their responsibility to elevate citizens above individualism, instructing them in law and right.
Murray P. Dry and the Nexus of Liberal Education and Politics
Author: Giorgi Areshidze,Paul O. Carrese ,Suzanna Sherry
Publisher: SUNY Press
Category: Political Science
Leading scholars and legal practitioners explore constitutional, legal, and philosophical topics. In Constitutionalism, Executive Power, and the Spirit of Moderation, contributors ranging from scholars to practitioners in the federal executive and judicial branches blend philosophical and political modes of analysis to examine a variety of constitutional, legal, and philosophical topics. Part 1, “The Role of Courts in Constitutional Democracy,” analyzes the proper functions and limits of the judiciary and judicial decision making in constitutional government. Part 2, “Law and Executive Authority,” reflects on the tensions between constitutionalism and presidential leadership in both domestic and international arenas. Part 3, “Liberal Education, Constitutionalism, and Philosophic Moderation,” shifts the focus to the relationship between constitutionalism and political philosophy, and especially to the modern modes of philosophy that most directly influenced the American Founders. A valuable resource for specialists, the book also will be of use in political science and law school classes.
In this revised and updated edition of a classic text, one of America's leading constitutional theorists presents a brief but well-balanced history of judicial review and summarizes the arguments both for and against judicial activism within the context of American democracy. Christopher Wolfe demonstrates how modern courts have used their power to create new "rights" with fateful political consequences and he challenges popular opinions held by many contemporary legal scholars. This is important reading for anyone interested in the role of the judiciary within American politics. Praise for the first edition of Judicial Activism: "This is a splendid contribution to the literature, integrating for the first time between two covers an extensive debate, honestly and dispassionately presented, on the role of courts in American policy. Stanley C. Brubaker, Colgate University"
Recovering the Liberalism of Hume, Smith, Montesquieu, and Voltaire
Author: Dennis C. Rasmussen
Publisher: Cambridge University Press
This is a study of the political theory of the Enlightenment, focusing on four leading eighteenth-century thinkers: David Hume, Adam Smith, Montesquieu and Voltaire. Dennis C. Rasmussen calls attention to the particular strand of the Enlightenment these thinkers represent, which he terms the 'pragmatic Enlightenment'. He defends this strand of Enlightenment thought against both the Enlightenment's critics and some of the more idealistic Enlightenment figures who tend to have more followers today, such as John Locke, Immanuel Kant and Jeremy Bentham. Professor Rasmussen argues that Hume, Smith, Montesquieu and Voltaire exemplify an especially attractive type of liberalism, one that is more realistic, moderate, flexible, and contextually sensitive than most other branches of this tradition.
A Seminal Text in National and International Contexts
Author: Wilfrid Prest
Publisher: Bloomsbury Publishing
This collection explores the remarkable impact and continuing influence of William Blackstone's Commentaries on the Laws of England, from the work's original publication in the 1760s down to the present. Contributions by cultural and literary scholars, and intellectual and legal historians trace the manner in which this truly seminal text has established its authority well beyond the author's native shores or his own limited lifespan. In the first section, 'Words and Visions', Kathryn Temple, Simon Stern, Cristina S Martinez and Michael Meehan discuss the Commentaries' aesthetic and literary qualities as factors contributing to the work's unique status in Anglo-American legal culture. The second group of essays traces the nature and dimensions of Blackstone's impact in various jurisdictions outside England, namely Quebec (Michel Morin), Louisiana and the United States more generally (John W Cairns and Stephen M Sheppard), North Carolina (John V Orth) and Australasia (Wilfrid Prest). Finally Horst Dippel, Paul Halliday and Ruth Paley examine aspects of Blackstone's influential constitutional and political ideas, while Jessie Allen concludes the volume with a personal account of 'Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone'. This volume is a sequel to the well-received collection Blackstone and his Commentaries: Biography, Law, History (Hart Publishing, 2009).
The Philosophical Problems of Copyright and Appropriation
Author: Darren Hudson Hick
Publisher: University of Chicago Press
The art scene today is one of appropriation—of remixing, reusing, and recombining the works of other artists. From the musical mash-ups of Girl Talk to the pop-culture borrowings of Damien Hirst and Jeff Koons, it’s clear that the artistic landscape is shifting—which leads to some tricky legal and philosophical questions. In this up-to-date, thorough, and accessible analysis of the right to copyright, Darren Hudson Hick works to reconcile the growing practice of artistic appropriation with innovative views of artists’ rights, both legal and moral. Engaging with long-standing debates about the nature of originality, authorship, and artists’ rights, Hick examines the philosophical challenges presented by the role of intellectual property in the artworld and vice versa. Using real-life examples of artists who have incorporated copyrighted works into their art, he explores issues of artistic creation and the nature of infringement as they are informed by analytical aesthetics and legal and critical theory. Ultimately, Artistic License provides a critical and systematic analysis of the key philosophical issues that underlie copyright policy, rethinking the relationship between artist, artwork, and the law.
In "Judicial Reputation: A Comparative Theory, "Tom Ginsburg and Nuno Garoupa mean to explain how judges respond to the reputational incentives provided by the different audiences they interact with--lawyers and law professors; politicians; the media; and the public itself--as well as how legal systems design their judicial institutions to calibrate the locally appropriate balance among audiences. Making use by turns of careful empirical work and penetrating conceptual insights, Ginsburg and Garoupa argue that any given judicial structure is best understood not through the lens of legal culture, origin, or tradition, but through the economics of information and reputation.
Barber shows that New Right theorists, such as Bork, and establishment liberals, such as Ronald Dworkin, are moral relativists who cannot escape conclusions ("might makes right," for example) that could destroy constitutionalism in America. The best hope for American freedoms, Barber argues, is to revive classical constitutionalism - and he explains how new movements in philosophy today allow the Court's friends to do just that. Written in a lively and engaging style.
Considered from Both a Civil and Criminal Standpoint
Author: Christopher Gustavus Tiedeman
Publisher: The Lawbook Exchange, Ltd.
Tiedeman, Christopher G. A Treatise on State and Federal Control of Persons and Property in the United States Considered from both a Civil and Criminal Standpoint. St. Louis: The F.H. Thomas Law Book Co., 1900. Two volumes. Reprinted 2002 by The Lawbook Exchange, Ltd. ISBN 1-58477-229-8. Cloth. $195. * A conservative jurist known for his important study A Treatise on the Limitations of Police Power in the United States Considered from Both a Civil and Criminal Standpoint, Tiedeman [1857-1903] completed this work at a time when the spirit of social and economic laissez-faire of the Gilded Age was giving way to demands for greater degrees of governmental regulation in response to the emergence of modern corporate capitalism and, especially, the rapid growth of Socialism, Communism, and Anarchism. For Tiedeman, the fundamental issue is the need to control these groups in the interests of public order while preserving their rights of self-determination as guaranteed by the Constitution. He was optimistic that popular faith in the Constitution is strong enough to maintain this delicate balance.
Originalism, Constitutional Interpretation, and Judicial Power
Author: Christopher Wolfe
Publisher: Rowman & Littlefield
This text challenges popular opinions held by many legal scholars by presenting a defence of originalist interpretations of the US Constitution. The author's controversial conclusions expand the debate over the understanding of original intention.
Democracy-government by the people, or directly responsible to them-was not the object which the framers of the American Constitution had in view, but the very thing which they wished to avoid. In the convention which drafted that instrument it was recognized that democratic ideas had made sufficient progress among the masses to put an insurmountable obstacle in the way of any plan of government which did not confer at least the form of political power upon the people. Accordingly the efforts of the Constitutional Convention were directed to the task of devising a system of government which was just popular enough not to excite general opposition and which at the same time gave to the people as little as possible of the substance of political power.-from "Chapter III: The Constitution Reactionary Document"It was written a century ago, in 1907, but this rethinking of the legacy of the American founding fathers continues to inspire historical revisionists today. The opening salvo in what was to become a cottage industry of conspiracy theories, this startling and angry work posits that the American Constitution is not, in fact, a bastion of power-to-the-people philosophy but is, rather, the result of a political plot by the economic elite of the colonies to retain as much supremacy as possible for themselves.A shattering blow to the iconic images of the men who made America, this is a provocative and shocking read.OF INTEREST TO: readers of American history, students of the culture warsJAMES ALLEN SMITH (1860-1926) was professor of political science at the University of Washington.
This text studies the inextricable links between law, society, and politics through an in-depth examination of the institutions for law-making in the United States, focusing on the function, structure, and participants in the process. The institutions-oriented approach focuses on contemporary coverage of the interrelationship between law and society, and includes discussion of controversial topics, such as the influence of race, class, gender, and corporate governance on the law. Law, Politics, and Society also looks at the theoretical and philosophical foundations of American law and provides comparative and international perspectives. Diversity is embedded into each chapter within the readings—drawn from a broad range of interdisciplinary sources such as sociology, history, and medicine—as well as in activities, which encourage discussion about law and race, national origin, gender, and class. In addition, excellent coverage of how the law has changed since September 11, 2001 helps students understand these complex relationships in a tangible way. Popular Culture features use a series of photographs to help students understand how law both informs and is informed by popular culture. Law in Action features apply the concepts of each chapter to an actual law in order to illustrate the central point and to help students better understand theoretical concepts.