The Readings for Democracy in America unit
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Unit 9 Readings, The Courts: Our Rule of Law
- IntroductionThe Courts: Our Rule of Law
- Tocqueville, Democracy in America: Judicial Power in the
United States, and Its Influence on Political Society
- Federalist Papers: Federalist No. 78
- Marbury v. Madison
- Cherokee Nation v. Georgia
In what ways, according to Tocqueville, had the Americans
retained the usual characteristics of judicial power and in what
ways had they introduced novel developments?
How does Federalist No. 78 maintain the claim
that the judicial branch is the least dangerous to the political
rights of the Constitution?
Why did the Supreme Court not order the Secretary of State
to issue Marbury his appointment as justice of the peace?
IntroductionThe Courts: Our Rule of Law
In America, wrote Tocqueville, there are no nobles
or literary men, and the people are apt to mistrust the wealthy; lawyers
consequently form the highest political class and the most cultivated
portion of society. Even if it does take a class action suit
by lawyers to change a light bulb, they do receive a great deal of
respect in America; a respect that reveals something of their power.
As social connections have changedpeople live near people they
hardly know, for examplethe role of law in adjudicating social
problems has become even more important. In spite of the jokes, lawyers
retain privileges and prestige because of the important social function
they perform for American society with its high degree of individualism.
The role of courts in American society extends from adjudicating local
disagreements to providing America, through the Supreme Court, with
a politically powerful locus of prestige; so powerful, in fact, that
it has been the catalyst for fundamental social change several times.
The Supreme Courtthe most powerful institution in the least
powerful branchexemplifies the power that law and the courts
are able to garner through respect and persuasion. The Supreme Court,
without even the ability to enforce its decisions, has made itself
an important political actor in many American dramas, including the
drama of Marbury v. Madison whereby it created for itself the power
to review the Constitutional legitimacy of the actions of the legislature.
Armed with the power of declaring the law to be unconstitutional,
the American magistrate perpetually interferes in political affairs.
He cannot, however, explained Tocqueville, force
the people to make laws, but at least he can oblige them not to disobey
their own enactments and not to be inconsistent with themselves.
The power of prestige is the great power of law, the courts, and the
Supreme Court, without this there would be neither Brown v. Board
of Education nor Dred Scot v. Sandford.
This chapter thoroughly examines the account of the power of courts
as explained by the supporters of the Constitution in Federalist Papers
No. 78. Specific examples of the Courts literary power are found
in Marbury v. Madison.