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

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.