Count Alexis de Tocqueville's Democracy in America has been said to be "at once the best book ever written on democracy and the best book ever written on America. " This praise should perhaps be tempered by consideration of Tocqueville' s purposes and the historical circumstances within which he worked and understood both democracy and America. Yet Tocqueville's insights into American democracy as of the 1830s undoubtedly constitute a rich source of constitutional thought-either as support for particular constitutional principles or as constitutional ideas that should be contested. In a recent notable instance, John McGinnis has argued that Tocqueville's ideas about democracy, especially his views that decentralization and diffuse government and civic or voluntary associations can create valuable social norms, provide a persuasive and coherent justification for the conservative jurisprudence of the Rehnquist Court. McGinnis argues that the Rehnquist Court's "revival of federalism, " its expansion of freedom of expression rights for organizations like the Boy Scouts, and its expanded protection for religious expression in the public sphere follow Tocqueville's prescriptions for democracy and have enhanced the spontaneous ordering of society through the promotion of diffuse, localized social norms. McGinnis also argues that the "fundamental rights" jurisprudence of the modem Supreme Court, particularly the privacy rights doctrine, constitutes the judicial declaration of national norms that are antithetical to Tocquevillian democracy. The purpose of this essay is to explore the relevance of Tocqueville's theory of democracy to contemporary constitutional law. The brilliance of Tocqueville's insights and his position as a detached observer, as a matter of nationality, geography, and time, suggest that Tocqueville's viewpoint on American democracy should constitute a good basis from which to raise theoretical questions and arguments about American constitutional law, as it is and as it should be. Unlike most writing on Tocqueville and the law, this essay emphasizes not only Tocqueville's celebration of American democracy as of the I 830s but also his motives for writing, the contradictions within his work and between his analysis and historical circumstances, and the darker sides of his thought about democratic tendencies. This essay thus contests the recent writing on Tocqueville and constitutional law that lifts his optimistic ideas and concepts about American democracy out of context in order to support a conservative jurisprudence of the kind favored by the Rehnquist Court. This essay in contrast reveals good reasons for questioning, qualifying, and reconstructing Tocquevillian concepts of democratic government if these concepts are to help us develop a useful and attractive constitutional law for the twenty-first century. When viewed in the context of the full text of Democracy in America, the historical circumstances within which Tocqueville worked, and the subsequent changing circumstances in American history, Tocqueville's views on democracy tend to support the basic principles of modem constitutional law and the interpretive methodology that supports them much more than they support the originalist or revisionist versions of constitutional law that are being advanced by members of the Rehnquist Court and scholars like John McGinnis. Upon a full contextual examination, Tocqueville's ideas justify a constitutional law that aims to promote an "equality of conditions" in American democracy. His ideas justify a robust protection of individual rights against the majority will when legislative majorities act on the basis of mere passion and majority opinion to coerce conformity and to disadvantage persons of difference. His ideas also justify judicial recognition of strong national government powers when national actions, by the legislature, executive, or judiciary, are appropriate to address economic and social problems because Tocqueville's view of the advantages of federalism and decentralization are grounded in the subsidiarity principle-that government should be decentralized to its most effective level-rather than in some notion of fixed constitutional thought that stems from the eighteenth century. Tocqueville also recommended the use of interpretive methods in constitutional law that take account of historical contingencies and changing circumstances-unlike originalist constitutional theory and its purportedly more rigid interpretive method.
Philip C. Kissam,
Alexis de Tocqueville and American Constitutional Law: On Democracy, the Majority Will, Individual Rights, Federalism, Religion, Civic Associations and Originalist Constitutional Theory,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol59/iss1/3