Essay 10: On Judicial Power in the United States and Its Action on Political Society – Volume 1 Part 1 Chapter 6 of Democracy in America by Alexis De Tocqueville

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 93 (starting at chapter 6) through 99 of this edition of Democracy in America.

Alexis De Tocqueville entitles Volume One, Part One, Chapter 6 of Democracy in America “On Judicial Power in the United States and Its Action on Political Society.” He attempts to describe American judicial institutions as if they were all of one model, along the way comparing them to the French courts more familiar to him and to his intended readers. Particularly notable to De Tocqueville as a foreign observer was the political role of American courts that we Americans have come to take for granted. “ The judicial power[‘s] … political power is so great,” he explains, “that it appeared to me that to speak of it in passing would diminish it in the eyes of readers.”

Federal, republican, and elective governments are not peculiar to America, this Frenchman notes, but the American judiciary is unique. Its weight is felt in every political discussion. In regard to particular cases, it exercises its power as other countries’ judiciaries do — “as an arbiter” between parties, “on particular cases and not on general principles” (that is, not on an advisory or legislative basis), and “only when it is appealed to” (that is, when a case is properly brought before it).

Yet, American judges, De Tocqueville insists, have political power of a remarkable kind: “Americans have recognized in judges the right to found their rulings on the Constitution rather than on the laws.” What he has in mind is that American judges exercise the power of judicial review, which he classifies as political, not legal. To an American, this distinction is jarring. We have all been indoctrinated in the idea, captured in Article VI of the United States Constitution and forcefully said to have been the bedrock of judicial review by Chief Justice John Marshall in Marbury v. Madison, that judicial review is precisely a legal function, that what is happening when a judge says a statute is to be inoperative (“struck down”) on the basis of unconstitutionality is that inferior law is being made to yield to superior law. As Marshall put it, “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”
It was by political acts that the sovereign states, following the Article VII ratification process, put the U.S. Constitution into effect, yes, but determining whether a law is constitutional in a case brought before it by one of the parties is for an American court a legal task, not a political one. De Tocqueville essentially concedes this point without making it when he notes that in America the people can, when they so desire, change a constitution (state or federal).

After comparing the relationships between law and constitution in the American system to the relationships between law and constitution in France and in Britain, De Tocqueville asserts that there is little to fear from judicial decisions holding laws unconstitutional, as they will only affect the particular cases the judges are deciding. Whether a statute will be repealed because unconstitutional is a question that will only be decided after several related cases have been adjudicated. Here our author is simply mistaken: decisions holding statutes unconstitutional have commonly had immediate and general effect since American courts first exercised the power of judicial review.

De Tocqueville next asserts that judges exercise the power of judicial review only despite themselves. They have no impulse to do so, he says. We are familiar with numerous instances in which Americans certainly were, or at least seem to have been, anxious to exercise the power of judicial review. At least one of them, the Supreme Court case of McCulloch v. Maryland (1819), ought to have been known to De Tocqueville. There had already been numerous cases of judicial review in federal courts by the 1830s, when De Tocqueville wrote his book, and they have come to be quite numerous now.

De Tocqueville closes this chapter with consideration of Article 75 of the French Constitution of year VIII (1799), which made Napoléon Bonaparte first consul. Under that constitution, he says, a government official could only be tried after the Council of State had decided he could. American courts have no need of such permission, he notes.

Kevin R. C. Gutzman, J.D., Ph.D. is Professor and former Chairman in the Department of History, Philosophy & World Perspectives at Western Connecticut State University. He is the author of six books in the history of the American Revolution and Early Republic, one of which was a New York Times bestseller, two of which were book club main selections, and one of which was named one of the ten outstanding conservative books of 2007. His latest is The Jeffersonians: The Visionary Presidencies of Jefferson, Madison, and Monroe.

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