Tocqueville makes a case for the uniqueness of judicial power in the United States. As in other nations, American judges cannot overstep authority and create laws on their own; they can only judge on individual, not general cases, and can only act when a case has been brought to court. But the power of the judiciary is much greater in America than elsewhere—because, Tocqueville says, they base their decisions not on laws but on the Constitution, and thus can even pronounce laws as unconstitutional.
Tocqueville often begins a chapter by signaling his main argument, then taking a step back and making several general points about his object of inquiry: judicial power in different types of government. Tocqueville’s argument about the power of the American Constitution still holds true today, and is one of the major unique elements of the American legal system.
While the French constitution is supposed to be immutable, and the British one can change all the time, the American constitution is neither: it’s a document representing the will of the people, and as such can be altered by changes in this will. Judges have the power to invoke a law as unconstitutional and refuse to apply it: they thus have enormous political power, but this power is mitigated by the impossibility of attacking laws outside the courts.
Tocqueville distinguishes the American constitution from both the French and the British in order to argue that its intermediary position, as neither absolutely immutable nor easily modifiable, is part of what makes it more powerful than either European system.
Tocqueville thinks this practice contributes both to freedom and to order. Since the spaces where judges can act are limited, the power of changing laws is also limited, but the power of pronouncing a law as unconstitutional is a powerful barrier against the possible tyranny of political assemblies. The possibility of indicting public officials makes politicians far less likely to exceed their sphere of authority, but the difficulty of bringing someone to trial means that this possibility isn’t abused.
Tocqueville’s argument here is complex, relying on an examination of the limits and powers of changing laws. For Tocqueville, the key element here is the fact that while it’s important that public officials can be prosecuted—since it makes them less likely to become tyrants—these checks and balances also prevent citizens from gaining too much power themselves.