In 1831, two young Frenchmen visited America, charged by their government with investigating the American prison system. They finished in nine months. They also spent those months months investigating “all the mechanisms of this vast American society,” as the leader of the pair, Alexis de Tocqueville, put it (Tocqueville vi). The result is Democracy in America, a book that implicitly critiques the French government and society of Tocqueville’s time through its largely favorable review of American government and society.
One American institution that struck the twenty-five-year-old de Tocqueville as quite different from anything in Europe was the United States Supreme Court. He was amazed: the Supreme Court can tell the rest of the American government what to do. By contrast, all European governments, no matter their form, show “the greatest repugnance to allow the cases to which it was itself a party to be decided by the ordinary course of justice” (123). He pointed out that, unlike European tribunals, when the Supreme Court hears cases between, say, New York and Ohio, it “summons sovereign powers to its bar.” And although Tocqueville didn’t mention it, he might have added that the 1803 case of Marbury v. Madison settled early on that the Supreme Court has the authority to declare acts of Congress invalid if it finds that they are without Constitutional basis. In Tocqueville’s time, this kind of authority in the hands of an independent judiciary was unknown in other modern societies.
Tocqueville was so taken with the Supreme Court’s role that he felt that its reputation and preservation were more important than that of the other two federal branches of government, the presidency and Congress. Yet, more than the other two branches, the court was also more subject to injury from popular disdain. The justices are the “all-powerful guardians of a people which respects law; but they would be impotent against popular neglect or popular contempt,” he claimed, pointing out that the Supreme Court must act consistently with the nation’s understanding of the rule of law (124). We, on the other hand, often see our Supreme Court as the least important of the three branches and, because of the justices’ lifetime appointments, the least subject to adverse popular opinion.
We have some good authority to support our view. Tocqueville’s equally famous countryman, the political philosopher Montesquieu who lived a century before Tocqueville, thought courts were inherently powerless. Montesquieu influenced the framers of the American Constitution by updating the Roman notion of separation of powers, giving us the executive, judicial, and bicameral legislative branches we recognize today. In so doing, however, Montesquieu claimed that the the judicial branch is “in some measure next to nothing” (Huntington 392). After all, nobody (we would say today) comes to a game to see the umps.
Which Frenchman is right? Is the United States Supreme Court the most or least important branch of American government?
In exploring this question, it may be helpful to make two distinctions. The first is between power and function, and the second is between power and authority. Clarifying those three terms may suggest how the framers understood sovereignty and the rule of law as well as the Supreme Court’s role in maintaining this understanding.
We generally think of the Constitution as balancing three primary governmental functions. The Constitution separates functions, however, only to the extent that such a balance of functions achieves the document’s greater goal — a separation and balance of powers. The Constitution is designed to keep sovereignty away from any single part of government, whether it be a branch of the federal government or whether it be the states vis-a-vis the federal government. For instance, as American political scientist Samuel P. Huntington pointed out, “the judicial power to declare what law is became the mixed judicial-legislative power to tell the legislature what the law cannot be” (393 – 394). The Supreme Court also has a quasi-executive role since it can pass on the constitutionality of many executive decisions, such as the suspension of habeas corpus or the issuance of executive orders. The Constitution gives the court more than a judicial function in order to balance some of the powers the Constitution acknowledges.
This sharing of functions to create a true balance of power isn’t a modern invention. In fact, Huntington argued that the American government’s separation of powers is a holdover from the late medieval period before the rule of law began to be replaced by the rule of men. Beginning in the seventeenth century, the nations of continental Europe placed their sovereignty in kings while the English Civil Wars and Glorious Revolution eventually caused sovereignty to be placed in Parliament. The American colonists, however, kept to Tudor-era notions of the supremacy of common and natural law. As British historian Albert Pollard pointed out, “Americans instinctively revolted against the doctrine of the sovereignty of the State” (Huntington 388). At the time of the American Revolution, Americans were still resisting the modern “tendencies toward the substitution of sovereignty for law,” as Huntington put it (386). Americans kept Elizabethan notions of law, just as the the residents of the Chesapeake Bay’s Tangier Island retain certain Elizabethan speech patterns.
It would be helpful to define both sovereignty and the rule of law. Sovereignty, the jurist Jean Bodin says, is the notion that there is “a supreme power over citizens and subjects, unrestrained by law” (Huntington 384). Sovereignty, then, is the assertion of power over others, a concept that political theorist Hannah Arendt said hinders freedom: “If men wish to be free, it is precisely sovereignty they must renounce” (Arendt, Between, 163). The rule of law, however, is the opposite of sovereignty. The rule of law is not to be confused with “law and order”; indeed, the significance of rule of law is in its scope and not its force or strength. Political Theorist Francis Fukuyama defines the rule of law as “rules that are binding even on the most politically powerful actors in a given society” (11). In other words, the scope of law must bind even kings and Parliaments. The American founders held to notions of natural law — law that is discovered by man but not generated by him — precisely to counter modern notions of sovereignty.
This idea of rule of law as exercising something like sovereignty points to the distinction alluded to earlier between power and authority. Power includes coercion, but Arendt said that authority cannot be equated with or rely on coercion — or, for that matter, even persuasion. In fact, she said that “practically as well as theoretically, we are no longer in a position to know what authority really is” (Arendt, Between, 92 – 93). She described where the political idea of authority came from — the founding of Rome — and she described also how the Roman Senate, even when it had no power, was consulted by Rome’s powerful rulers for its blessing on legislative or executive measures. The Roman Senate was the guardian of Rome’s founding, and its task was to measure every governmental action against that founding (120 – 122). That gives us some notion of what authority is even if the West no longer generally experiences it, as Arendt suggested.
Where, then, did authority in the West go when Rome fell? The Catholic Church took on the Roman Senate’s role; Arendt was fond of quoting a pope writing to an emperor at the end of the fifth century: “Two are the things by which this world is chiefly ruled: the sacred authority of the Popes and the royal power” (126). This pope-king tandem lasted in the West for over a thousand years, Arendt asserted, but it collapsed during the Reformation and the Scientific Revolution. One can infer this collapse in the preoccupation with governmental legitimacy in the writings of the period’s political thinkers. Political theorist Alexander S. Rosenthal pointed out that Richard Hooker’s question “‘what conditions make the power to rule legitimate?’ became particularly important in the sixteenth and seventeenth centuries” (107). Arendt believed that governments since then have frequently resorted to force — to power — as a tragic means of compensating for their lack of authority.
One modern institution attracted Arendt’s attention because of its authority, however — the American Supreme Court. Its lack of power and its lifetime appointments make it “the true seat of authority in the American Republic” (Arendt, Revolution, 192). She compared the Supreme Court directly with the Roman Senate, pointing out this small distinction: instead of giving political advice, the Supreme Court gives legal interpretations (193). She approved of Woodrow Wilson’s characterization of the court as “‘a kind of Constitutional Assembly in continuous session’” (192). The Supreme Court, then, gives the government and statutes the authority generated by the Declaration of Independence’s signers and the Constitution’s framers at our nation’s founding.
The Supreme Court’s powerlessness and its authority mean, of course, that both Montesquieu and Tocqueville are right. To maintain its authority — and thereby to maintain the entire government’s authority — the Supreme Court must not make mistakes regarding fundamental law that would undermine its standing with the American people. As Tocqueville warned, “If the supreme court is ever composed of imprudent men or bad citizens, the Union may be plunged into anarchy or civil war” (124). He was right: within twenty years of Democracy in America’s publication, the Supreme Court’s infamous Dred Scott decision helped to bring about the American Civil War.
When the Supreme Court adjudicates, it must consider its function as the source of our federal government’s authority. If it fails to rule in accordance with the Constitution and natural law — i.e., in accordance with the rule of law — it will cause a large segment of the American people to lose their trust not only in the judicial branch but in our entire system of government.
Arendt, Hannah. Between Past and Future: Eight Exercises in Political Thought. Penguins Books, 2006.
Arendt, Hannah. On Revolution. Penguin, 2009.
Fukuyama, Francis. Political Order and Political Decay: from the Industrial Revolution to the Globalization of Democracy. Farrar, Straus and Giroux, 2015.
Huntington, Samuel P. “Political Modernization: America vs. Europe.” World Politics, vol. 18, no. 3, 1966, pp. 378–414. JSTOR, JSTOR, www.jstor.org/stable/2009762.
Rosenthal, Alexander S. Crown Under Law. Lexington, 2008.
Tocqueville, Alexis de. Democracy in America. Edited by Isaac Kramnick, W.W. Norton, 2008.
When Barack Obama last month came out of his brief retirement, he gave a speech expanding on his famous stump maxim, “Don’t boo. Vote.” His new list of don’ts leading up to “vote” includes “Don’t lose yourself in ironic detachment.” Yet such a loss is one way to understand the Christian gospel. Without it, I wouldn’t vote.
Irony is not cynicism, its lazy first cousin. In the public realm, irony is the essence of justice. The Psalms, the prophets, and the Sermon on the Mount all speak of justice in ironic terms. When Samuel is born, the formerly barren Hannah proclaims that “The bow of the mighty is shattered, but those-who-stumble are girded with strength” (1 Sam. 2:4 Fox). Jesus’ birth leads to similar strains in Mary’s song: “He has deposed the mighty from their thrones and raised the lowly to high places” (Luke 1:52 NAB). Isaac, which means “laughter,” is named when his old, barren mother laughs at the suggestion that she would conceive him. And God himself laughs: “He who is throned in heaven laughs,” we are told, at princes who conspire against him (Psalms 2:1-4 NAB). Reinholt Niebuhr, quoting this verse in The Irony of American History, hears in God’s ironic laughter the possibility of earthly justice.
All of these birth stories – those of Isaac, Moses, Samuel, Jesus, and others – involve ironic justice precisely because every man and woman is a living irony, or as Hannah Arendt puts it, “man is a beginning and a beginner.” The miracle of each person’s birth, Arendt says, challenges the “automatic processes [that] can only spell ruin to human life.”1 Pharaoh, Eli’s sons, and Herod all seek to swallow the future into the present by monopolizing the public world – as it were, by supressing the vote.
Private man wishes only that a state apparatus not impede the private sector, and he asks the state to impartially adjudicate among private concerns like his own. But this utilitarian understanding of justice could – and did – operate in such realms as the Third Reich, which eliminate the public.
Irony is the first step back to a true public square. Its justice doesn’t merely decide between private, atomized disputants. Instead, it recognizes the claims of entire communities (Rowan Williams’s “trade unions, ethnic and cultural groups, co-operative societies, professional guilds . . . and, of course, churches and faith groups”2; Tocqueville’s “political associations”3) to a public life. A state apparatus alive to irony becomes, in Williams’s words, “a reliable and creative ‘broker’ of the concerns of the communities that make it up.”4 This “ironic detachment” leads me to members of groups I don’t belong to that are neglected or misused by cruel and automatic processes.
Irony is the midwife of the gospel’s second birth. I am David, whose righteous indignation against a rich thief leads the prophet Nathan to charge, “You are that man.” I am the Roman Christian warned by Paul: “You that judge do the same thing.” The second birth discovers my sense of justice contorted and privatized. Christ’s invitation echoes the psalmist’s and Hannah’s ironic justice: “He who seeks only himself brings himself to ruin, whereas he who brings himself to nought for me discovers who he is” (Matthew 10:39 NAB). My discovery of myself is only possible by living for another – for Christ both in God and in others. Biblical conversion, therefore, insists on a public world. Or as Walter Brueggemann puts it, “our discernment of God is at the breaking points in human community.”5
The irony is, had I not left home, the Democrats would control Virginia’s lower legislative chamber today. My parents’ district last year was decided by a coin toss following a tie vote, and the toss gave the Republicans their one-seat majority. To round out my claim to abdicated power: I keep up with my home town’s politics, I always vote, and I was inclined to support the Democrat.
Yet the prevalence of such anecdotes does nothing to increase voter participation. Why? People stay home on election day not because their vote won’t decide an election. They stay home because of “automatic processes.” They stay home because their home is their only world.
Looking out my window, I see a temporary sign face down on the traffic island between the east- and westbound traffic. In our suburban town, these islands themselves are signs. If a school bus stops in the opposite direction on a divided street (that is, a street with an island) to pick up children, you don’t stop. If the street isn’t divided, though, you must stop. The island creates a legal fiction: you don’t see the bus’s outstretched stop sign because of the island. The island, I suppose, suggests something about whether drivers along the road are expected to anticipate pedestrians.
There are islands like traffic islands along the Potomac where we live, above the falls. (South of the Potomac, but above the falls.) You’d paddle or sail across the river, portage your boat across the narrow island, and paddle or sail again. And you’d be in Maryland. (“Mainland” Maryland, I suppose, since the the islands themselves, like the river, are in Maryland. Borders are fictions, too, and sometimes they are also invisible.)
Alexis de Tocqueville, my latest live-in author, never associates civilization with civility. Here’s an example of how he uses “civilization” from Democracy in America:
The celebrated communities of antiquity were all founded in the midst of hostile nations, which they were obliged to subjugate before they could flourish in their place. Even the moderns have found, in some parts of South America, vast regions inhabited by a people of inferior civilization, but which occupied and cultivated the soil. To found their new states it was necessary to extirpate or to subdue a numerous population, until civilization has been made to blush for their success.1
I ask for greater civic life, but I’m not asking for greater civilization or even greater civility. I ask that we act, and in acting we challenge our assumptions about public life and our own being. We act, and we discover new thoughts and words commensurate with the act. Our hands and our feet teach us, much as they did when we were young.
Philip Kenicott has a nice piece in today’s Post on the Glenstone Museum’s new facility in Potomac. The Glenstone hopes to make interacting with art more contemplative. In the process of describing how it navigates the museum-as-temple and the museum-as-civic-center tension, Kenicott discusses the slow art movement. The movement considers not only the sign (the art) and the signified (the eternal, the meaning, the feeling, the transcendent, what have you) but also the soul.
Our signs — our means of policing ourselves in our positivistic, malum prohibitum society — rarely involve an interpretant. They don’t rise to the level of malum in se, which would require conscience and a notion of right and wrong that transcends law and even society. Cars move too fast for the moral judgment democracy craves.
- de Tocqueville, Alexis. Democracy in America (Kindle Locations 4641-4645). Packard Technologies. Kindle Edition. ↩
Humans associate; it’s part of what makes us human. If we don’t, we’ll begin to see conspiracies, suggests Alexis de Tocqueville, a shrewd observer of not only American democracy but also of humanity:
In countries where associations are free, secret societies are unknown. In America there are numerous factions, but no conspiracies.1
In our atomized society, the television, the Internet, and social media — screens — replace faces. Few of us exercise our right to associate for political and societal ends the way Tocqueville discovered us doing in the early nineteenth century, so we live with conspiracies and rumors of conspiracies. No longer practiced in associational life outside of religion (if that), we assume that when two or more are gathered together, either Jesus or Satan is in the midst.
- de Tocqueville, Alexis. Democracy in America (Kindle Location 3116 – 17). Packard Technologies. Kindle Edition. ↩
Washing dishes this morning while listening to the HomePod play the New World Symphony. Hannah Arendt isn’t the only one who writes about the new world’s work on the old one’s mind. Reading between Tocqueville’s lines, of course, one learns more about the old world than the new. Democracy in America is about the beholder.
Dana Villa, writing in 2005, resolves his chapter on Tocqueville’s conception of a public sphere akin to “Montesquieu’s pouvoirs intermédiares” with this reversal of fortune:
It is an irony of history that the political conception of civil society Tocqueville introduced to Europe must now be reintroduced to America — from, of all places, a democratic and secular Europe.1
Researching the HomePod, I was sickened by this Apple ad. Our protagonist leaves a cramped public space — she apologizes her way out of an elevator car packed with impersonal shoulder blades — for her small apartment, which she widens with waves of her hand as the HomePod plays a favorite. If our new worlds are private ones, Tocqueville warns, the old world will hunt us down.
Title page of the autograph score of Dvorák’s ninth symphony
- Villa, Dana. Public Freedom (2008) at 45, 48. ↩