Judicial Ideology and the Survival of the Rule of Law: A Field Guide to the Current Political Political War over the Judiciary
Judicial Ideology and the Survival of the Rule of Law: A Field Guide to the Current Political Political War over the Judiciary
Stephen B. Presser, 39 Loy. U. Chi. L.J. 427 (2008)
While virtually the entire legal academy has eschewed the notion for some time, one can still find those outside academia who claim that ours “is a government of laws, not men.” The assertion that courts follow the law and do not make it up as they go along is arguably the single most important principle that guided the framers of the Constitution. In the famous Federalist No. 78, the essay that set forth the justification of judicial review, Hamilton quotes the Baron de Montesquieu’s argument that “there is no liberty if the power of judging be not separated from the legislative and executive powers.” Montesquieu’s thoughts mirrored those of Sir William Blackstone, the man who wrote the books that profoundly aided the formation and development of an American Common Law.