Resolving political questions into judicial questions: Tocqueville's thesis revisited.

Author:Graber, Mark A.

Americans throughout the Jacksonian era bitterly disputed the proper use of the President's veto power. Whigs insisted that Democratic Presidents were abusing an authority to reject legislation originally intended to be confined largely to unconstitutional measures." The powers of Congress are paralyzed," Henry Clay complained, "by frequent and an extraordinary exercise of the executive veto, not anticipated by the founders of the constitution, and not practiced by any of the predecessors" of Andrew Jackson. (1) Democrats insisted Jacksonian Presidents were acting well within their Article II powers when preventing from becoming law bills incorporating a new national bank and funding internal improvements. The veto power, future president James Buchanan informed Congress, "is a mere power to arrest hasty and inconsiderate changes, until the voice of the people, who are alike the masters of Senators, Representatives and President, shall be heard." (2) President Jackson was censured and President John Tyler nearly impeached in part over controversies arising out of their exercise of the veto. (3)

The federal judiciary was the only branch of the national government whose members refrained from expressing official opinions on the proper constitutional use of the veto power. Many Supreme Court justices had strong personal opinions on that issue. Chief Justice Taney while Attorney General helped

draft Jackson's message vetoing the bill rechartering the national bank. Levi Woodbury when in Congress vigorously defended Tyler's aggressive use of the veto power. (4) Nevertheless, the numerous political and constitutional questions raised by the way Jacksonian presidents wielded the veto power were never resolved into judicial questions. No federal justice ever expressed an official judicial opinion on the constitutionality of pocket vetoes or on whether the veto power could be constitutionally exercised only when rejecting unconstitutional legislation. Constitutional questions associated with the veto in Jacksonian America were resolved entirely by nonjudicial processes.

These debates over presidential power in antebellum America belie Tocqueville's famous assertion, "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (5) The more accurate assertion when Tocqueville wrote is, "scarcely any national political question" arose that was "resolved into a judicial question." With the exception of slavery, the prominent political questions that dominated national politics during the 1830s, 1840s, and 1850s did not become federal judicial questions. Federal courts during the three decades before the Civil War resolved only a very small percentage of the national political controversies that excited Jacksonian America.

The remarkably truncated agenda of the late Marshall and Taney Courts is only partly explained by the Jacksonian failure to resolve some political questions into legal or constitutional questions. Henry Clay and other Whigs consistently stated their objections to Jacksonian uses of the veto power in constitutional terms. American System proposals were widely understood as raising fundamental constitutional questions. Whigs claimed that the Constitution empowered the national government to incorporate a national bank, fund internal improvements, impose protective tariffs, and distribute surplus revenue to the states. Jacksonian Democrats insisted that such measures were unconstitutional. Nevertheless, majorities on the Taney Court refrained from ruling on the constitutionality of any major American System proposal. During the three decades before the Civil War, the official position of the Supreme Court on the veto power, on the national bank, and on the vast majority of political questions not directly concerned with slavery was, "No comment."

This article explores the relationships between national political questions and national judicial questions during the second party system and, to a lesser extent, the present. Part I elaborates the meaning of Tocqueville's thesis. Both Tocqueville and those who have quoted him believed that throughout American history, whether from 1787 to 1835 or from 1787 to 2004, most national political questions have been resolved into judicial questions adjudicated by the Supreme Court of the United States. Part II details appropriate tests for Tocqueville's thesis. The main measure compares the issues discussed in national party platforms before the Civil War and the issues adjudicated by the Supreme Court during that period. Part III performs that test, finding Tocqueville's thesis wanting. Most national political questions that excited Jacksonians were not resolved into national judicial questions. Part IV explains why most political and constitutional questions in Jacksonian America were not resolved into judicial questions. That section then details both continuities and discontinuities with present judicial practice. Most political questions that have arisen at the turn of the twenty-first century are still not resolved into judicial questions because they are not first resolved into constitutional questions. Changes in legislative activity, support services for litigation, and legislative support for constitutional litigation, however, explain why constitutional questions that arise at the turn of the twenty-first century are far more likely than constitutional questions that arose in Tocqueville's time to be resolved into judicial questions.

Unthinking citation of Tocqueville has distorted constitutional scholarship in law, history and political science. Seduced in part by Democracy in America and in part by the rhetoric of judicial supremacy, constitutional history in the United States has largely been the history of Supreme Court. This history ignores the constitutional debates over the American system, over national expansion, and over the veto power that sharply divided Americans during the decades before the Civil War. The Supreme Court Reporter does not even provide a complete guide to the constitutional debates over slavery. The Tocquevillean paradigm also presents the transformation of political questions into judicial questions as a fairly automatic process. The actual processes are more complicated and not automatic. Most political questions in Jacksonian America were not resolved into constitutional questions. Most constitutional questions were not resolved into judicial questions. Only by discarding Tocqueville's thesis will scholars be able to explore what must happen for a political question to become a constitutional question and a constitutional question to become a judicial question.

The constant citation of Tocqueville's thesis fares only slightly better as a description of national constitutional politics at the dawn of the twenty-first century than as a description of national constitutional politics in the middle of the nineteenth century. The Supreme Court of the United States currently resolves more national political questions than did the Marshall or Taney Courts. Still, examination of the Democratic and Republican Party Platforms for the 2000 national elections reveals numerous political questions that have not been resolved into constitutional questions. Several important contemporary constitutional questions have not been resolved into judicial questions. These matters include whether President Bush could order an invasion of Iraq in the absence of a declaration of war (6) and whether President Clinton committed an impeachable offense when he lied under oath about his sexual activity. (7) Unless scholars abandon Tocqueville's thesis, future generations may look at Supreme Court opinions and conclude that federalism limitations on the commerce power (8) raised the most important constitutional questions Americans debated at the turn of the twenty-first century.


    Tocqueville's thesis is constantly cited and rarely analyzed. His "famous observation" that "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question," commentators note, "has been repeated so often that is has become part of our national lore." (9) These ritual incantations are rarely accompanied by close textual analysis of Democracy in America exploring what Tocqueville meant when he claimed that little difference existed in the United States between political and judicial agendas. The absence of serious exegesis raises the possibility that what Tocqueville meant in 1835 is not what contemporaries mean when they quote him in 2004. If Tocqueville's thesis plainly misdescribes the Jacksonian political universe, the fault may lie in how that thesis has been interpreted, not in Tocqueville.

    More thorough examination of Democracy in America and Tocqueville's sources alleviates concerns that misinterpretation or misappropriation has taken place. While marginal differences no doubt exist, Tocqueville and the commentators who quote him agree on two fundamental points. First, the tendency for political questions to become judicial questions is a permanent feature of American politics, an accurate description of constitutional politics throughout American history. Second, national politics is particularly subject to the tendency for political questions to be resolved into judicial questions. The Supreme Court of the United States, Tocqueville and contemporary Tocquevilleans agree, has always resolved the vast majority of national political questions that excite American political actors.

    Democracy in America maintains that the tendency for political questions to become judicial questions is an enduring feature of the American regime. "Armed with the power of determining the laws to be unconstitutional," Tocqueville wrote, "the American magistrate perpetually interferes in political affairs." (10) He insisted that...

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