How Tocqueville Read the Constitution and Judged Andrew Jackson

A French traveler saw something in America that Americans often miss: a Constitution that works precisely because it limits what anyone can do. We dive into Tocqueville’s sharp reading of federal design and put it to the test in the age of Andrew Jackson—where states’ rights, nullification, and a rising presidency collide. The result is a surprisingly balanced verdict: admiration for divided power, suspicion of centralized administration, and a sober warning about how quickly charisma can turn a popular mandate into a battering ram.

We unpack why Tocqueville leaned on The Federalist—especially No. 39—to explain how national authority and federal structure coexist. He champions a system where Washington enforces its own laws but leaves most daily governance to the states, gaining a specialization of labor that protects liberty. Yet he’s no romantic about state governments. He worries about short terms and direct democracy, arguing federalism’s main virtue is checking power, not guaranteeing flawless policy.

Jackson becomes the test case. We explore his claim to independently interpret the Constitution, his battle against nullification, and his instinct to push authority back to the states. Tocqueville does not fear a dictator in uniform; he fears a president declaring, “I alone represent the people,” and using that line to short-circuit institutions. Then comes the long view: foreign policy inexorably enlarges executive power, turning external crises into a domestic shift toward the White House. Alongside this, Tocqueville’s most modern insight rings out—every major conflict becomes a legal fight, and the Supreme Court’s prudence can steady or shatter the Union.

If you care about constitutional government, executive power, judicial review, and the tension between national authority and states’ rights, this conversation offers clarity without nostalgia. Press play, subscribe for the next installment in our Tocqueville series, and leave a review with your take: which branch is America’s real guardian of liberty today?

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Transcript

Setting The Tocqueville Series

SPEAKER_00 0:46

Welcome back. We are on kind of our second episode of this series we're going to do on Alexis to Tocqueville and Democracy in America. And we decided to do this because his name keeps coming up in podcasts and we thought it was really important. So if you haven't listened to the last episode, please do so. Dr. Beinberg kind of sets us up, you know, why democracy in America was written and kind of gives us an overview. But today we're going to talk about Alexis to Tocqueville and Andrew Jackson and Dr. Beinberg and the Constitution. But I also just like the not drama, but you say historical drama is kind of fun. But Tocqueville had thoughts on Andrew Jackson. So Dr. Beinberg, can you kind of give us that overview of what Tocqueville thought of Jacksonian democracy, the Constitution, all that good stuff?

Federalist Papers And Federalist 39

Government vs Administrative Centralization

States’ Rights Without Nullification

SPEAKER_01 1:43

So I want I want to just uh for those that either didn't read it, didn't listen to it, or have been a little while, I want to just re-flag something from the last podcast, which is Tocqueville says when one examines the Constitution of the United States, one is frightened by the quantity of knowledge and discernment that it supposes in the own whom it misrule. So he calls the constitution at one point the most perfect of all known constitutions, but he also recognizes it's complicated. And so democracy in America has large sections. In fact, the the Justice Joseph's story complains. He says, there's chunks of that book. It's just him ripping off the Federalist and my book. His story's like really prickly. He's like, this is just basically my book, which I don't think is fair because Tocqueville is actually quite explicit in giving credit. He says every person in Europe should read the Federalist papers. He says this is the best book on political statecraft ever written. So like he's not, he's not giving credit. Yeah, he's giving he's citing his sources. I think he cites story too. He cites a bunch of people. He usually is pretty good about that. We we know later on, actually, the uh about 15 years ago, a cool book came out that was collecting all his travel journals and letters and interviews. And so it's kind of fun to see who all he talks to. He doesn't credit that many of the interviewees in the book, but he does credit the Federalist and the legal writings. He loves the Federalist papers. There are places he thinks that they get it wrong, or subsequent events have sort of disproven it. But as a fundamental, he's just he's smitten with them. And many of I think some of the not the best parts of Tocqueville, but when when I'm doing an intro to American Civics class, I will often assign Tocqueville because in some places he's actually clearer and easier in explaining the logic of the Federalist Papers than the Federalist papers are themselves. But fundamentally, it's like the Federalist papers kept coming up for a reason too. Tocqueville deeply uh admires them. Part of why I like Tocqueville so much is I think he and I have the same favorite Federalist paper, which is Federalist 39. And he basically says that America has this brilliant system that is the best parts of a federal government where you have a sort of more sort of centralized thing that's collecting different parts, and the best parts of a national government where the national government has basic authority. So he says, you know, does this make sense in theory? No, it's crazy, but it actually works. And so, again, just to sort of reiterate the Federalist 39 argument, but this is a big part of Tocqueville's claim, he says the American system allows the federal government to enforce its own laws. This is an innovation. Usually the federal government would ask like a state government to do something. He calls this, quote, his terms are bad, I apologize, but he says this is government centralization, where there's effectively clear lines of authority that the federal government can enforce its own laws. So that's great. He says the Americans have done a cool thing with this. But he says at the same time, the federal government is limited in its scope and authority to a few powers: national defense, interstate commerce. So it can't micromanage citizens' lives. He calls that kind of micromanagement administrative centralization. He says that's bad, and the Americans don't do it. They don't let their federal government do very much. So he says this gives you a specialization of labor advantage. The feds get to concentrate on doing a few things really well, and the states do most things. They don't have to worry about fighting the federal government most of the time, and they also don't have to worry about getting invaded because the federal government takes care of that. And so he says this really he just deeply admires the way that the U.S. Constitution divides power. At the same time, he's often quite critical of the performance of the states. He thinks that the states, their constitutions, especially their early constitutions at the founding, we've talked about the Pennsylvania one as everybody's favorite punching bag. He doesn't think they're as good as the federal constitution because they have too much direct democracy, the terms are too short. This has led some scholars to think Tocqueville is pessimistic about federalism. He's not. But again, that's for him because federalism's main advantage is in checking consolidated power, not necessarily in giving you like the optimal policy outcome and all results. Now, this is where Tocqueville gets really, I think, interesting on federalism. And then this will connect back to sort of setup Jackson. Tocqueville, again, deeply loves the idea of states' rights. He tilts more toward Jefferson or Madison in viewing the Union as a compact of states. So this is where he's more like the Federalist Papers and less like the Federalist Party in Alexander Hamilton. So, like Madison and like Andrew Jackson, he thinks nullification, we've talked about that a few times. It's the idea that the states will unilaterally veto or block federal power. He thinks that is completely insane and it's antithetical to the Constitution. And he rails against John C. Calhoun and the others that have been kicking that around in the early 1830s, which again, Tocqueville's visiting America around the same time, a little afterward. So this is very much buzzing around. And so he does like Andrew Jackson for putting down nullification and saying, unacceptable. I like states' rights, but this is not a way to do it. But one thing that's quite striking, and where he actually breaks from Jackson a little bit, but not in the way people would think. And as I always used to tease my colleague Zach German, Zach German's two heroes, we'll hear about him when he's talking. My former colleague who's now in the University of Tennessee, I think his two heroes are Lincoln and Tocqueville. And they break on this because Tocqueville argues that even though nullification is unacceptable, you don't get to have a veto and stay in. Tocqueville thinks secession is constitutional, which is one of the things that Lincoln is hard on. Lincoln says, you know, constitution secession is unconstitutional. So Tocqueville says states' rights good. State's rights enforcement by secession is unfortunate, but maybe he's your last resort. State's rights enforcement by nullification is bad. Jackson won't, Jackson won't tolerate either nullification or secession. And so this that so this is going to help sort of transition to thinking about Tocqueville because he's again floating around in Jacksonian America. One thing where he doesn't quibble with Jackson, which is interesting, the scholar Jeremy Bailey has noted this. Tocqueville doesn't spend much time discussing what powers Congress actually has. He says repeatedly they only have limited powers, and this is wonderful. But like, does the interstate commerce power let you regul make a bank? As Bailey notes, this had been the main political disconstitutional fight for the last 40 years in America. Tocqueville alludes to the controversy, but doesn't say, actually, Jackson gets it right. The bank can't exist under federal power, or actually, Jackson gets it wrong. They clearly can. But just as an aside, too, I think that that should also remind us how narrow the constitutional disagreement actually had been in America, even between the Federalists and the Democratic-Republicans. Can we build a bank with the commerce power? That's important, but that is not that ultimately significant. One application, you know, one or two applications of the federal power. So and so Tocqueville is looking around at Jacksonian presidency now. Jackson, Tocqueville, excuse me, says, you know, if I look around in America, people want to be president, they get all fired up, they act stupid during election time. But he says at the end of the day, nobody really cares that much. No one's really going to risk their life or their treasure, he says, to be president. And this is interesting. He says, because look, the Constitution makes a weak federal government, and the president properly understood is a weak institution, in the sense that its powers and scope are limited. It's supposed to enforce Congress's law. Foreign policy is a bracket, which I'll come back to. So he said now, he says it doesn't get to make policy. That's the states, mostly the Fed, the Congress in some cases. I always like telling my students, and they always like their eyes bug out when I say Tocqueville says you're not going to fight that hard to be the president. But that's the rational thing to do when the president isn't that powerful. In an era when the federal government has consolidated power and then Congress has handed power to the presidency. Maybe you're actually arguing it is rational to be fight like fight like a crazy person to get your paws on the scepter. So Tocqueville is seeing the very beginnings of that. Not with Jackson claiming authority to make policy, particularly. Jackson is claiming, and on these, I think he's probably right, frankly. Jackson says, I can enforce the Constitution myself. I'm not, I'm not going to defy the Supreme Court. He gets accused of that. And we know this is one of my hobby horses. He doesn't defy the Supreme Court. But he does say, look, they made their case. I'm going to agree with them in that particular case, but I'm not bound by their reasoning. I can veto basically something is unconstitutional if they said it's constitutional. He doesn't say the reverse, that I can make something constitutional they blocked, right? But like I can, I can independently block it. But the thing that scares Tocqueville is that Jackson is starting to claim that the president is the representative of the American people. And Tocqueville thinks this makes him a demagogue because he's going to say, look, the American people are behind me, so get out of the way. Now Jackson wants to do this in a negative sense. The American people are behind me in stopping these bad things the federal government is doing. Tocqueville, in fact, points out Jackson is not, in spite what some critics say, someone aiming to establish a dictatorship in Washington or the presidency, or to act on behalf of popular pressure to have an active federal government usurping new power. In fact, Tocqueville says strikingly, Jackson wants to use presidential power to hand power back to the states. He calls him, quote, the agent of provincial jealousies who has, quote, decentralizing passions. Now remember that in general, Tocqueville thinks that America and democracy tilts too much toward centralization. But looking around at Jacksonian America, he actually thinks that maybe the opposite is happening, maybe even too much of a good thing. So Tocqueville is less afraid of Jackson's legal and policy positions. Yeah, Jackson maybe tilts a little bit too much toward the states than he should. But as we've talked about, Tocqueville is generally on board with this orientation to the federal government. So in some ways, he's sympathetic to this actually, and not all that critical on that front. But he does say that Jackson is a great threat to America because Jackson is positioning the presidency as sort of at the center of the American project. This isn't because of optics. Tocqueville's travel journal actually has this funny meeting that he records from Jackson, and it's very matter of fact. His description is pretty subdued. He's almost impressed by how unimpressive Jackson presents himself and his White House. He has no guards or people hanging out in his in his court, so to speak. He's pretty much just hanging out in a room by himself reading when Tocqueville's escort brings him in. But Tocqueville does fear that the presidency will be an engine of direct democracy or democracy sort of running amok, which again is one of his major themes of the book. Now, Tocqueville does recognize that the presidency will get stronger over the long haul because of foreign policy, which even strict constructionists of the Constitution think tends to be the place where the president has more authority than the domestic sphere. So as America gets more and more involved in foreign policy, which is almost by definition true since the looking forward from the 1830s, the presidency by nature will get stronger. That's just inevitability, he says. Again, I don't know if any of any of my colleagues, I hope one of them will talk, maybe talk about this more, if not. There's a line in democracy in America that just this is an aside from Jackson, but he literally says in the 1830s, the 20th century is going to be a war between Russia and America, with one representing central government and one representing liberty. And it's just baffling that in 1830, these are both basically backwaters. You know, real stuff's happening in Britain and in France. And he says, no, the 20th century is going to be the US and Russia as the two leading polls. I mean, it's just there's like there's some really wild predictions.

SPEAKER_00 13:45

They have a crystal ball?

Secession, Nullification, And Jackson

SPEAKER_01 13:46

Yeah, there's some really I mean there's some stuff he gets wrong, but like he's not like a prophet literally handing down instructions from God, but he's really perceptive in seeing a lot of stuff like that. So what he does recognize so that that's part of him saying America's gonna get more sucked into foreign policy. That will empower the president. And he's that will mean that'll look more like you know, in in in England and France. And as to Jackson, the man, Tocqueville is utterly contemptuous of him, although he does admire how Jackson handled Calhoun and nullification. At the same time, the paradox is the people that Tocqueville seems to be most influenced by in thinking about the Constitution, the guy he thanks the most in Democracy in America is Edward Livingston, who is Jackson's right-hand man. He's the guy who basically helps write Jackson's stuff, criticizing Calhoun. He's Jackson's basically before he's in the cabinet. He's like Jackson's basically closest ally as a senator. And he talks to Justice McLean, who is this isn't in Democracy in America explicitly, but there are lines from McLean that are almost quoted exactly. But he does an interview with McLean that's in the travel journals. And McLean is someone who had been offered important cabinet posts, Secretary of War, Secretary of the Navy by Jackson, but he turned them down. And so Jackson then appoints McLean to the Supreme Court. So Tocqueville is clearly someone who is very influenced by the thought of the Jackson of the Jacksonians and some of their leading thinkers. So I could sort of impishly suggest that in some ways Tocqueville is a Jacksonian who hates Jackson. That's overstating it a little bit, but at least there's a lot of overlap between the Jacksonian concern for federalism and Tocqueville's concern for federalism. Now, Tocqueville does have real worries about direct democracy, and that element of Jacksonian democracy does frighten him. So he's got this very, very weird relationship with uh with Jackson. Probably worth pausing. Uh, this isn't Jackson per se, but the Constitution. Tocqueville on the courts are also, and this is where he's also, this is where he is different from Jackson. Tocqueville deeply admires federal courts. He says every major issue in America ends up as a judicial issue. Again, that's a which is really weird because this is even before the 14th Amendment is applied, the Bill of Rights to the states and equal protection. He says, Oh, yeah, every every issue ends up because he says Americans are people who care about the Constitution, which is one of the things, again, he thinks checks democracy's worst excesses. So he loves the idea that the Supreme Court is this sort of thoughtful decision maker. And he points out and says, People thought at the beginning it was just going to be all team federal. No, they actually like they side with the feds sometimes, they fight side with the states other times. They seem like they're basically calling it pretty straight. So he he admires that. He does have a line in Democracy in America that I think is is really striking, where he's talking about what would happen if this goes wrong. And he says federal judges must not only be good citizens, educated and upright men, but must also be statesmen who can sort of perceive politics pretty carefully. He says, look, the president can fail without the state suffering because the president has only a limited duty. Again, this this is very alien to us today. A bad president causes real problems. Like he says, Congress can have problems without the union perishing. But he says, if the Supreme Court ever came to be composed of, and then again, think prophecy here, imprudent or corrupt men, the Confederation would have to fear anarchy or civil war. So he's calling out it. I mean, you could say he's predicting Roger Tawney in the Dred Scott case, which is when Tawne decides to say, hey, I'm imposing my slavery preferences, despite what the Constitution seems to say, not too far afterwards, civil war follows. So that's another one I like to chalk up is as uh Tocqueville's predictions. But again, Tocqueville fundamentally likes the idea of courts. He likes the idea of courts striking stuff down, and he makes an argument that sort of tracks along the lines that some originalists make about constitutionalism, which is he says courts striking stuff down and enforcing things is not unfaithful to democracy, but it's faithful to it because it's enforcing the popular sovereignty that the people have endorsed in the Constitution. So again, Tocqueville is just deeply, deeply admiring of the Constitution for all the reasons we've been talking about, but that it divides power in a kind of theoretically messy way, but that actually that the system it followed, he thinks delivers basically the best of pretty much all worlds, even if you get a knucklehead like Andrew Jackson in there. But that's conditional on sort of constitutional fidelity, which just again, going back to the last podcast, is why he thinks that sort of having a sort of civically thoughtful, educated people is just so utterly essential to making the system work. Because otherwise, you just get the sort of dumb direct democracy that he fears uh will spin out into really heinous tyranny.

SPEAKER_00 18:41

This is one of the reasons that we're doing the podcast, to make sure as many people can get this kind of education as possible. Dr. Beinberg, thank you again.