Summary of Chapter VI: Judicial Power in the United States, and Its Influence on Political Society
Though Tocqueville has seen other republics, he has never seen a judicial system like that in the United States. He finds the judiciary in most countries has a passive political role. Judges simply rule on the cases given to them according to the law of the land. In America, however, judges have immense political power in that they found their decisions according to the Constitution rather than on the laws. They can pronounce laws unconstitutional.
In France, the constitution is not supposed to change, and in England it can be modified by Parliament. In the U. S. however, the Constitution is “a detached whole, which, as it represents the will of the whole people, is no less binding on the legislator than on the private citizen” (p. 100). It is the origin of all authority.
Judges therefore have the power of interpreting the Constitution. It is the first of laws and is given preference over all other laws. If a judge finds a law to be unconstitutional he may refuse to admit it as a rule, so “few laws can escape the searching analysis of the judicial power for any length of time, for there are few that are not prejudicial to some private interest or other” (pp. 101-2).
Tocqueville finds this American method of testing the law, by bringing private suits to court, instead of through political attacks by party, “most favorable to liberty and to public order” (p. 102). In a free country like America, no one is above the law, including elected officials.
Commentary on Chapter VI: Judicial Power in the United States, and Its Influence on Political Society
Tocqueville is impressed by the American judicial system and the political role it plays. It is not passive in just pronouncing on specific cases when called upon; it actively shapes the law by interpreting it in light of the Constitution, the primary law of the land, thus keeping down the influence of special interests. He finds this practice “one of the most powerful barriers that have ever been devised against the tyranny of political assemblies” (p. 103).
Furthermore, no one is above the law, and this keeps officials more honest, for they can be indicted and punished by the people in a court of law. Few impeachments or political trials are needed because the law is constantly tested in the courts in minor prosecutions, a preventive measure so that major political trials are avoided.
The terrible punishments given out by judges in the Middle Ages did not deter crime. When justice is more certain and mild, it is more efficient. He contrasts this system to the current French courts in which there is no separation of powers, and therefore, the king presides over both administrative and judicial functions. Tocqueville finds this blatant injustice “painful” to reflect upon (p. 105).
Summary of Chapter VII: Political Jurisdiction in the United States
Political jurisdiction means the temporary right of pronouncing a legal decision by a political body. In the United States, the House of Representatives may impeach, and the Senate may punish an offending public official. In America, however, such a political trial merely ends in removal from office, while in Europe the political tribunal can enforce the penal code. Only a civil jury in America can punish the official after being dismissed.
Commentary on Chapter VII: Political Jurisdiction in the United States
The political tribunal in Europe is more threatening with its severe punishment, and it violates the idea of division of powers by having the legislative body both judge and punish an offender. The American system preserves the separation of powers, since the legislature can only remove someone from office but not inflict punishment. The penalty for an official may not be as heavy, but it is the mildness of the American system that ensures justice, because removal from office is a punishment by majority opinion, a form of ostracism. It thus constitutes “a temperate and regular influence” (p. 111). This kind of trial by public opinion is a sort of political jurisdiction creating “the most formidable weapon that has ever been placed in the grasp of a majority” (p. 111).
Summary of Chapter VIII: The Federal Constitution
This lengthy chapter, under the following subheadings, deals with how the national sovereignty is granted to the federal government, the supreme authority of the Union.
History of the Federal Constitution
From the beginning, there were two impulses towards government in the colonies: one geared toward the local interests of each area (town, state), and a larger one for union of all interests against common enemies (federal). Once the Revolutionary War ended, the original Union ended with its impotent constitution. Tocqueville praises the new country for withdrawing its first national constitution to reconsider itself and its federal powers for two years. The Constitutional Convention, led by George Washington, “contained the finest minds and the noblest characters that had ever appeared in the New World” (p. 114). These leaders produced the new Constitution, which commenced the Federal government in 1789, and is still in effect.
Summary of the Federal Constitution
The first problem was to balance the sovereignty between the states and the Union. The Union was carefully defined, and what was not specified was left to the states. The states prevailed, and the federal government was the exception. The Federal high court was to maintain the balance of power between the two.
Powers of the Federal Government
The Federal Government can declare war, make peace, control the monetary system, the mail, the national roads, can levy taxes, and can override state government in cases where the Union is threatened.
Legislative Powers of the Federal Government
A spirit of compromise led to the two legislative houses being constituted on different principles. There were two ideas of a Union to begin with. Some wanted to see a league of independent states that would meet as a congress. Another group wanted to see one nation formed.
In the first scheme, it would be a majority of states that would prevail, while in the second scheme, it would be a majority of the whole population that would make the laws. The Senate became the body where each state had equal weight with two senators. The House of Representatives is the body that is proportioned to the population of each state. This leads to the paradox that a minority in the Senate could oppose the majority in the House, yet there is so much authority in the will of the people, says Tocqueville, that the majority cannot be thwarted for long. Ultimately, the object of the Federal Constitution is not to destroy the power of states, but to restrain it.
The Executive Power
The Constitution tries to create an executive power dependent on the majority but strong enough to act within its own sphere. The President is elected but not completely independent. The Senate, for instance, oversees his relations with foreign powers and his appointments. The Senate can annul some of his acts but cannot make him act. There is always a struggle between the President and legislature, but the President has the veto, which is an appeal to public opinion.
How the President Differs from a Constitutional King of France
The President is the mere executor of the law, while the French King is part of the legislative branch. The executive branch in America is more limited than the executive in France: “The Americans have a Federal and the French a national government” (p. 123).
Sovereignty is defined as the right to make laws, and the King still has a portion of that sovereignty because the laws have no weight if he does not sanction them. The President is elected for four years, while the King’s position is hereditary. The King is also above the law, while the President is not. The President is always subject to “jealous supervision” (p. 124).
The President has great power in foreign relations and commands the army, but the American army is weak, and the country is separated by ocean from the rest of the world. In France a King cannot rule without the support of the legislature, but the American President can preside even if he loses the majority in the legislature. Public opinion, however, rules in both countries, for in France, there are revolutions if the people are dissatisfied.
Election of the President
An elective system is dangerous if the executive is powerful, for it will allure the ambitious to run for office. Fortunately, the office of President is “temporary, limited, and subordinate” (p. 129). In a monarchy, the King is always there to conduct government, but in America the government ceases to act near election time when all attention is on the election. It thus introduces instability into government. Every new election in America is like a revolution; however, “the election of the President is a cause of agitation, but not of ruin” (p. 132).
The President is officially elected indirectly through an Electoral College of representatives from each state voting as a jury on the same day. There is also a popular vote, and these two methods together ensure that the majority will make its choice known in a timely manner. Elections are a time of high passion and intrigue. The allowing of a President to run twice brings even more possibility of corruption, since the President is “an easy tool in the hands of the majority,” trying to please it rather than being a statesman (p. 138).
Federal Courts of Justice
The courts are a powerful force in America. The Union had to be able to enforce laws. One way a nation does this is through physical force; another way is through moral force. The great purpose of justice is to substitute right for might. The state courts were unsuitable for enforcing federal laws because of the conflict of interests.
The Supreme Court was created to decide national matters, with judges appointed by the President and approved by the Senate. They are appointed for life to make them independent. The Supreme Court is a blow to states’ rights on the one hand, but the Supreme Court does not usually interfere in state business unless it affects the whole country.
The Supreme Court hears cases involving ambassadors, two states in conflict, maritime affairs, constitutional questions, matters of federal law, and state laws that violate the rights of citizens. As much as possible it is desirable that the Supreme Court hears cases of individuals rather than those of states to avoid conflicts of political sovereignty.
The Supreme Court is a most imposing judicial power, the highest in the land, able to try all cases, and therefore it has great political power as well, because it may try sovereign powers, such as states. Without the seven (later nine) Supreme Court Justices, “the Constitution would be a dead letter” (p. 151). As long as people respect the law, “Their power is enormous, but it is the power of public opinion” (p. 151). A Supreme Court Judge must be a statesman of integrity.
How the Federal Constitution is Superior to that of the States
The Federal Constitution is superior to the state constitutions in construction because of the superiority of the men who composed it. The writers of the Federal Constitution lived in perilous time when there was a continual struggle against dominant authority. These men were patriots chosen for their integrity instead of their popularity. They “cast a calmer and more penetrating look upon their country” and decided the greatest fear was the abuse of freedom (p. 153). They loved liberty and therefore created constitutional restrictions to abuse through a careful balance of powers, which may or may not be present in state constitutions. In conclusion, “The conduct of the Federal government is more fair and temperate than that of the states; it has more prudence and discretion” (p. 156).
Commentary on Chapter VIII: The Federal Constitution
There are several more subheads to this chapter, mostly to provide Tocqueville’s commentary on the American Constitution. He compares and contrasts the American Federal system to other nations, such as Switzerland and Holland, finding that the American Federal system is stronger.
Other federations are weak in their powers, but the American Constitution is unique in creating a governing structure that falls somewhere between a national government and a federal government; that is, America is actually more like a national government than a loose confederation of states.
America’s federal government is unique in that its subjects are not the states but individuals. Americans are thus dual citizens of a state and a nation. This is “a great discovery in modern political science” (p. 157). It is a new species of confederation. Tocqueville saw the American federal system as providing the advantage of a small nation that best fosters freedom and democracy, and the advantage of a larger country that brings greater prosperity, opportunity, and contributions to civilization. In a great national government, the laws are uniform and conformity prevents progress, but a confederation has the advantage of uniformity and diversity, large nation and small nation, at the same time. The divided sovereignty between state and federal also provides safeguards to liberty.
Although he regards the American federal constitution as the most perfect that ever existed, it would not work everywhere. Mexico, for example, tried to use the American model of federation and could not make it succeed. The American system is complicated with two sovereignties, and it presupposes a vast discernment in the citizens, for it is a “legal fiction,” an “ideal nation, which exists, so to speak, only in the mind” (pp. 166, 167). The success depends upon educated people used to self-governance, because the boundary between state and federal are difficult in theory, though Tocqueville finds even the most ordinary American seems to understand this boundary instinctively.
Yet Tocqueville sees that a weakness of the American system is the potential problem of a dual sovereignty, for if the federal law were to clash with the state law, there could be civil war. This unfortunately happened a short time later in American history, at which time, through the Civil War, the Union strengthened its power.
Tocqueville’s comments on the dangers of the election process are prescient. His amusing description of the furor of a presidential election makes one wonder what he would make of elections today with their wasteful expenditures and media wars. He sees elections as distracting from governance, and this has been verified as elected officials have to spend so much time campaigning.
As has been mentioned already, the power of the federal government, the president’s and the executive power, and the military, have all been considerably expanded since Tocqueville’s day. He thought America successful because it was protected from the world and not subject to wars or undue influence. America was only promising then; it was not yet a world superpower.