Resolving Political Questions into Judicial Questions: Tocqueville's Thesis Revisited

21 Constitutional commentary 485 (2004).

U of Maryland, Pub Law Research Paper No. 2004-04

63 Pages Posted: 26 Feb 2004 Last revised: 16 Apr 2009

Mark Graber

University of Maryland - Francis King Carey School of Law

Date Written: 2004

Abstract

This paper explores whether national political questions during the second party system were resolved into questions adjudicated by the Supreme Court of the United States. The essay details an appropriate test for Tocqueville's thesis, demonstrates that most national political questions that excited Jacksonians were not resolved into judicial questions, and explains why Tocqueville's thesis does not accurately describe national constitutional politics during the three decades before the Civil War. That most political questions were not resolved into judicial questions during the three decades before the Civil War given common political science claim that "(v)irtually any issue the Court might wish to resolve is offered to it." That Jacksonian political actors did not resolve all political questions into constitutional questions or into constitutional questions adjudicated by the Supreme Court requires major rethinking of the role of law and political choice in structuring the Supreme Court's agenda.

Keywords: Tocqueville, political question

Suggested Citation

Graber, Mark, Resolving Political Questions into Judicial Questions: Tocqueville's Thesis Revisited (2004). 21 Constitutional commentary 485 (2004).; U of Maryland, Pub Law Research Paper No. 2004-04. Available at SSRN: https://ssrn.com/abstract=506842 or http://dx.doi.org/10.2139/ssrn.506842

Mark Graber (Contact Author)

University of Maryland - Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

Paper statistics

Downloads
325
Rank
74,907
Abstract Views
4,650