DemocracyinAmericaNotes - Alexis de Tocqueville Democracy...

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Alexis de Tocqueville, Democracy in America In evaluating the judiciary, Tocqueville asserts that America justices are more powerful than their counterparts elsewhere, because, “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,” (Book I, Chapter 6). In describing why this principle is approved of in America, Tocqueville posits, “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…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,” (Book I, Chapter 6). Tocqueville notes that the arrangement of the American system guarantees that a) someone will be unhappy with any given law and b) citizens are rational and able to discern legal means to attempt to nullify laws. He thus is sure that judicial review is and will continue to be a major component of the system, “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
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This note was uploaded on 02/25/2012 for the course 790 376 taught by Professor Murphy during the Spring '09 term at Rutgers.

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DemocracyinAmericaNotes - Alexis de Tocqueville Democracy...

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