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9. The Courts: Our Rule of Law, Readings
Topic Overview Using the Video Readings Critical Thinking Activity Web-Based Resources






Readings Unit 9

The Readings for Democracy in America unit 9 are available here for download as a PDF file. You'll need a copy of Adobe Acrobat Reader to read the files. Acrobat Reader is available free for download from adobe.com.

Download Unit 9 Readings, The Courts: Our Rule of Law

  • Introduction—The Courts: Our Rule of Law

  • Tocqueville, Democracy in America: “Judicial Power in the United States, and Its Influence on Political Society”

  • Federalist Papers: “Federalist No. 78”

  • Marbury v. Madison

  • Cherokee Nation v. Georgia


  1. In what ways, according to Tocqueville, had the Americans retained the usual characteristics of judicial power and in what ways had they introduced novel developments?

  2. How does “Federalist No. 78” maintain the claim that the judicial branch is the least dangerous to the political rights of the Constitution?

  3. Why did the Supreme Court not order the Secretary of State to issue Marbury his appointment as justice of the peace?

Introduction—The Courts: Our Rule of Law

“In America,” wrote Tocqueville, “there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society.” Even if it does take a class action suit by lawyers to change a light bulb, they do receive a great deal of respect in America; a respect that reveals something of their power. As social connections have changed—people live near people they hardly know, for example—the role of law in adjudicating social problems has become even more important. In spite of the jokes, lawyers retain privileges and prestige because of the important social function they perform for American society with its high degree of individualism. The role of courts in American society extends from adjudicating local disagreements to providing America, through the Supreme Court, with a politically powerful locus of prestige; so powerful, in fact, that it has been the catalyst for fundamental social change several times.

The Supreme Court—the most powerful institution in the least powerful branch—exemplifies the power that law and the courts are able to garner through respect and persuasion. The Supreme Court, without even the ability to enforce its decisions, has made itself an important political actor in many American dramas, including the drama of Marbury v. Madison whereby it created for itself the power to review the Constitutional legitimacy of the actions of the legislature. “Armed with the power of declaring the law to be unconstitutional, the American magistrate perpetually interferes in political affairs.” “He cannot,” however, explained Tocqueville, “force the people to make laws, but at least he can oblige them not to disobey their own enactments and not to be inconsistent with themselves.” The power of prestige is the great power of law, the courts, and the Supreme Court, without this there would be neither Brown v. Board of Education nor Dred Scot v. Sandford.

This chapter thoroughly examines the account of the power of courts as explained by the supporters of the Constitution in Federalist Papers No. 78. Specific examples of the Court’s literary power are found in Marbury v. Madison.


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