democracy in america III: the judiciary
by j.d. – 20 June 2007 at 19:06
This is the third full-length post in a series on Alexis de Tocqueville’s Democracy in America, a look at 19th century America through the eyes of a Frenchman. This series was touched off some weeks ago by Joel. This is a book that should be required reading in every American high school or university.
We’re up to Chapters VI and VII, which discuss the finer points of the American judicial system. The American judiciary is one of the three corners upon which the American enterprise rests, and I think Tocqueville’s observations1 hold up over time.
The American judiciary was and is really an amazing thing. Tocqueville’s basic observation is that if the judiciary had one ounce of power more or less than it is defined to have in the Constitution, then America would be something less than it is, and I think that’s accurate.
Tocqueville argued that, under the American model, the power of the judiciary was immense within its usual sphere of operation and was squelched outside of it. He argued that this was the only state of affairs possible in a place which claims to place liberty first among all principles, as we’ll see.
First, we’ll need to define what’s meant by the “usual sphere of operation” of the judiciary. The essential characteristics of a judiciary, according to Tocqueville, were tripartite:
- Arbitration of disputes
- Pronouncements on specific, well-defined cases rather than on general principles
- Action only on those specific cases which are brought before it
There is a fourth characteristic peculiar to the American judiciary which Tocqueville mentions, but we’ll reveal it later.
The problems that face us today with these three elements have mostly to do with bloat and inefficiency. That “speedy trial”, in Douglas County, Kansas at least, takes anywhere from 75 to 140 days2. There are two reasons for this — it is too difficult to throw out or shut down obviously absurd cases, and there are too many things that rise to the level of court arbitration — one example, in my opinion, being simple marijuana possession. I’m not proposing that anything be done about the first of these; the fact that even cranks get their day is a feature, not a bug. We can do something about which crimes we choose to turn the wheels of justice for and which we choose to pass by. I believe the Founders did not intend for there to be a long list of offenses that might land one in the slammer after time-consuming trials; rather, that there are a smaller number of crimes, such as stealing, murder, and the like, that are punished harshly, while other crimes which do not impinge upon the individual rights of others — like simple marijuana possession — that are dealt with using judicial discretion and more expedient (and dare I say more effective) means. When the judicial system is efficient and temperate, justice is reached more surely.
Now, several nations have had judicial systems this well-developed for hundreds of years. What makes the American system different? Tocqueville answers:
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.1 In England the constitution may change continually,2 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.
The Constitution, in America, is the highest law, one that constrains even the judges, and it is recognized as such by the American people. That’s what makes the American judiciary work well.
That’s not to say that mistakes don’t exist — sometimes the innocent man is found guilty, and sometimes the judge reaches an unpopular and sometimes flat-out puzzling decision (cf. Kelo). The judiciary in America, however, gets right well more than it gets wrong.
Next time, we’ll take a look at that august document which is the topic of Chapter VIII. All previous posts in this series may be found by clicking the Democracy in America link in the sidebar.
1: Don’t forget that Tocqueville was writing of 1830s America, when “justice” excluded women, black people, and a whole host of other people. Now that they are largely included, however, I still think his observations hold up.
2: So says the 2005 statistics provided by the Kansas judiciary. Requires Excel or equivalent. Frankly, I thought it would be longer.

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