The Judiciary and the Rule of Law

Writing about the U.S. Supreme Court, Alexis de Tocqueville claimed that “a more imposing judicial power was never constituted by any people” (I, 150). He was struck by the enormous power of the judges, the high prestige of the legal profession, and the propensity of the people to turn their conflicts into justiciable issues. In continental Europe, by contrast, judges were subordinate officers of the state who would not even dream of voiding laws and decisions made by other government officials or holding them legally accountable—exactly what Tocqueville saw the U.S. courts doing again and again. Furthermore, he noted, in continental Europe the citizen “looks upon . . . [public goods] as unconnected with himself and as the property of a powerful stranger whom he calls the government. . . . [H]e braves the law with the spirit of a conquered foe as soon as its superior force is withdrawn; he perpetually oscillates between servitude and license” (I, 92–93). This also was in sharp contrast to the United States, ¹ where people were proudly conscious of their rights and ready to demand that they be respected in public meetings and in courts. ² He linked these observations to another, perhaps even more remarkable fact: In the United States, people exercised manifold rights and usually complied with their duties, and the courts had enormous power even in “the absence of what we [Europeans] term the Government, or the Administration. Written laws exist in America, and one sees that they are daily executed [despite the fact that] . . . the State has no administrative functionaries of its own stationed in different points of its territory” (I, 70).

How could this strange combination of numerous and effective rights, powerful courts, and an almost invisible state exist? How did this combination relate to the broader process of social equalization that so fascinated and frightened Tocqueville?

As usual, Tocqueville’s explanation is complex and it may be useful to reconstruct it. The explanation has three levels. One is focused on the behavior and beliefs of individuals, with which he begins and ends his account; another level is institutional; and a third embraces macrosocial factors. This explanation is interesting both per se and because it opens the way, in the spirit with which Tocqueville undertook his own work, to comparative issues of contemporary interest. In what follows, I first reconstruct Tocqueville’s explanation and later draw some brief comparative reflections.

Institutional Factors

Tocqueville found it remarkable that judges were obeyed even when they contradicted the preferences and policies of public officials. In the absence of a regular security force, the courts’ decisions were obeyed for a reason that was at the same time very simple and very difficult to explain: Most people took it as entirely natural that the courts’ decisions ought to be obeyed. Furthermore, they saw the courts as an effective guarantor of their rights.

What was the source of these rights and the way in which they were exercised? Tocqueville first turned to institutional factors, discussing two institutions that help explain this puzzle: federalism and frequent elections for practically all public offices. Federalism, he argued, was one of the greatest inventions of the U.S. Constitution. In contrast to unitary France, federalism created several legal jurisdictions and many potential conflicts among them. This required an institution placed above the contending parties—even above the federal government—with the authority to establish what was the law of the land. It followed that this institution—the judiciary—had to have its authority vested in it by the supreme law of the land, the Constitution. This was the only way to “form a uniform body of jurisprudence for the interpretation of the laws of the Union” (I, 143). Otherwise, as Tocqueville insisted, chaos would have resulted from jurisdictional conflicts among states and municipalities and between these subnational units and the federal government. In addition, Tocqueville noted the curious fact that the authority to rule statutes unconstitutional was vested not only in the Supreme Court but in all the courts. ³ This authority of “the American magistrate . . . gives rise to immense political influence...