Lawyers and Liberal Democracy

If Alexis de Tocqueville was a democrat by conviction, he was quite clearly a liberal democrat. The excesses of the French Revolution had hardened the French aristocrat against unbridled majoritarianism. Sharing the liberal democrat’s fear of the “tyranny of the majority,” Tocqueville believed that “if ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority.” Therefore in examining American democracy, Tocqueville looked, among other things, for those “Causes Which Mitigate the Tyranny of the Majority in the United States.” His reflections on this subject, contained in Chapter 16 of Volume I of Democracy in America, focus in considerable part on the role that lawyers played in American government. In Tocqueville’s view, “the authority which they [Americans] have entrusted to members of the legal profession, and the influence that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy” (I, 272).

Perhaps Tocqueville was merely exhibiting professional solidarity, since he himself had studied law and had begun his career as a magistrate at Versailles in the 1820s. But he offers more general arguments in support of his view that lawyers are essential to the workings of democracy: “Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude” (I, 273). Thus, to the degree lawyers assumed a significant and prominent role in government, Tocqueville believed they would act to contain the tendency toward tyranny of the majority. Lawyers, in short, were essential, indeed indispensable, to making democracy liberal.

In Tocqueville’s America this role was institutionalized in the form of an unelected federal judiciary that not only was independent of both the legislature and the executive but also had the power (self-asserted, thanks to Chief Justice John Marshall) to strike down laws passed by the legislature as unconstitutional. In effect, lawyers, in their capacity as judges, were capable of frustrating the will of the majority through the exercise of judicial review. Since judicial power is passive, however, it was left to another category of lawyers—those of the private bar—to initiate, on behalf of their clients, appropriate legal challenges to improper exercises of legislative power. In a country where “scarcely any political question arises . . . that is not resolved, sooner or later, into a judicial question” (I, 280), this meant that the bar and the bench, acting together, possessed substantial countervailing power.

Litigation and adjudication were by no means the only avenues by which lawyers in Tocqueville’s America could intervene to restrain populist passions. Lawyers also participated more directly in democratic politics. “The government of democracy,” Tocqueville wrote, “is favorable to the political power of lawyers; for when the wealthy, the noble and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice” (I, 275). Tocqueville argued that lawyers, though inclined by training and taste toward the aristocratic class, “belong to the people by birth and interest” (I, 276) and are therefore less likely to incur their mistrust and suspicion. “As lawyers form the only enlightened class whom the people do not mistrust, they are naturally called upon to occupy most of the public stations. They fill the legislative assemblies and are at the head of the administration; they consequently exercise a powerful influence upon the formation of the law and upon its execution” (I, 279). But Tocqueville also believed that in their role as legislators and officers of the executive, lawyers, rather than serving merely as conduits for translating the people’s passions into law and policy, would mediate, tame, and even divert such passions and thereby block the excesses of majority rule.

Whose interests, then, did lawyers seek to protect, if not those...