This one will be familiar to many CLR Forum readers, but I was reminded of Alexis de Tocqueville’s wonderful work of comparative political science, Democracy in America (1835 & 1840) (readable in its entirety for free, people, for free!) as I was preparing for my constitutional law class this spring. Rather than reproducing the well-known tracts about American “democratic” religion, here’s a fragment from Tocqueville’s superb discussion of the unique position of the American federal judiciary. Note in particular Tocqueville’s emphasis toward the end of the section I’ve reproduced on the fact that the American judge does not deal in “theoretical generalities,” but in very discrete factual particulars. A proto-minimalist passage, perhaps. From Volume I:
The first characteristic of judicial power in all nations is the duty of arbitration. But rights must be contested in order to warrant the interference of a tribunal; and an action must be brought before the decision of a judge can be had. As long, therefore, as a law is uncontested, the judicial authority is not called upon to discuss it, and it may exist without being perceived. When a judge in a given case attacks a law relating to that case, he extends the circle of his customary duties, without, however, stepping beyond it, since he is in some measure obliged to decide upon the law in order to decide the case. But if he pronounces upon a law without proceeding from a case, he clearly steps beyond his sphere and invades that of the legislative authority.
The second characteristic of judicial power is that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important and perhaps a more useful influence than that of the magistrate, but he ceases to represent the judicial power.
The third characteristic of the judicial power is that it can act only when it is called upon, or when, in legal phrase, it has taken cognizance of an affair. This characteristic is less general than the other two; but, notwithstanding the exceptions, I think it may be regarded as essential. The judicial power is, by its nature, devoid of action; it must be put in motion in order to produce a result. When it is called upon to repress a crime, it punishes the criminal; when a wrong is to be redressed, it is ready to redress it; when an act requires interpretation, it is prepared to interpret it; but it does not pursue criminals, hunt out wrongs, or examine evidence of its own accord. A judicial functionary who should take the initiative and usurp the censureship of the laws would in some measure do violence to the passive nature of his authority.
The Americans have retained these three distinguishing characteristics of the judicial power: an American judge can pronounce a decision only when litigation has arisen, he is conversant only with special cases, and he cannot act until the cause has been duly brought before the court. His position is therefore exactly the same as that of the magistrates of other nations, and yet he is invested with immense political power. How does this come about? If the sphere of his authority and his means of action are the same as those of other judges, whence does he derive a power which they do not possess? The cause of this difference lies in the simple fact that the Americans have acknowledged the right of judges to found their decisions on the Constitution rather than on the laws. In other words, they have permitted them not to apply such laws as may appear to them to be unconstitutional.
I am aware that a similar right has been sometimes claimed, but claimed in vain, by courts of justice in other countries; but in America it is recognized by all the authorities; and not a party, not so much as an individual, is found to contest it. This fact can be explained only by the principles of the American constitutions. In France the constitution is, or at least is supposed to be, immutable; and the received theory is that no power has the right of changing any part of it. In England the constitution may change continually, or rather it does not in reality exist; the Parliament is at once a legislative and a constituent assembly. The political theories of America are more simple and more rational. An American constitution is not supposed to be immutable, as in France; nor is it susceptible of modification by the ordinary powers of society, as in England. It constitutes a detached whole, which, as it represents the will of the whole people, is no less binding on the legislator than on the private citizen, but which may be altered by the will of the people in predetermined cases, according to established rules. In America the Constitution may therefore vary; but as long as it exists, it is the origin of all authority, and the sole vehicle of the predominating force.
It is easy to perceive how these differences must act upon the position and the rights of the judicial bodies in the three countries I have cited. If in France the tribunals were authorized to disobey the laws on the ground of their being opposed to the constitution, the constituent power would in fact be placed in their hands, since they alone would have the right of interpreting a consituation of which no authority could change the terms. They would therefore take the place of the nation and exercise as absolute a sway over society as the inherent weakness of judicial power would allow them to do. Undoubtedly, as the French judges are incompetent to declare a law to be unconstitutional, the power of changing the constitution is indirectly given to the legislative body, since no legal barrier would oppose the alterations that it might prescribe But it is still better to grant the power of changing the constitution of the people to men who represent (however imperfectly) the will of the people than to men who represent no one but themselves.
It would be still more unreasonable to invest the English judges with the right of resisting the decisions of the legislative body, since the Parliament which makes the laws also makes the constitution; and consequently a law emanating from the three estates of the realm can in no case be unconstitutional. But neither of these remarks is applicable to America.
In the United States the Constitution governs the legislator as much as the private citizen: as it is the first of laws, it cannot be modified by a law; and it is therefore just that the tribunals should obey the Constitution in preference to any law. This condition belongs to the very essence of the judicature; for to select that legal obligation by which he is most strictly bound is in some sort the natural right of every magistrate.
In France the constitution is also the first of laws, and the judges have the same right to take it as the ground of their decisions; but were they to exercise this right, they must perforce encroach on rights more sacred than their own: namely, on those of society, in whose name they are acting. In this case reasons of state clearly prevail over ordinary motives. In America, where the nation can always reduce its magistrates to obedience by changing its Constitution, no danger of this kind is to be feared. Upon this point, therefore, the political and the logical reason agree, and the people as well as the judges preserve their privileges.
Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule; this power is the only one peculiar to the American magistrate, but it gives rise to immense political influence. In truth, few laws can escape the searching analysis of the judicial power for any length of time, for there are few that are not prejudicial to some private interest or other, and none that may not be brought before a court of justice by the choice of parties or by the necessity of the case. But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority, and similar suits are multiplied until it becomes powerless. The alternative, then, is, that the people must alter the Constitution or the legislature must repeal the law. The political power which the Americans have entrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. If the judge had been empowered to contest the law on the ground of theoretical generalities, if he were able to take the initiative and to censure the legislator, he would play a prominent political part; and as the champion or the antagonist of a party, he would have brought the hostile passions of the nation into the conflict. But when a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished but its authority is not taken away; and its final destruction can be accomplished only by the reiterated attacks of judicial functionaries. It will be seen, also, that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.
I am inclined to believe this practice of the American courts to be at once most favorable to liberty and to public order. If the judge could attack the legislator only openly and directly, he would sometimes be afraid to oppose him; and at other times party spirit might encourage him to brave it at every turn. The laws would consequently be attacked when the power from which they emanated was weak, and obeyed when it was strong; that is to say, when it would be useful to respect them, they would often be contested; and when it would be easy to convert them into an instrument of oppression, they would be respected. But the American judge is brought into the political arena independently of his own will. He judges the law only because he is obliged to judge a case. The political question that he is called upon to resolve is connected with the interests of the parties, and he cannot refuse to decide it without a denial of justice. He performs his functions as a citizen by fulfilling the precise duties which belong to his profession as a magistrate. It is true that, upon this system, the judicial censorship of the courts of justice over the legislature cannot extend to all laws indiscriminately, inasmuch as some of them can never give rise to that precise species of contest which is termed a lawsuit; and even when such a contest is possible, it may happen that no one cares to bring it before a court of justice. The Americans have often felt this inconvenience; but they have left the remedy incomplete, lest they should give it an efficacy that might in some cases prove dangerous. Within these limits the power vested in the American courts of justice of pronouncing a statute to be unconstitutional forms one of the most powerful barriers that have ever been devised against the tyranny of political assemblies.