Tocqueville argues that judicial power is another key aspect of American particularity: “I do not think that, until now, any nation in the world has constituted judicial power in the same manner as the Americans” (93). Tocqueville notes that judicial power is not always visible; it acts only on particular cases and disputes brought to it. These traits also exist in the United States, but there “Americans have recognized in judges the right to found their rulings on the Constitution rather than on the laws. In other words, they have permitted them not to apply laws that might appear to them unconstitutional […] it is the origin of all powers” (95). Tocqueville supports this arrangement, as unlike in England, an American legislature does not make the constitution. Instead, it is the “first of all laws” (96). Tocqueville is particularly struck by the powers now closely associated with state and federal supreme courts.

The consequences of such rulings are obvious to Tocqueville: A law declared unconstitutional “loses part of its moral force” (96). But judges can only do this about particular laws or sections of laws, which Tocqueville argues keeps judges impartial. Additionally, not all laws are disputable in this format, so many will remain unchallenged.