Democracy in America

Tocqueville argues that judicial power is another key aspect of American particularity: “I do not think that, until now, any nation in the world has constituted judicial power in the same manner as the Americans” (93). Tocqueville notes that judicial power is not always visible; it acts only on particular cases and disputes brought to it. These traits also exist in the United States, but there “Americans have recognized in judges the right to found their rulings on the Constitution rather than on the laws. In other words, they have permitted them not to apply laws that might appear to them unconstitutional […] it is the origin of all powers” (95). Tocqueville supports this arrangement, as unlike in England, an American legislature does not make the constitution. Instead, it is the “first of all laws” (96). Tocqueville is particularly struck by the powers now closely associated with state and federal supreme courts.

The consequences of such rulings are obvious to Tocqueville: A law declared unconstitutional “loses part of its moral force” (96). But judges can only do this about particular laws or sections of laws, which Tocqueville argues keeps judges impartial. Additionally, not all laws are disputable in this format, so many will remain unchallenged. Tocqueville regards this judicial power as “one of the most powerful barriers that has ever been raised against the tyranny of political assemblies” (98). The Anglo-American tradition of jurisprudence rests on the assumption that “it was by little cases, brought within reach of the least citizens daily, that one succeeds in guaranteeing freedom, rather than by great proceedings to which one never has recourse or that one employs too late” (98). This differs profoundly from pre-revolutionary France, where the king could prevent the punishment of his officials easily. Tocqueville reasserts his belief in the rule of law as a crucial check on both absolute monarchy and too much democratic freedom.

Here Tocqueville considers the power of political bodies to exercise legal judgment, beginning with upper legislative houses in England and France, which can judge “political offenses” (100). He notes that impeachment powers in the United States involve the House of Representatives as the body that conducts impeachment proceedings, while the Senate holds trials. Unlike in European systems, where officials can be tried for all crimes, these powers apply only to public officials who have abused their offices. The goal of impeachment is “administrative action” to remove an official from power and is never applied to ordinary citizens (102-3). Tocqueville argues that the limited nature of these powers makes American legislators less afraid to use them and more able to resist “legislative tyranny” (104). An increase in trials would prove to him that the process had become politicized. Tocqueville applauds limited and restrained use of punitive powers, as he does any limitations on the authority of legislatures.