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.

Montesquieu is rightly famous as a tireless critic of despotism, which he associates in his writings overtly with Asia and the Middle East and not with the apparently more moderate Western models of governance found throughout Europe. However, a careful reading of Montesquieu reveals that he recognizes a susceptibility to despotic practices in the West—and that the threat emanates not from the East, but from certain despotic ideas that inform such Western institutions as the French monarchy and the Roman Catholic Church.
           
Nowhere is Montesquieu’s critique of the despotic ideas of Europe more powerful than in his enormously influential The Spirit of the Laws, and Vickie B. Sullivan guides readers through Montesquieu’s sometimes veiled, yet sharply critical accounts of Machiavelli, Hobbes, Aristotle, and Plato, as well as various Christian thinkers. He finds deleterious consequences, for example, in brutal Machiavellianism, in Hobbes’s justifications for the rule of one, in Plato’s reasoning that denied slaves the right of natural defense, and in the Christian teachings that equated heresy with treason and informed the Inquisition.

In this new reading of Montesquieu’s masterwork, Sullivan corrects the misconception that it offers simple, objective observations, showing it instead to be a powerful critique of European politics that would become remarkably and regrettably prescient after Montesquieu’s death when despotism wound its way through Europe.