The National and Judicial Character of Tocqueville's Administrative Thought

• In Event: Executive and Administrative Power in American Constitutionalism

Abstract

Alexis de Tocqueville’s analysis of decentralized administration is familiar to all students of Democracy in America. Yet while Tocqueville emphasizes local administration as a crucial part of the American regime, he also acknowledges the role of the federal government, especially the federal judiciary, in promoting a healthy federal balance within American political and administrative life. This paper draws attention to this other side of Tocqueville’s administrative theory and makes two central claims. First, Tocqueville possesses a more robust understanding of national power than he is often given credit for. Though he sees federal authority as “exceptional and circumscribed,” he recognizes its necessity and the inability of local administration to exist without an overarching federal system within which to operate. Second, Tocqueville articulates the crucial role judicial power plays within the American administrative state. Even local administration is heavily judicialized through the work of justices of the peace and the imposition of judicial penalties on wrongdoing administrators. The federal judiciary ensures the correct administration of national law, but also protects individual citizens from administrative abuses by state and local officials. In this way, despite referring to particular cases and justices only tangentially, Tocqueville exhibits a way of understanding judicial power similar to that of Chief Justice John Marshall. Both view the Supreme Court justice as a prudential statesman who helps maintain the balance of state and federal power in political and administrative life. I conclude by suggesting that the contemporary Court has betrayed the vision of Tocqueville and Marshall by shifting from protecting political rights to civil rights. It also increasingly permits Congress to coopt states for purposes of national legislation, enfeebling state administrators by siding with a centralized legislature instead of individual citizens. This undermining of divided sovereignty disrupts the balance between local and federal administration that Tocqueville sees as essential to the health of the American regime.

Author

• Jacob R. Boros, Baylor University