Reviving Tocqueville's America: The Supreme Court's New Jurisprudence of Social Discovery

Abstract

This article offers a retrospective on the Rehnquist Court. It argues that the Rehnquist Court has been pursuing a coherent jurisprudence that invigorates decentralization and private ordering of the kind Alexis De Tocqueville celebrated in Democracy in America as being the essence of the social order generated by our original Constitution. In four disparate areas - federalism, freedom of association, the religion clauses, and the balance of power between juries and judges - the Court is helping sustain a civil order that bubbles up from below - from localities or from citizens voluntarily gathered together or randomly selected. While I draw on the Court's entire jurisprudence to make these points, I single out seven cases from last term as illustrative.

This article is the first to seek to do for the Rehnquist Court what John Hart Ely did for the Warren Court in Democracy and Distrust - ground the full range of its jurisprudence in a coherent theory of governance. Political theories, such as public choice, have shown that the disproportionate influence of special interest groups and the inattention of the general citizenry can prevent centralized democracy from measuring majority will and producing good social norms. In contrast, civil society engages the citizen and restrains special interests through competition, whether the competition is among different states or among different associations. The Court's new jurisprudence, therefore, is designed to protect the autonomy of decentralized "discovery machines" for social norms, like mediating institutions and local government, in order to supplement the norms generated by national democracy.