The French magistrate and political theorist Alexis Clerel de Tocqueville spent nine months of 1831 and 1832 in the United States. He believed that democracy was the inescapable destiny of all nations and that America, as the first avowedly democratic nation in the modern world, offered an opportunity for the student of politics to observe democracy in action. One product of Tocqueville's sojourn on our shores was Democracy in America.
Tocqueville thought that the main problem of democracy was a tendency toward radical equality of condition which was destructive of the liberty necessary for excellence in human endeavors. He perceived in America two undesirable developments: a pervasive tyranny of the majority and a centrifugal individualism. He proposed, as a solution to democracy's problems, a "new science of politics" based on enlightened self-interest. He emphasized the utility, rather than the beauty or nobility, of virtue and public-spiritedness.
A shrewd observer of political affairs, Tocqueville was one of the first to discern the American tendency toward JUDICIAL SUPREMACY. American judges, he noted, although confined to deciding particular cases, and only those presenting justiciable controversies, possess immense political power. This is possible because "scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question," and because of the simple fact that the Americans have acknowledged the right of judges to found their decisions on the Constitution
rather than on the laws, or, in other words, they have permitted them not to apply such laws as may appear to them to be unconstitutional. The political power of the judges, arising out of the exercise of JUDICIAL REVIEW, appeared to Tocqueville a salutary check on potential legislative excess. Tocqueville's observation, made when the Supreme Court had voided only a single federal law as unconstitutional, seems all the more perceptive today.
Tocqueville also recognized the unique status of the Constitution in American political life. The English constitution was alterable by ordinary legislation and the constitutions of continental monarchies were immutable save by violent revolution; only in America was the Constitution regarded as an...