Alexis de Tocqueville was a lawyer. Although by all accounts he was not a courtroom star, his brief legal career (he spent 4 years as the equivalent of an assistant public prosecutor) left a strong mark on him. Wherever he travelled, and whatever he wrote, he paid considerable attention to the judicial system. In the American case, Tocqueville studied the text of the Constitution, was a close reader of the Federalist Papers, spoke with Joseph Story and James Kent, perhaps the greatest American jurists of their time, and read their legal and constitutional commentaries. He attended trials and discussed the legal system with many American lawyers. Partly this was a result of his ostensible mission in the United States, to study the American penal system, but mostly it was because of his abiding interest in the law. Tocqueville’s discussion of the American judicial system, and in particular the role played by the constitutional review of legislation, is hardly unknown, but it is rarely a focus of discussion. This is unfortunate because it is insightful and very timely.
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