Tocqueville's account of judging unites two concerns separated in recent debates over constitutional interpretation, use of discretion to serve the rule of law and respect for tradition. In Planned Parenthood v. Casey the majority upholding Roe is properly concerned with rule of law, while Justice Scalia properly criticizes departures from text and tradition. However, both evince a skepticism which undermines these concerns. This raises differences between American constitutionalism prior to Holmes and the rival strains of legal realism now dominant. Tocqueville's judicial statesmanship would perpetuate the Constitution by preserving the principles of its letter and spirit. Holmesean judges lack the classic common law basis of this jurisprudence and should not exercise discretion unguided by our founding principles. The jurisprudence of individualism yielded by activist Holmesean skepticism is inadequately opposed by Holmesean skeptical restraint and better addressed by a common law constitutionalism.
ASJC Scopus subject areas
- Sociology and Political Science
- Political Science and International Relations