Paul Carrese

Democracy in Moderation views constitutional liberal democracy as grounded in a principle of avoiding extremes and striking the right balance among its defining principles of liberty, equality, religion, and sustainable order, thus tempering tendencies toward sectarian excess. Such moderation originally informed liberal democracy, but now is neglected. Moderation can guide us intellectually and practically about domestic and foreign policy debates, but also serve the sustainability of the constitutional, liberal republic as a whole. Our recent theory thus doesn't help our practice, given our concerns about polarization and sectarianism in ideas, policy, and politics. A rediscovery of Montesquieu and his legacy in shaping America's complex political order, including influence on Washington's practical moderation and Tocqueville's philosophical moderation, addresses these enduring theoretical and practical problems. Moderation also offers a deeper theory of leadership or statesmanship, particularly regarding religion and politics, and of foreign policy and strategy rooted in liberal democracy's first principles.

This dissertation argues that the independence of judging in The Spirit of the Laws is Montesquieu's contribution to separation of powers and liberal constitutionalism. By transforming existing conceptions of judging, and through influence on later thinkers and statesmen, Montesquieu cloaked his reform of constitutionalism in the robes of an invisibly powerful judiciary. ;Montesquieu is one source of the juridical bent to politics in today's liberal democracies. His links to America's judiciary include Blackstone and Hamilton, who learned from him of a spirit of "moderation" which blends popular rule with quiet reform by judges and lawyers. This conception is obscured in Spirit of the Laws, since judging must remain "invisible" and seemingly "null" if it is to temper faction and protect individuals. Still, Montesquieu states that "the masterwork of legislation is to know how to place well the power of judging," that knowledge of "the surest rules one can observe in criminal judgments, concerns mankind more than anything else in the world," and, "it is only on the practice of this knowledge that liberty can be founded." ;Part One examines spirit, law, judging, and moderation in Spirit of the Laws. The early Books praise monarchy and critique republicanism by emphasizing a judicial 'depository' of moderation, law, and individual security. In Book XI judging is the key to moderate politics and separation of powers. Montesquieu is compared to Hobbes, Locke, and Coke on these points. ;Part Two examines Montesquieu's educating of a new breed of lawyers and judges in a new conception of prudence. Later portions of Spirit of the Laws instruct in reform of criminal law, toleration as to morals and religion, and a new historical jurisprudence. ;The Conclusion examines adaptations by Blackstone, Hamilton, and Tocqueville of this cloaking of power, and its legacy. Since Montesquieuan judging emphasizes individual security and politicizes judges, the question of its viability or perpetuation arises. Still, Montesquieu's endorsement of constitutionalism, rational inquiry, and natural right are recommended to today's political science, jurisprudence, and constitutionalism

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.

Alan Gibson has invited me to discuss publicly some of the issues I raised in my referee's report for History of Political Thought on his article ‘Ancients, Moderns and Americans: The Republicanism- Liberalism Debate Revisited’. I gladly accepted, not least because a dialogue on views of the American Founding is fitting both for the subject and Gibson's instructive characterization of it. The Federalist opens by identifying candid debate as a fundamental achievement for young America, giving hope that reflection and choice, not just accident and force, can govern humans. Similarly, Gibson's argument that America's formative political thought comprises ‘multiple traditions’ — including Lockean liberalism, the republicanism of English opposition writings, and other influences — seems to define the Founding as not a monologue but a lively dialogue. I agree that complexity and not a single, pure strain of thought defines America's Founding, but this is not to say there are no fundamental principles for which the Founding stands. In the spirit of candid exchange, I will not discuss the many points in Dr Gibson's article with which I agree but those where one might interpret the American Founding differently or find an important dimension overlooked