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Judicial Statesmanship, the Jurisprudence of Individualism, and Tocqueville's Common Law Spirit

Published online by Cambridge University Press:  05 August 2009

Paul O. Carrese
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Extract

Tocqueville's account of judging unites two concerns separated in recent debates over constitutional interpretation, use of discretion to serve the rule of law and respect for tradition. In Planned Parenthood v. Casey the majority upholding Roe is properly concerned with rule of law, while Justice Scalia properly criticizes departures from text and tradition. However, both evince a skepticism which undermines these concerns. This raises differences between American constitutionalism prior to Holmes and the rival strains of legal realism now dominant. Tocqueville's judicial statesmanship would perpetuate the Constitution by preserving the principles of its letter and spirit. Holmesean judges lack the classic common law basis of this jurisprudence and should not exercise discretion unguided by our founding principles. The jurisprudence of individualism yielded by activist Holmesean skepticism is inadequately opposed by Holmesean skeptical restraint and better addressed by a common law constitutionalism.

Type
Research Article
Information
The Review of Politics , Volume 60 , Issue 3 , Summer 1998 , pp. 465 - 495
Copyright
Copyright © University of Notre Dame 1998

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References

1 de Tocqueville, Alexis, Democracy in America, ed. Mayer, J. P. and trans. Lawrence, George (Garden City, NY: Doubleday, Anchor Books, 1969), vol. I, part 2, chapter 8, p. 270; I. 1. 8, p. 150Google Scholar. I have revised Lawrence's translation as needed, based upon vol. 1 of the Œuvres Complètes, ed. Mayer, J. P. (Paris: Gallimard, 1961).Google Scholar

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6 Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791 (1992).

7 This argument builds upon Stoner, James R. Jr., “Common Law and Constitutionalism in the Abortion Case,” Review of Politics 55 (1993): 421–41CrossRefGoogle Scholar. It should be noted that not all “original intent” arguments subscribe to legal skepticism or positivism; see Wolfe, Christopher, How to Read The Constitution: Originalism, Constitutional Interpretation, and Judicial Power (Lanham, MD: Rowman and Littlefield, 1996).Google Scholar

8 See 112 S. Ct. 2791 at 2858 (Chief Justice Rehnquist, concurring in the judgment in part and dissenting in part).

9 ibid., at 2804 (joint opinion of Justices O'Connor, Kennedy, Souter).

10 .112 S. Ct. 2791 at 2814 (part III-C of the joint opinion, joined by Justices Blackmun and Stevens).

11 ibid., pp. 2815, 2816.

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14 ibid., p. 2816.

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20 112 S. Ct. 2791, at 2804–2808 (part II). Amendment V and Amendment XIV, sec. 1 of the Constitution provide that no person shall be deprived of “life, liberty, or property, without due process of law.”

21 ibid, at 2882, citing joint opinion at 2815–16.

22 ibid, at 2882–83; see Hamilton, , Madison, , Jay, , The Federalist (New York: Modern Library, n.d.), 504Google Scholar, and Lincoln, , “First Inaugural Address,” in The Collected Works of Abraham Lincoln, ed. Basler, R. (New Brunswick, NJ: Rutgers University Press, 1953–56), IV: 268.Google Scholar

23 112 S. Ct. 2791 at 2878, 2884.

24 ibid., p. 2885, quoting from joint opinion at 2815.25.

25 Jefferson argued that laws must be open to revision in each generation since “the earth belongs to the living, and not to the dead.” Letter to Madison, September 6, 1789, in The Portable Thomas Jefferson, ed. Peterson, M. (New York: Viking, 1975), 450Google Scholar. Still he steadfastly supported both the traditional common law and popular consent; see Stoner, James, “Sound Whigs or Honeyed Tories? Jefferson and the Common Law Tradition,” in Reason and Republicanism: Thomas Jefferson's Legacy of Liberty, ed. McDowell, Gary (Lanham, MD: Rowman and Littlefield, 1997).Google Scholar

26 112 S. Ct. 2791 at 2884–85.

27 Holmes, Oliver Wendell Jr., The Common Law (Boston: Little, Brown and Company, 1881), pp. 1–2.Google Scholar

28 Stoner, Common Law and Liberal Theory. Cf. the Holmesean conception in Strauss, David, “Common Law Constitutional Interpretation,” University of Chicago Law Review 63 (1996): 877–935.CrossRefGoogle Scholar

29 “The Path of the Law” (1897) in The Mind and Faith of Justice Holmes, ed. Lemer, M. (Boston: Little, Brown and Company, 1943), p. 75Google Scholar (emphasis added).

30 See, for example, Brauneis, Robert, “‘The Foundation of Our “Regulatory Takings ” Jurrisprudence’: The Myth and Meaning of Justice Holmes's Opinion in Pennsylvania Coal Co. v. Mahon’, Yale Law Journal 106 (1996): 613–702CrossRefGoogle Scholar at 631–642.

31 SeeHorwitz, Morton, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992)Google Scholar, and Holmes, “John Marshall”, in Mind and Faith, pp. 382–85. For criticism of Holmes see Faulkner, Robert, The Jurisprudence of John Marshall (Princeton: Princeton University Press, 1968)Google Scholar, and Wolfe, Christopher, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge Made Law, Revised Edition (Lanham, MD: Rowman and Littlefield, 1994).Google Scholar

32 Roe v. Wade, 410 U.S. 113 (1973) at 117, 174. I am indebted to Robert Scigliano for understanding Holmes as seminal for each school; see also Jacobsohn, , Pragmatism, 163, and The Supreme CourtGoogle Scholar, Introduction.

33 112 S. Ct. 2791, p. 2807.

34 Justice Stevens (concurring here) cites Ronald Dworkin in his own opinion, ibid, at 2839, n. 2.

35 SeeMill, On Liberty, ed. Spitz, (New York: Norton, 1975 [1859])Google Scholar. Mill wrote warm reviews of Democracy in America, Tocqueville is cited in On Liberty, and they corresponded; but ultimately disagreements outweighed agreeements. I am grateful to Jim Stoner for noting that James's, WilliamPragmatism (New York: Longmans, Green, and Co., 1907)Google Scholar is dedicated to Mill.

36 112 S. Ct. 2791 at 2876 (see 2874). The precedents cited for the joint opinion's reading of liberty all stem from Griswold's right of privacy—precisely the constitutional reasoning at issue in these debates—either literally or by imagitively reinterpreting earlier holdings.

37 SeeFaulkner, Robert, “Difficulties of Equal Dignity: The Court and the Family,” in The Constitution, the Courts, and the Quest for Justice, pp. 93–114Google Scholar, at 103 and 111; and Dolgin, Janet, “The Family in Transition: From Griswold to Eisenstadt and Beyond,” Georgetown Law Journal 82 (1994): 1519–71 at 1564–71.Google Scholar

38 367 U.S. 497, 542 (see 112 S. Ct. 2791, 2806); 545–46. “[S]ociety is not limited in its objects only to the physical well-being of the community, but has traditionally concerned itself with the moral soundness of its people as well.”

39 ibid., 545, 546–47.

40 Quoted by Kass, Leon, “Perfect Babies”, in Toward a More Natural Science: Biology and Human Affairs (New York: The Free Press, 1985), 98Google Scholar (no citation given).

41 405 U.S. 438 at 452, emphasis in original; Eisenstadt is cited in Roe v. Wade, 410 U.S. 113, at 152,156.

42 405 U.S. 438 at 452.

43 Cruzan v. Director, Missouri Dept. of Health, 110 S. Ct. 2841 (1990), J. Scalia concurring, at 2859. See also Scalia, , “The Rule of Law as a Law of Rules,” University of Chicago Law Review 56 (1989): 1175–88CrossRefGoogle Scholar, and A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997).Google Scholar

44 The Federalist, No. 78, p. 507; see Stoner, Common Law and Liberal Theory. The common law reasoning evident throughout Marbury v. Madison is captured in Marshall's closing words: “the particular phraseology of the constitution of the United States confirms and strengthens the principle supposed to be essential to all written constitutions” (1 Cranch 138 at 180, emphasis added).

45 The Federalist, No. 78, p. 510; Democracy in America, vol. I, pt. 1, chap. 8, p. 139.

46 Stoner, “Common Law and Constitutionalism in the Abortion Case,” pp. 422, 439–40.

47 112 S.Ct. 2791 at 2815 (joint opinion).

48 Democracy in America, Introduction to vol. I, pp. 20, 9; Preface to 12th Edition, p. xiv. Subsequent references to the Lawrence translation, which I have revised as needed, are cited parenthetically in the text.

49 Other treatments by Tocqueville of the judicial power include The Old Régime and the French Revolution, trans. Gilbert, (New York: Doubleday, 1955 [1856]), 55, 115–20, 166–69, 283–86Google Scholar, and the 1948 essay on Cherbuliez's study of Switzerland, in Democracy, Appendix II, pp. 739,741–44. See also the fine discussion in Harold Levy, “Lawyers' Spirit and Democratic Liberty: Tocqueville on Lawyers, Jurors, and the Whole People”, in Tocqueville“s Defense of Human Liberty: Current Essays, ed. Lawler, P. A. and Alulis, J. (New York: Garland Publishing, 1993) 243–63Google Scholar. However, Levy underemphasizes the importance of this topic in Democracy and other works, while overplaying Tocqueville's mild criticism of the common law spirit.

50 The Old Régime, pp. 82, 88; see Democracy, 1.1.2, p. 34.

51 Letter to Adams, John, 10, 1813, in Portable Thomas Jefferson, pp. 534–35.Google Scholar

52 See “The Art and Science of Politics,” trans. Mayer, J. P. in Encounter, 36, 1 (1971): 27–35Google Scholar, and Lawler, Peter A., “Introduction,” Tocqueville's Political Science: Classic Essays, ed. Lawler, (New York: Garland Publishing, 1992)Google Scholar, especially discussion of the Aristotelian character of his political science and that its distinctive contribution is “his view of greatness” (p. xi).

53 Aristocracies may yield “inequality and wretchedness,” but “men's souls were not degraded thereby” (p. 14).

54 Pierre Manent argues that “the greatness of Tocqueville was his capacity at one and the same time for promoting the clear hope that democracy entails while deepening a sense for its doleful secret”—that “the question of ends is pushed back” until “the silence becomes deafening”. Tocqueville and the Nature of Democracy, trans. Waggoner, John, foreword by Mansfield, Harvey (Lanham, MD: Rowman and Littlefield, 1996 [1982]), pp. xii, xiv.Google Scholar

55 See ibid., chap. 7, “Democracy and the Nature of Man.” Lawrence omits one of the two uses of “soul” in the Introduction to vol. I, obscuring a crucial passage: “There are still Christians full of zeal among us whose religious soul loves to feed upon the truths of the other life; these no doubt will readily espouse the cause of human liberty, the source of all moral greatness” (Democracy, p. 16).

56 SeeNichols, James H. Jr., “Pragmatism and the U.S. Constitution” in Confronting the Constitution, ed. Bloom, A. (Washington, DC: AEI Press, 1990), pp. 369–70Google Scholar. Matt Franck helpfully suggests that Tocqueville's linking of Luther and modern freedom may owe a debt to an 1834 essay by Heinrich Heine in the Revue de deux mondes, “On the History of Religion and Philosophy in Germany;” see Heine, , Selected Prose, ed. and trans. Robertson, R. (New York: Penguin Classics, 1993), 227Google Scholar. See also Hegel's, Preface to his Philosophy of Right, ed. Wood, , trans. Nisbet, (Cambridge: Cambridge University Press, 1991 [1821])Google Scholar, on what “Luther inaugurated” (p. 22).

57 Note also his successive treatment, in the work's closing pages, of the importance of courts and of form and formalities (II.4.7, pp. 698–99)—urging that our appreciation of forms be “enlightened and well considered”.

58 See Ceaser, , “Tocqueville” revised as “Political Science, Political Culture, and the Role of the Intellectual” in Interpreting Tocqueville's Democracy in America, ed. Masugi, K. (Savage, MD: Rowman and Littlefield, 1991), pp. 288–91, 297, 306–307, 309–11Google Scholar; and Kraynak, “Constitutionalism,” pp. 1180–81.

59 See Ceaser, “Political Science”, pp. 291–301, 309–11. Ceaser, however, does not consider the American common lawyer spirit to be a “synthesis” which avoids the defects of both traditionalism and rationalism (see pp. 316ff.). Levy, too, is critical of the common law, and overlooks Tocqueville“s preference for it compared to French rationalism; thus he has difficulty fitting together the two parts of 1.2.8, since the later discussion of juries praises the conservative habits and substantive principles imparted by judges (see “Lawyers' Spirit”, pp. 248, 250, 252, and n. 55).

60 I am indebted to David Lowenthal for noticing this omission. For a criticism based upon a reading of Tocqueville as indebted to Rousseau, see West, Thomas, “Misunderstanding the American Founding,” in Interpreting, pp. 155–77Google Scholar. But cf. Kraynak, , “Tocqueville's Constitutionalism,” especially pp. 1175–81.Google Scholar

61 This section, “The Idea of Rights,” and its sequel, “The Respect for Law,” are among the five “Real Advantages Derived By American Society From Democratic Government” (1. 2. 6); both are related to the judicial power. Harvey Mansfield argues that Tocqueville “reproduces in democratic conditions the Aristotelian notion of the independence of judging, according to which it represents a check on human goverment, or a calling to account in the light of an external standard, either law or nature.” (Taming the Prince: The Ambivalence of Modern Executive Power [New York: Free Press, 1989], p. 235)Google Scholar. See Aristotle Politics 1300b.

62 Compare Lincoln, , “The Perpetuation of Our Political Institutions,” Collected Works, I: 108–15Google Scholar; Gettysburg Address, VII: 22–3.

63 Peggy Noonan recently argued that “the children who have grown up in the abortion culture” have been “morally dulled” by a politics and law which teaches that “human life is not special, is not sanctified” but is biological stuff that “makes demands and can be removed.” Noonan, “Abortion's Children,” The New York Times, 22 January 1998, National Edition, p. A 29.

64 Exceptions include Nagel, Robert, Constitutional Cultures: The Mentality and Consequences of Judicial Review (Berkeley: University of Calif omia Press, 1989)Google Scholar; Glendon, A Nation Under Lawyers, and the essays by Faulkner and Dolgin cited in note 37.

65 Mansfield notes Hamilton's “positive” separation of powers in The Federalist, in which “the judiciary passes from one power among three” to “the one above the others, the only one with its eye steadily on the whole, monitor of the separation of powers and guardian of the Constitution”. “Separation of Powers in the American Constitution,” in America's Constitutional Soul (Baltimore: Johns Hopkins University Press, 1991), 125.Google Scholar

66 For the interrelated history of common law and natural law in American constitutional jurisprudence, see Stoner, James Jr., “Common Law and Natural Law,” in Benchmark V (1993): 93–102.Google Scholar

67 The Federalist Papers, No. 78, pp. 470, 471, 465, 471, 470; see text at notes 44–45 above.

68 Sturges v. Crowinshield, 4 Wheaton 122, 202 (1819); see also Fletcher v. Feck (1810), McCulloch v. Maryland (1819), and Marbury (see note 44 above). Tocqueville implicitly critiques a Madisonian conception of the Constitution as solely a structure for competing interests even as he echoes Hamilton's emphasis on the “more permanent branches” and more positive, constructive reading of the separation of powers. See Kraynak, , “Constitutionalism,” pp. 1190, 1192Google Scholar; Mansfield, , “Separation of Powers”. esp. pp. 122–26Google Scholar; and Jacobsohn, “Hamilton, Positivism, and the Constitution”, in Decline.

69 See Scigliano, Robert, “The Two Executives: The President and the Supreme Court,” in The American Experiment: Essays on the Theory and Practice of Liberty, ed. Lawler, Peter and Schaefer, R. (Lanham, MD: Rowman and Littlefield, 1994).Google Scholar

70 Russell Hittinger argues that in Thomistic jurisprudence the task of discerning the natural law in the positive law is primarily legislative, not judicial. “Natural Law in the Positive Laws: A Legislative or Adjudicative Issue?,” Review of Politics 55 (1993): 5–34CrossRefGoogle Scholar. I think Tocqueville and the American Founders would agree. The further question is whether and to what degree a judge can correct, not permanently replace, the legislator by discerning the fundamental principles and requirements of the Constitution.

71 262 U. S. 390 (1923) (emphasis added); see also Pierce v. Society of Sisters, 268 U. S. 510 (1925), and the criterion of “a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U. S. 97 [1934] 105. Both tests contrast with the abstraction of the “rationalizing principle” Justice Cardozo fashioned in Palko v. Connecticut (1937), concerning “the very essence of ordered liberty” and a “fair and enlightened system of justice” (302 U.S. 319, 325).

72 Speech at Springfield, Illinois, 26 June 1857, in Collected Works, II: 401.