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The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism. By Paul O. Carrese. (Chicago: University of Chicago Press, 2003. xiv, 335 pp. $39.00, ISBN 0-226-09482-0.)
The friends of the rule of law, the separation of powers, and natural law have not lately been much merry. In the second half of the twentieth century, American courts increasingly became lawmakers rather than adjudicators. Perceiving that state and federal legislators were slow to repeal statutes restraining private sexual conduct, that they were inappropriately placing burdens or prohibitions on the termination of pregnancies, and that they were insufficiently implementing civil rights and a secular public square, judges stepped in and overruled them. Behind the actions of these judges was the insight of Oliver Wendell Holmes Jr. and his legal realist followers that law is made for the...