Chapters five, six, and seven are concerned more with the details of the law and organization of the American political structure than with general theories as to its governance. Chapter five concerns the ground-up formulation of the American government, emphasizing the regional autonomy of townships and counties, but stopping short of analyzing the federal government. Chapter six looks at the judicial system as it is practiced in both general principle and specific case. Chapter seven is a look at the American political jurisdiction and how it compares to France.
Chapter 5 – Necessity of Studying What Happens in the Individual States before Speaking of the Government of the Union
It is important to remember the time in which Tocqueville’s travels around the United States took place. This was only a little under fifty years since the American Revolution, in which the union of states truly was a union of separate states, and about forty years prior to the Civil War, in which the federal government demonstrated its willingness and ability to maintain that union by use of artillery and the blood of its young men, if need be. The centralized federal authority present at the time of the early nineteenth century would be nearly unrecognizable to today’s audience; very few government administrations existed, the President’s power largely had to do with foreign policy and very general domestic interstate affairs, and doing his best to get congress to work together. Congress was smaller and few career politicians could be found. The United States’ government, as such, was a tightly-organized but loosely-run group of people.
This is why, as Tocqueville begins chapter five, he mentions how the United States government seems to comprise “[t]wo completely separate and nearly independent governments”: one which includes the day to day operations of federal power, and the other to address more generalized principles of governance (98). But the states themselves, he says, remain “twenty-four small sovereign nations, that together form the great body of the Union” (98). How the times have changed.
Tocqueville goes on to briefly reiterate how the political structure of the American union grew from the grassroots of the colonial infrastructure and culture upwards. The federal government appeared last, not simply because it was necessitated by the revolution, but because the polity of the individual units did not have a need for a union. Indeed, though Tocqueville doesn’t mention this, the failure of the first attempt at federal governance, the Articles of Confederation, stands testament to the desire of the post-colonial powers to remain as individual from one another as possible. In maintaining this theme, Tocqueville begins his analysis of the political organization of America with addressing the three vessels of political organization: the town, the county, and the state.
“Town society,” Tocqueville says, “exists therefore among all peoples no matter what their customs and their laws; it is man who establishes kingdoms and creates republics; the town seems to come directly from the hands of God” (101). While men establish fiefdoms on Earth, they can do so only after conglomerations of people have already come together and incorporated into townships and small community municipalities. Tocqueville notes how the liberty of the town is quite often and easily overridden by larger established governing bodies, as the failures of justice that take place on the most local of political levels makes it easy for people to point fingers. Blame, and thus intervention by other jurisdictions, is more readily accepted by the town body.
However, in spite of this, the town is never really eradicated as a fundamental structure of political organization. Town institutions, even if usurped, remain present, and either the culture adapts or the people reassert their authority upon them. However, towns which lose the institutions’ sense of independence and freedom, he explains, indicate the failure of the society at large. “Without town institutions”, Tocqueville says, “a nation can pretend to have a fee government, but it does not possess the spirit of liberty. Temporary passions, momentary interests, the chance of circumstances can give it the external forms of independence; but despotism, driven back into the interior of the social body, reappears sooner or later” (102-103).
In order to better explain the structures of states and the local jurisdictions involved, Tocqueville mentions that he used a particular New England state as a model. The reason is several-fold: firstly, the towns in New England are, in general, of considerable age at the time of his writing; as such, they were among the first in the colonies to reach maturity. Likewise, they served as models for development and settlement in much of the rest of the United States as it expanded and filled out its geographic boundaries. And, as a foreigner, Tocqueville found that the maturity of the structures involved made them more easily recognizable and identifiable, and thus easier to study.
Over the next several pages, Tocqueville impartially explains the general organization of any given New England town’s administration. Selectmen, officials who hold most of the public administrative power, are elected once a year to preside over the general will of the people not unlike a mayor would. Other magistrates are also elected to serve, in a general way, the will of the selectmen—tax assessors and collectors, constables, clerks, and treasurers, among others. These offices number in total nineteen. Interestingly, Tocqueville mentions how “[t]he American system, moreover, does not give any fixed salary to officers. In general, each act of their administration has a value, and they are remunerated only in proportion to what they have done” (107). Whether this still holds true today, I can’t say.
Whatever the present circumstances, Tocqueville moves on to examine town life, beginning with the manner in which political power is imbued to each citizen of the township:
“Among nations where the dogma of the sovereignty of the people reigns, each individual forms an equal portion of the sovereign power, and participates equally in the government of the state.
Each individual is therefore considered to be as enlightened, as virtuous, as strong as any of his fellows.” (108)
In sum: the subjects of the polity do not worry themselves much with the behavior of their peers, expecting of their peers the same standards that they individually impose upon themselves. The fires of the Enlightenment burn strongest in passages like these. Exactly what Tocqueville is referring to here is difficult to ascertain, as is typical of most Enlightenment metaphysics. He does, however, find his way back to making sense when he addresses the importance of the democratic aim:
“In all that concerns only himself, he has remained the master; his is free and is accountable for his actions only to God. Thus this maxim, that the individual is the best as well as the only judge of his particular interest and that society has the right to direct his actions only when it feels harmed by them, or when it needs to call for his support.” (108)
To each his own, he says, in recognizably American spirit. He ties this into his analysis of the town polity by explaining that just as this maxim is the foundation of behavior between the individuals of America, so too is it the foundation of behavior between the townships. The towns, born in the wilderness by settlers from either other towns or, originally, from across the ocean, were made by rugged individuals and developed into the centers of culture he witnessed in his time. That ruggedness was the seed of their prosperity. As mentioned in earlier chapters, the charters to secure the land for settlement were, in large part, bureaucratic formalities to settle the legal ownership of colonial endeavors. The actual settlement, however, was not legislated or overseen by any authority except those who settled. As Tocqueville mentions, “[t]hey did not therefore receive their powers; on the contrary, they seem to have relinquished a portion of their independence in favor of the state; an important distinction” (109). “No one among the inhabitants of New England,” he continues, “recognizes the right of the state government to intervene in the direction of purely town interests” (109). Again, how the times have changed.
“You must realize that in general the affections of men go only where strength is found”, Tocqueville writes, in relation to the spirit of the New England town (111). New Englanders, he says, are attached to their townships not simply by coincidence of their birth, but because the towns incorporate their individual desires and augment their needs, forming a true community. Europeans seem to lament the loss of a town spirit due to the fear that too much individual autonomy would lead to anarchy, yet in New England, it is precisely that liberty which keeps the town together and functioning. He briefly notes how the county, state, and far-off federal governmental positions are of comparatively limited power and scope in comparison to town magisterial positions—in part because there are so few of them, in addition to the distinctly temporary term of service that, say, the presidency holds. As a result, the town holds a more significant place in the ambitious pursuits of individual power. It remains the home, workplace, and common forum of New Englanders in a way that the old world had lost.
He concludes his analysis of the town with these thoughts:
“The inhabitant of New England is attached to his town, because it is strong and independent; he is interested in it, because he participates in its leadership; he loves it, because he has nothing to complain about in his lot. In the town he places his ambition and his future; he joins in each of the incidents of town life; in his limited sphere, accessible to him, he tries his hand at governing society. He becomes accustomed to the forms without which liberty proceeds only by revolutions, is infused with their spirit, acquires a taste for order, understands the harmony of powers, and finally gathers clear and practical ideas about the nature of his duties as well as the extent of his rights.” (114)
The politicization of the commoner, a distinct—if unstated—goal of the Enlightenment political discourse, finds its culmination in the American townsperson. Tocqueville identifies and celebrates the need for the common citizen to participate not merely in his own commerce, but in the town polity in order to maintain order and the somewhat ambiguous foundation of liberty that the Enlightenment thinkers so valued. And yet, how difficult has it turned out to be for the common citizen to juggle his work, his family, his desires, and the politics of his local municipality all at once? Two hundred years later, it should be of little surprise that this system has become a cumbersome and unruly bureaucracy in which the individualist ethos so touted by Tocqueville has been rendered unrecognizable.
The County and Administration of New England
Tocqueville moves on to discuss the county and broader administrative capacities of the New England region. The county, he says, exists predominantly as a “judicial center” because the townships were “too limited in area ever to contain the administration of justice” (114). All county seats exist either to oversee and to guide, in a loose way, town politics, or are otherwise merely vessels to implement the regulations passed by state legislature. Strictly speaking, Tocqueville says, “the county has no political existence” (115).
With very little to say about the county’s structure, Tocqueville continues on to the general administrative aspects of the state itself. Most strikingly, he says, is “the absence of what among us we call government or administration. In America, you see written laws; you see their daily execution; everything is in motion around, and the motor is nowhere to be seen” (116). Some level of authority is necessary to prevent a society’s collapse into anarchy, he acknowledges, so at first glance, maintaining solid authority of governance with liberty seems incongruous. But it isn’t. He goes on to explain that there are two ways in which authority in a society can be diminished, only one of which leads to, he believes, a more utopic balance of freedom and order as represented by the United States.
The first method concerns removing from the society “the right or the capacity to defend itself in certain cases”, although aside from commenting that this was Europe’s method of establishing liberty, and that Tocqueville himself considered it “barbaric and antisocial”, he doesn’t explain exactly what he means here (116-117). The second method is of greater concern: the division of executive power within a society. He writes:
“So in the United States, the Americans did not claim that, in a free country, a man had the right to do everything; on the contrary, social obligations more varied than elsewhere were imposed on him. They did not have the idea of attacking the power of society in its principle and of contesting its rights; they limited themselves to dividing power in its exercise. In this way they wanted to make authority great and the official small, so that society might continue to be well regulated and remain free.” (117)
The extreme degree of autonomy which rests in the township in comparison to the county or state levels, coupled with the general democratic ethos of the American social state, Tocqueville argues, is what preserves the rule of law. The power to maintain the social order is vested in not one individual office, such as a mayor, but in—as we saw earlier in the chapter—some nineteen public officials. At the town level, the variety and dissolution of executive powers—even independent of their offices being elected rather than appointed—ensures that no significant transgression of liberty is feasible. The strict limits on each office’s powers, in addition to the delegation of those powers across multiple offices, means that each office effectively abuts one another. In extreme cases, county officials exist to step in to mitigate grievances, but only in cases where the grievances are of county concern. The power of the locality, the township, is nearly absolute.
Tocqueville continues on to explain how officials are directed by those they govern. Elected officials cannot be forcibly removed from office until the end of their term, in which case elections will do the work of maintaining the people’s sovereignty. As a result, elected officials have no particular hierarchy, and cannot be promoted or, in a word, fired—just replaced. Tocqueville mentions, however, “both the right to command and the right to quell disobedience effectively cannot be given to the same man”, referring to the tendency of developing tyrants that both powers vested in one office leads to (121). A judicial intermediary is necessary to settle disputes between these various smaller sections of government. In America, Tocqueville notes, an English position—foreign to the governments of Continental Europe—was implemented in order to ensure that the ends of both law and social wellbeing were served: the justice of the peace. An “enlightened citizen” served this role, though “not necessarily one who is versed in knowledge of laws” (122).
The justices of the peace are appointed by the governor of the state and serve seven year terms. In each county, courts of sessions are organized, consisting of three of these justices of the peace. These courts meet twice a year to review and hold accountable the magistrates of the town polity. Tocqueville notes how “[c]areful attention must be paid to the fact that in Massachusetts the court of sessions is simultaneously an administrative body strictly speaking and a political court”, emphasizing how these positions mediate between the civil and the political realms (124).
Tocqueville mentioned earlier in this chapter the difficulty in maintaining a state-wide cohesive order when faced with the distinct individualism and autonomy of town politics. The courts of sessions are, generally, the mechanism in place to ensure that county-wide administrative policies are enforced. Fines and fees are levied against the people of the town should, say, taxes neglect to be collected due to the town’s unwillingness to elect a collector. The courts of sessions act as a check on this autonomy without necessarily overriding it.
He continues, however, to note the difficulty that arises in maintaining the cohesive order on the part of the officers themselves, rather than merely the offices they entertain. Courts can intervene to dispense justice upon officials found in direct error by either having neglected the duties of their positions or by having trespassed the boundaries of their offices. Courts cannot, however, intervene in cases where the letter of the law is carried out at the expense of its spirit. Courts of sessions cannot force selectmen, for instance, to be either intelligent or enthusiastic about their jobs, only dutiful in them.
General Administration of the United States
Having detailed New England organization, Tocqueville goes on now to address the general structures of towns in the rest of the union. He acknowledges the uniqueness of New England polity, and writes “[a]s you move toward the south, you notice that town life becomes less active” (130). As town involvement in politics becomes less noticeable, the magistrates exert a greater influence and power over their electorate. The northwestern regions, however, do not suffer this relative decline in political activity, as most of the northwestern regions were settled by New Englanders who brought with them their own flavor of democracy.
In most states where the town ceases to be the primary locus the polity, the county instead takes its place both administratively and legislatively. Tocqueville does not dwell on the distinctions for long, allowing instead the brief connection between the right of the county legislatures to tax and their authority as legislative bodies to parallel the electoral positions of New England townships. “The town and county are not constituted in the same way everywhere;” he writes, “but you can say that everywhere in the United states the organization of the town and county rests on the same idea: that each person is the best judge of what concerns himself alone, and the one most able to provide for his individual needs” (132). In such a way are the town and county responsible for pursuing and resolving the special and individual interests of their polities. The state, broader in scope and larger in jurisdiction, governs broadly according to principles rather than settling specific disputes.
Tocqueville kicks off his section on the state by describing the organization of the state legislatures. In each state, the legislature is divided between two houses—the all-familiar representative and senatorial houses. In this division, Tocqueville points out that the states avoided the creation of one purely elective house and one purely hereditary house that their old template, England, had used for centuries. Power, however, remained decentralized and the houses each acted as appropriate checks against one another.
The governor, who represents the administrative and executive powers of the state, is an executor in a very limited fashion. Given that the prevailing means of authority remain either in the townships or county jurisdictions, the governor’s executive powers extend purely to managing the relations between these bodies. He is “armed with a qualified veto”, Tocqueville writes, “that allows him to stop or at least slow the legislature’s movements as he wishes” (140). He is also the commander of the state’s militia—today more fully incorporated under state rule as the National Guard, though technically distinct from the traditional meaning of ‘militia’. Generally, Tocqueville notes, the governor’s term is only for a year.
Administrative Decentralization in America
For Tocqueville, centralization exists in two forms:
“Certain interests are common to all parts of the nation, such as the formation of general laws and their relationships of the people with foreigners. Other interests are special to certain parts of the nation, such as town enterprises for example. To concentrate in the same place or in the same hands the power to direct the first is to establish what I will call government centralization. To concentrate in the same way the power to direct the second is to establish what I will name administrative centralization.” (143-144)
In France, these two forms of centralization were become clear when distinguishing between the reign of Louis XIV and the post-Napoleonic bureaucratic governments. Under King Louis XIV, Tocqueville writes, the former sense of centralization was immediately evident and, in fact, supreme; this was the man, after all, who declared “I am the State!” However, the administrative sense of centralization was barely present during his so-called absolutist rule, in part because despite wielding supreme power—or, perhaps, because of it—monarchical France had a relatively small government in comparison to what would come a few generations later. Post-revolutionary France, with its innumerable bureaucracies and administrations, would be vastly more penetrative into the local lives of its citizens than any government they’d had before. Tocqueville draws such a connection between administrative centralization and tyranny: “administrative centralization is suitable only to enervate the peoples who submit to it, because it constantly tends to diminish the spirit of citizenship in them” (147).
He goes on to add that, once established, administrative centralization is nearly impossible to dismantle without destroying the entire society in the process. “When the law-maker undertakes to scatter this administrative power”, Tocqueville writes, “he does not know where to begin, because he cannot remove one piece of the mechanism without disrupting the whole thing. At each moment, he sees that either nothing must be changed or everything; but what hand, so foolhardy, would dare to smash with one blow the administrative machinery of a great people?” (148). So clearly does this illustrate the present state of the American federal apparatus that it’s almost as if this had been written specifically as a warning to us. Unfortunately, the present administrative state is well beyond what Tocqueville would probably have thought imaginable at the time. He continues, this time on the subject of despotism, in a passage that must be quoted at length:
“Moreover, one of the greatest misfortunes of despotism is that it creates in the soul of the men submitted to it a kind of depraved taste for tranquility and obedience, a sort of self-contempt, that ends by making them indifferent to their interests and enemies of their own rights. In nothing, however, is it more necessary for the governed themselves to show a definite and sustained will.
Nearly all the passionate and ambitious men who talk about centralization lack a real desire to destroy it. What happened to the Praetorians happens to them; they willingly suffer the tyranny of the emperor in the hope of gaining the empire. So decentralization, like liberty, is something that the leaders of the people promise, but that they never deliver. In order to gain and keep it, nations can count only on their own efforts, and if they themselves do not have a taste of it, the evil is without remedy.” (148-149)
Inevitably, perhaps, the complete lack of administrative centralization that was found in the United States at the time of Tocqueville gradually faded in distinct phases, beginning with the Civil War. As we got more comfortable, Americans simply lost the taste for the liberty that Tocqueville spoke of. Tocqueville notes some of this, though more from the governmental rather than administrative perspective. There is no limit to the action of state legislatures other than their own will, he says, with the executive enforcement readily available in the form of the militia. The militia, however, is not a standing military force, and the organization of the town polities ensures that the will of the state is limited at least logistically, if not explicitly in theory.
Tocqueville spends the next several pages comparing the nature of administrative centralization in the states—or lack thereof—with the methods of its organization back in France. It becomes, he effectively writes, a mechanism that exists purely to serve itself, even as it administrates to the people of its polity. This ensures a certain level of long-term stability in the social system, but at the expense of the liberty and enthusiasm of its people. His words on the differences between the American rejection of centralized administrative control and the European expectation of “an official constantly at hand who gets involved in nearly everything” (155) are striking, underlining how deeply the differences between Continental European governance and the American ethos run. The tendency toward a so-called enlightened bureaucratic regime is much older than the mere post-war European Union infrastructure. The European may find the American order less comprehensible, but, perhaps because it is less comprehensible in its whole, it has at its core a guaranteed seed of self-preservation that every citizen must foster for himself. “What is found there”, Tocqueville writes, “is the image of strength, a little wild, it is true, but full of power; of life, accompanied by accidents, but also by activities and efforts” (156).
He goes on to wax rhetorically about the nature of the all-consuming administrative state, but behind his rhetoric lurks the evil of the leftist paradigm as it manifested in both the Soviet Union and, in somewhat altered hue, the present American social state. He describes the totalitarian villainy that dominates and defines all states in which administrative centralization became entrenched, and succinctly addresses the mindset that both gives rise to it and that it fosters:
“There are such nations in Europe where the inhabitant considers himself a sort of settler, indifferent to the destiny of the place where he lives. The greatest changes occur in his country without his participation; he does not even know precisely what happened; he surmises; he has heard about the event by chance. Even more, the fortune of his village, the policing of his street, the fate of his church and his presbytery have nothing to do with him; he thinks that all these things are of no concern to him whatsoever, and that they belong to a powerful stranger called the government. At each moment, you think you hear him say: what concern is this to me; it is the business of the authorities to provide for all of this, not mine. As for him, he enjoys these benefits like a usufructuary, without a sense of ownership and without ideas of any improvement whatsoever. This disinterestedness in himself goes so far that if his own security or that of his children is finally compromised, instead of working himself to remove the danger, he crosses his arms to wait until the entire nation comes to his aid. Moreover this man, even though he has so completely sacrificed his own free will, likes to obey no more than anyone else. He submits, it is true, to the will of a clerk; but, like a defeated enemy, he likes to defy the law as soon as power withdraws. Consequently, you see him oscillate constantly between servitude and license.” (157)
Tocqueville’s adroitness with which he both identifies and addresses this subject is startling in its accuracy, particularly when the realities of the Soviet state and post-capitalist West. It is not hard to see the parallels between this cowardly subject and the protagonists of too many so-called serious literary works published today. Tocqueville continues: when the social state of any nation has reached this point of depravity, “the source of public virtues has dried up; subjects are still found there, but citizens are seen no more” (157).
As a child of the post-revolutionary and Napoleonic mess that France plunged itself into, Tocqueville’s contempt for despotism and secularism is as understandable and relevant as it is vivid. He writes that the staying power of nations and cultures relies more on the religion of a given people than the will of their given leader or tyrant. “Despotism,” he believes, “can sustain nothing lasting. When you look closely, you notice that what made absolute governments prosper for a long time was religion, and not fear” (159). The shared belief in the same metaphysical reality is what sustains and undergirds the cultures and customs of a society. The rule of a despot dwells at the tail end of that causal chain.
Likewise, Tocqueville notes that the religion of a given people is what will both stir them to action and maintain the social order, but the laws of a given nation ensure that the maintenance of that order is not left by the wayside. “And do not say that it is too late to try;” Tocqueville insists, since “nations do not grow old in the same way that men do. Each generation born within the nation is like a new people who comes to offer itself to the hand of the law-maker” (160). In typical Enlightenment fashion, it remains to the hand of the lawmaker that generations of men are to be primarily of service. Despite his odes and rallies against the despotism of the administrative state, his distinction between the political and administrative forms of centralization manages still to ring somewhat hollow.
And yet, when Tocqueville puts that distinction in context with life back in France, his words become a little clearer. On the continent, the public official is seen merely as a vessel of force, rather than a vessel of justice. In America, due to the decentralized administrative state of its organization, “a man never obeys a man, but obeys justice or the law” (160). The fragmentation of administrative bureaucracy allows for the political centralization of America’s democratic system to remain functioning, pure, and distinct from the despotic tendencies that coincide with democratic government. This makes enterprising and organization among fellows much easier, even if it comes at the expense of the more stable and guaranteed methods of business starting in the old world, where agreement with public officials was necessary before businesses could be launched. Tocqueville considers the American alternative somewhat preferable, as it guarantees that the people who are organizing are organizing within their best interests, streamlining the administration of their needs rather than waiting for a governmental authority to get around to servicing them.
However, Tocqueville again warns, “there are no nations more at risk of falling under the yoke of administrative centralization than those whose social state is democratic” (162). Democracy’s tendency to be eroded toward the election of tyrants, in addition to the tyrant’s tendency to centralize as much administrative power as he can get his hands on, ensures that sooner or later, the liberty of a decentralized administrative authority will erode away. Like dominoes, once the fabric and culture of a self-established democratic society has worn thin enough to prefer tyrants to self-rule, the next in line to fall is the freedom to self-administer the services of liberty.
Tocqueville ends this chapter noting that liberty, when imperiled, is almost universally threatened by the very people who claim to be its defenders and proponents. Often, these people may not even realize that their aims and goals are in service to an administrative state that is by nature antithetical to the freedom of a democratic society they so revere. Others, fewer, are mere tyrants who cynically pursue power in secret while merely paying lip service to the values of the society at large. In any case, Tocqueville’s insight to the tendencies of democratic societies, the distinction between administrative and political centralization, and the state of American culture and politics in the early nineteenth century are all, in their own ways, stunning when compared to the state of the same region today. It can be difficult to conceive of this nation, as the differences that Tocqueville paints between the Europe of his time and the America of his tours end up making his Europe sound more like the America of today: largely centralized both politically and administratively, dependent upon the implementation of force, and with declining respect for the rule of law. Granted, this pessimistic take on the present American is largely limited to the urbanized centers near the American coasts, rural country, the Midwest, and the mountainous regions tend to resemble more closely the portrait supplied by Tocqueville of the old system. And yet, still the system remains irreparably lost.
Tocqueville begins his look at the judicial system of the American government with a brief aside: the European court system, he claims, is politicized seemingly beyond hope of redemption. The Americans, however, have maintained the separation of judicial polity, without losing what judicial powers are intended to maintain. They have “kept all the characteristics by which the judicial power is customarily recognized. They have enclosed it exactly within the circle where it habitually moves” (169).
Due to how cases are brought before the courts, judges are unable to extend their arbitrative powers to the realm of politics and the substance of law unless the case directly requires it. Judicial review is impossible unless a case directly brings into question any given law. This general purview of judiciary power constitutes the first characteristic, in Tocqueville’s view, of judicial power.
The second concerns the arbitration of specific cases and the passing of verdicts in relation to those cases, even if they end up transgressing the general principles of the law. As Tocqueville points out, exceptions, more or less, can be made on a case by case basis, but “should a judge directly attack the general principle and destroy it without having a particular case in view, he goes beyond the circle where all peoples have agreed to enclose him” and becomes essentially a renegade, “something more important, perhaps more useful than a magistrate, but he ceases to represent judicial power” (169).
The third and last characteristic Tocqueville mentions is that judicial power is fundamentally a passive force, in the sense that it does not act of its own volition on its own agenda. Cases must be brought before the courts, the courts cannot investigate where there is no person or group bringing forward an investigation.
Tocqueville draws a categorical distinction between the American constitution and the American laws. The latter is defined specifically as having been derived by the principles of the former, and it is by the former which the judiciary is intended to act. In the American system, courts of law exist to review laws as they are enacted upon the people, but they can only be reviewed within the context of the American principles that maintain the nation as a singularly distinct polity. Tocqueville explains:
“In the United States, the constitution dominates the legislators as well as ordinary citizens. It is, therefore, the highest law and cannot be modified by a law. So it is right that the courts obey the constitution in preference to all laws, and by doing so, they do not make themselves masters of society since the people, by changing the constitution, can always reduce the judges to obedience. So American judges refuse without hesitation to apply laws that seem to them contrary to the constitution. This follows from the very essence of the judicial power: to choose from among legal provisions those that bind him most strictly is in a way the natural right of the magistrate.” (173)
Tocqueville is quick to note the general similarity to what was at the time the contemporary French system of judicial power, as France had an unchanging constitution at the time that he wrote. However, French courts lacked the mobility to avoid infringing on other declared rights if they dared rule such that they ignored an existing law. The lack of elasticity in the French system distinguishes it as particularly centralized in the administrative sense, which was covered in the previous chapter. He adds, in line with this theme of elasticity, that when the courts ignore or rule against a particular law often enough, in the American system, it becomes clear that the populace does not wish or value the law that is being contested. In such cases, either the constitution is changed in order to diminish the role of judicial power, or the law in question is removed from the books by the legislature.
That courts require specific cases by which to judge the laws keeps the judiciary from becoming too heavily politicized. Tocqueville notes how if a judge could simply attack the laws independent of trials and cases, then “there are times he would be afraid to do so; there are other times when the partisan spirit would push him daily to do so”, which, he adds, means that “the laws would often be challenged when respect for them would be most useful, and would be respected when oppression in their name would become easy” (174-175).
Tocqueville concludes his brief look at the judicial powers by mentioning the manner in which citizens can denounce or attribute grievances to magistrates and elected officials within the court of law. As denouncements in the papers are easy but lacking in substance or merit, the sheer logistics of mounting a lawsuit ensure that grievances are well-founded enough to be worthy of a judge’s time. Naturally, the judge is beyond the power of the legislative or administrative bodies to be politically influenced in cases where political leaders are concerned.
Continuing with the matter of judicial review, Tocqueville’s seventh chapter deals with cases in which the separation of powers—political jurisdiction—must sometimes be suspended in times of crisis. Less-free countries have no such worry, since, as he notes, “the prince, in whose name the accused is prosecuted, is master of the courts as of everything else”; absolute power over the political arena includes the judicial arena as well (179). What Tocqueville is referring to specifically are cases in which the legislative bodies bring charges against public officials. “The representatives denounce the guilty party”, he writes, while “the Senate punishes him” (180). However, the extent of such punishments goes only to the point of the guilty party’s public office; criminal and civil offenses are tried in the courts of law. He explains:
“The principle aim of political jurisdiction in the United States is, therefore, to withdraw power from someone who is making poor use of it, and to prevent the same citizen from being vested with power in the future. That, as we see, is an administrative act that has ben given the solemnity of a judgement.” (181)
In Europe, the difference is striking: the free governments of Europe seek above all to punish the wrongdoers, rather than to maintain the rule of law. As such, Tocqueville notes, the organization of such political jurisdiction takes on a more judicial flavor; the legislators become magistrates given temporarily the powers of a judge, and the trial is commenced as a fundamentally judicial ruling rather than an administrative one under the dignity of judicial fiat. The difference is where the priorities lay; in Europe, the priority is punishment, while in America, the priority is the stability of the government.
He notes that Europeans, due to the extent to which political trials can be judged, are generally not as quick to use the political courts as their American counterparts. “In Europe,” Tocqueville states, “the political courts are vested with terrible rights that sometimes they do not know how to use; and it happens that they do not punish for fear of punishing too much” whereas Americans typically “do not back away from a penalty that humanity does not bemoan” (184). Tocqueville notes that this distinction between the European and American methods of pursuing political injustice is somewhat unprecedented, as they have “avoided the most horrible consequences of a legislative tyranny, rather than tyranny itself” (185). He concludes this brief chapter with a somewhat ominous statement:
“When the American republics begin to degenerate, I believe that it will be easy to recognize; it will be enough to see if the number of cases of political jurisdiction increases.” (185)