Reviving Tocqueville's America: The Rehnquist Court's jurisprudence of social discovery

John O. McGinnis*

*Corresponding author for this work

Research output: Contribution to journalReview articlepeer-review

30 Scopus citations

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 the private ordering of social norms that 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 state governments or from citizens voluntarily gathered together or randomly selected. The 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. Ely saw the Warren Court as an attempt to constitute a functioning majoritarian democracy and improve its outputs. But in our era 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, the kind of decentralized civic order described by Tocqueville engages the citizen and restrains special interests through competition, whether the competition is among different states or among different associations. The Rehnquist Court jurisprudence is designed to sustain this more decentralized system of order by protecting the autonomy of decentralized "discovery machines" for social norms, like mediating institutions and state government, from the encroachments of more centralized power.

Original languageEnglish (US)
Pages (from-to)485-571
Number of pages87
JournalCalifornia Law Review
Volume90
Issue number2
DOIs
StatePublished - 2002

ASJC Scopus subject areas

  • Law

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