Tocqueville understood how constitutional review could enable judicial despotism. He envisaged two ways to counter it: by the democratic election of judges; or by creating a process of constitutional amendment. He gave short shrift to the first. On his voyage to America, Tocqueville was shocked to discover that several states had an elective judiciary. He thought it abominable: “I dare to predict sooner or later these innovations will have harmful results and that one day you will see that by diminishing the independence of the magistrates in this way you have attacked not only the judicial power but also the democratic republic itself.” He rejected the “secret tendency” in the United States that “leads the people to reduce the judicial power” in this way. If one purpose of the courts was to resist the tyranny of the majority, electing their members seemed like a bad idea. Tocqueville was even suspicious of the ability of state legislatures to impeach.
The only good way to limit the potential for judicial despotism was, therefore, the amendment process. This was plausible in Tocqueville’s time. He published the first volume of Democracy in America in 1835, when he had before him the precedents of the first ten amendments, which followed closely on the ratification process. Perhaps still more importantly in this context, the 11th amendment had been passed in 1795 to reverse a Supreme Court judgment of 1793 (Chisholm vs. Georgia), and there was also the 12th amendment, passed in 1804 to remedy the flaws in the process of electing the president revealed by the election of 1800. Constitutional change did not seem insuperable. This was still true later in American history. When the Supreme Court rejected the power of the federal government to levy an income tax in 1895, an amendment overturning this decision was passed in 1909 and ratified in 1913—still fairly quick work (I am deliberately overlooking the post-Civil War amendments). That was the last time the amendment process was used to overturn a Supreme Court decision. Nevertheless, the amendment process was used with relative frequency thereafter—ten times through 1971.
But for the past 50 years, the amendment process has proved a largely insuperable barrier to change. The last significant amendment was the 26th, passed in 1971, giving the right to vote to those over 18. Overlooking the trivial 27th amendment, passed in 1992 after waiting in the wings for 202 years, there has been nothing since. By comparison, recent European constitutions do not have this problem. The German Federal Constitution of 1949 has been amended 62 times. Even the EU Treaties, which effectively serve as the EU constitution, have been amended more often (four times since 1958).
What then remains of Tocqueville’s democratic check on the despotism of the Supreme Court? Little or nothing.