Tocqueville, a much wiser and more prudent thinker than the Encyclopédistes, knew that such abstract political moralizing could only lead to political terror.
Tocqueville considers the institution of judicial review in light of the mutability of constitutions in France, England, and the United States. He considers matters in the countries as they stood in the 1830s. France and England represent the extremes. On the one hand, the French constitution cannot be changed. It “is, or is supposed to be, immutable. No power can change anything in it; such is the received theory.” Judicial review, specifically, the power of judges to declare laws unconstitutional, does not make sense under the French theory of constitution, according to Tocqueville, because with an unchangeable constitution, judges would be the true rulers of France. Better to deny judges the power of judicial review and have a system of legislative supremacy. At least then, Tocqueville writes, effective power to change the constitution would be in the hand of the people’s representatives rather than in the hands of judges “who represent only themselves.”
England stands at the other extreme of constitutional mutability. Here, too, judicial review makes no sense according to Tocqueville, “since the Parliament, which makes the laws, also makes the constitution.” Because Parliament makes both ordinary law and constitutional law, there is no effective constitutional basis for judges to draw on to declare ordinary parliamentary enactments unconstitutional.
In the United States, however, while the Constitution stands over the legislature, and therefore judges apply a higher law than ordinary legislation when reviewing legislation, the Constitution is also mutable. This is critical for Tocqueville. If Americans do not like the way judges interpret the Constitution, they can always “reduce the judges to obedience” by changing the Constitution. This possibility prevents judges from being the equivalent of rulers.
For Tocqueville, as for the Constitution’s framers, constitutions need to sit somewhere between being completely immutable and entirely mutable. Without pinpointing the American case as a precisely optimal balance between the two extremes, Tocqueville nonetheless identifies the American mix of judicial review and constitutionalism, to echo the fairy tale, as being just right.
But Tocqueville visited the U.S. in 1831, and first published Democracy in America in 1835. If given a longer time horizon, would he still suggest that Americans hold the power to “reduce judges to obedience” because the people have the power to amend the Constitution?
With a nod to the exceptionalism of the period that generated the Bill of Rights, it is nonetheless true that when Tocqueville visited the U.S., the national constitution had already been amended twelve times. That is twelve times within 30 years. If the Constitution continued to be amended at the rate, today it would have over 90 amendments to it rather than 27. Even if we cut this rate of constitutional amendment in half, the U.S. Constitution would still have been amended in the neighborhood of 45 times by today.
Stepping around the question of what the content of those additional amendments might be, the issue is one of balancing stability with mutability — that is, balancing constitutional viscosity with constitutional fluidity.
Achieving the right mix, however, does not merely reflect an aesthetic of balance just right. Bigger issues hang on whether the current Constitution is too hard to amend to continue to meet Tocqueville’s celebration of the American balance of constitutional viscosity with its fluidity.
First is the issue of republicanism itself. When the people themselves ratify a constitution, the constitution necessarily controls the people’s delegates in the legislature, executive, and even in the judiciary. To create the possibility that constitutional amendments might discipline the judiciary, there needs to be a credible threat of adopting them in reaction to judicial decisions. The two times The Federalist cites the Declaration of Independence, both respond to arguments that would make the possibility of altering government too difficult. While the threshold needed to amend the current Constitution is lower than it was to amend the Articles of Confederation, it’s a fair question whether, after over two centuries of experience, the evidence suggests the threshold remains so high as effectively to prevent realization of the “consent of the governed.” Needless to say, the disciplinary threat of constitutional amendment does not affect judicial behavior today at the national level.
Secondly, however, there is the question of whether the difficulty of the amendment process has corrupted constitutional processes more generally. There is, first, the effective absence of the deterrent value of constitutional amendments as a means to “reduce judges to obedience.”
Relatedly, however, is the effect on judicial discourse itself, and on discourse about the judiciary. As I’ve argued in earlier posts, honest reading is one of the most important merits of textualism. If a constitution is too difficult to amend, even in the face of persistent, significant majority sentiment, citizens and policymakers will cast about for alternative mechanisms of constitutional change. Creative constitutional construction — I won’t dignify the phenomenon by calling it constitutional interpretation — results in part from enormous political pressure seeking constitutional change that cannot be realized through the amendment process. So, too, the politicization of the appointment process for judges.
If, as Tocqueville would have it, judges are a country’s rulers, as they would be in his analysis if a constitution makes constitutional change by the people too difficult, then the appointment of judges become, in effect, the appointment of our rulers. To the extent this is the case, then the process should be fully political and fully politicized. Indeed, republicanism requires it.
To be sure, I’d anticipate the country would adopt some amendments that I would oppose. And I would support some amendments that many others would oppose. But republican processes do not require unanimity. While constitutional change should be more viscous than the process of ordinary policy change, I think it an open question whether, with over two centuries of experience behind us, the evidence indicates that while improving on the process relative to the Articles of Confederation, the current Constitution continued to err too much on the side of making constitutional change too difficult. And some of our most telling constitutional vices derive from that problem.