Due to the length of chapter eight, summary and discourse on its contents has been given its own chapter in this guide. It concerns the federal constitution and the general composition of the American federal system.
Chapter 8 – Of the Federal Constitution
Finally, at about page 186, Tocqueville gets to what we modern Americans probably thought the book was going to be about on page one: the democratic order of the American federal government. He reiterates that, until this chapter, he has been concerned with explaining and detailing the structure of the social and governmental apparatuses that keep the government and people stable.
In following with his previous pattern of explanations, Tocqueville begins his analysis of the government with a look at how it developed and where it came from.
Historical Background and General Organization
Tocqueville reiterates his earlier statement that “[l]aws act only in two ways, either by their long duration, when a power superior to society manages to impose them over many years, or by their perfect harmony with the mores, habits and civilization of a people” (187). With this, he sets up the first section of his work on the structure of the government, being key to note—at least in the margins—of the United States administrative and legislative body as a national—albeit limited—rather than specifically federal government. The key difference being the degree to which it was sovereign over the people it presided.
He continues by elaborating on that point. The revolution necessitated the colonies banding together and seceding as a single force under which sovereignty was united; they had one flag and fought with one unifying military power. However, as the flawed Articles of Confederation made clear, when the war ended, these individual states claimed direct and total sovereignty of the people for their own mutual benefit, the dismantling much if not all of this national unity, and throwing the early government into chaos. “If ever America was capable of rising for a few moments to the high level of glory that the proud imagination of its inhabitants would like constantly to show us,” Tocqueville wryly comments, “it was at this supreme moment when the national power had, in a way, just abdicated authority” (189).
Amusingly, Tocqueville expands on the tone of his comment by comparing the American revolutionary spirit with the Frenchman’s of a few years before. On a somewhat indignant note, he reminds his readers of the 1300 leagues of ocean that separate England from America, the lack of commitment shown on the part of the English to keep their colonies, and the ease with which America found allies in the struggle compared with France’s revolutionary hardship. The Americans, he says, had it easy.
He goes on to briefly address the uniqueness of the combination of minds at the beginning of the American experiment, referring to the Founding Fathers and the drafting of the second American Constitution—the one we know of today. From there, Tocqueville addresses the Constitution itself, stating that it answered “a question of sharing sovereignty in such a way that different states that formed the Union continued to govern themselves in everything that related only to their internal prosperity,” while at the same time, “the whole nation, represented by the Union, did not cease to be a body and to provide for all its general needs” (191). The basic gist being what all Americans should have learned in their High School American Government courses: Amendment X of the Bill of Rights—The powers not delegated to the United States by the Constitution, nor prohibited by the states, are reserved to the states respectively, or to the people. It’s arguably the second most important amendment of the Constitution, and the basis upon which the principle of popular sovereignty was based. And, as a result, Tocqueville points out that this establishes and defines what was once the conflict at the heart of the American order: the national government of the Union and the local government of any given state.
Beginning with the obvious points, Tocqueville lays out the important parts of what a such a national government would need to encompass—the ability to field an army, to present a single face and representative to foreign governments, to determine the value of money, deliver mail, establish communication within its own territory, and to expand that territory. It was given, originally, little to no ability to peer into the internal workings of the state governments and domestic affairs therein, as it was tasked, much like the state governments were tasked at their own levels, with managing the affairs of interstate communication and, to a lesser degree, commerce. “When you pay attention to the division of powers as the federal constitution has established it;” Tocqueville begins,
“when, on the one hand, you examine the portion of sovereignty that the particular states have reserved to themselves and, on the other, the share of power that the Union took, it is easily discovered that the federal law-makers had formed very clear and very sound ideas about what I earlier called centralization.” (194)
He notes that although the national body is organized as a republic and confederacy, the national authority is still even more centralized in certain respects than the absolute monarchies of old. He mentions how France had thirteen different sovereign courts which held the power to interpret the law as they saw fit, in addition to certain provinces that could refuse authoritative fiat on tax hikes by the King. By contrast, the United States has only one judicial body and a single legislature to make laws and tax hikes. Changes are voted upon by representatives but are binding to all of their jurisdictions. While this vests a greater amount of legal and financial power in the United States government than it does in the French government, the United States remains—at the time—a collection of confederated republics.
Tocqueville lists Spain as a second example, inasmuch as individual Spanish provinces had the ability to regulate their own customs system, which in effect undermines the national sovereignty of Spanish borders. In the United States, however, only congress can regulate the commerce between the individual states; states themselves do not have the freedom to regulate interstate commerce themselves.
Legislative and Administrative Powers
In the creation of the legislative bodies, Tocqueville outlines the difficulty in balancing the formation of a single nation and the formation of a league of independent states. The two seemingly irreconcilable systems were simply a matter of sovereignty: does the national government represent the will of an entire people—as in a nation—or the will of its confederated states? A compromise was reached, he says, in which “[t]he principle of the independence of the states triumphed in the formation of the Senate;” while the “dogma of national sovereignty, in the composition of the House of Representatives” (197).
Tocqueville makes clear that the states did not form obvious coalitions within the government; they did not band together to attempt overturning any sort of will present in the larger states. He writes,
“All the states are young; they are near each other; they have homogenous mores, ideas, and needs; the difference that results from their greater or lesser size is not sufficient to give them strongly opposed interests. So the small states have never been seen to join together in the Senate against the plans of the large. There is, moreover, such an irresistible force in the legal expression of the will of an entire people that, when the majority expresses itself in the organ of the House of Representatives, the Senate, facing it, finds itself quite weak.” (199)
At the time of Tocqueville’s writing, this general unity of the American people is as believable as it probably was self-evident. As the country has grown in size, in population, and in ethnic diversity, however, this general observation about the interests of the states being more or less similar to each other doesn’t hold as much water. Additionally, the break-up of the Union and the subsequent destruction of various aspects of the ground-up democratic social state of the country in the 1860s seems to have done irreparable damage to the general consensus of the states’ shared interests. Only a sort of pseudo-consensus lives on, in large part from the national level downwards, and the cracks in its veneer are becoming more and more obvious by the decade.
Tocqueville makes a couple final notes on the nature of the legislative bodies, but refers here only to their powers. As most civics and government classes should still teach in high school, the House and Senate differ as positions by the length of their durations, but additionally, at the time of Tocqueville’s writing, by who elected them. Representatives to the House were always elected by the constituents of the state, and in numbers proportional to the state’s population. Senators, however, were elected by the state’s legislators. This was changed in 1913, after nearly a century of somewhat contentious senatorial dramas and rulings.
From here, Tocqueville goes on to address the executive and administrative seat: presidency. He does note that “[c]are was taken not to subordinate his will to those of a council” explaining how such an act would be a “dangerous measure” which “weakens the accountability of those who govern” (202). Additionally, he says, the Senate has the ability to strike down actions of the President, but never to force him into action. As a countermeasure, the President has veto powers over all legislative action, even while legislative bodies can override the veto. Veto powers force the legislature to “retrace its steps,” he writes; it is “a kind of appeal to the people; the executive power pleads its cause and makes its reasons heard. Without this guarantee, it could be opposed in secret” (203).
This leads into his next section, which is a look at the differences between the President of the American system and the Kingship of France. Of foremost difference, Tocqueville defines the presidency as chiefly an executor of the country’s sovereign power, echoing the definition found in the founding American documents, whereas the King is himself a part of the sovereign power and not merely its executor. Tocqueville explains:
“The President also executes the law, but he does not really take part in making the law, since, by refusing his consent, he cannot prevent it from existing. So he is not part of the sovereign power; he is only its agent.
Not only does the King, in France, constitute one portion of the sovereign power, but he also participates in the formation of the legislature, which is the other portion. He participates in naming the members of one chamber and by ending at his will the term of the mandate of the other. The President of the United States takes no part in the composition of the legislative body and cannot dissolve it.” (206)
The French King, although technically a constitutional monarch by Tocqueville’s writing, remained more or less absolute in his ability to define the legislative body, legislate laws of his own making, and execute those laws. The American President, by contrast, was originally defined as being nearly powerless; his authority extended to being a check on legislative power, and a vessel into which leadership traits could be poured—primarily for military and foreign affairs.
Tocqueville explains then that, at the time of his writing, the aspects of the military and foreign affairs are quite minimal with relation to America’s overall situation. The country’s standing army numbered only around six thousand men, and its navy comprised only a few vessels. Meanwhile, it had no immediate neighbors of note, and due to the oceans it bordered, it was rare for its interests abroad to come into contact with other foreign bodies. “The laws allow him to be strong;” Tocqueville says of the President’s authority over these spheres, but “circumstances keep him weak” (209).
On this note, he also mentions the distinction between the King’s relationship with his legislature in Europe versus the President’s in America. In Europe, the King requires the support of his legislature in order to act: “the care of [the law’s] execution so completely devolves onto him that, if the law is against him, he would be able to paralyze its force. He needs the chambers to make the law; the chambers need him to execute it; they are two powers that cannot live without each other” (210). The President, however, “cannot stop the making of laws; he cannot escape the obligation to execute them” (210). Tocqueville explains how it is his “weakness, and not his strength, that allows him to live in opposition to the legislative power” (210).
Election and Reelection of the President
Fittingly, Tocqueville follows his explications of the governmental structure with the election of the President. He begins with a quote that, in modern times, seems quaint:
“It is clear that the greater the prerogatives of the executive power, the greater the lure; also, the more ambition of the pretenders is excited, the more it finds support among a host of men of lesser ambition who hope to share power after their candidate has triumphed.” (211)
The seemingly unending election of presidents with more and more authority at their disposal renders such an observation self-evident today. Although in the past, presidential powers were, as Tocqueville mentioned earlier, somewhat limited due to the logistics and scope of the entire American experiment at the time, today’s worldwide American empire has not suffered such limitations for a few generations. The growth of executive power, coupled with the growth of the administrative state, may be directly attributed to the nature of the Constitution. But he continues: “the dangers of the elective system increase therefore in direct proportion to the influence exercised by the executive power in the affairs of the State” (212).
And Tocqueville’s warning has been made a reality. Notice how he speaks of the Presidential office’s ability to dispense favor and fortune in the early nineteenth century:
“No candidate, until now, has been able to raise ardent sympathies and dangerous popular passions in his favor. The reason is simple. Once at the head of the government, he can distribute to his friends neither much power, nor much wealth, nor much glory; and his influence in the State is too weak for factions to see their success or their ruin in his elevation to power.” (212-213)
He contrasts this with hereditary monarchies, in which the interests of the ruling family are tied directly to the interests of the State, and although public interest may not be as well represented, there is still a stabilizing element to be found in the monarchy’s mere existence, and the public interest can usually be expressed in a parliamentary setting. Purely elective States, however, end up going into disarray upon election season. Tocqueville references a letter from Thomas Jefferson during his last weeks in office, in which Jefferson states his general disinclination to participate in public affairs in the interest of letting his successor inherit the responsibilities of the office.
Essentially, as the executive authority becomes greater, the results of any given election become more profoundly disturbing to the order established by the previous administration. The men who end up seeking that highest office are cut from the cloth that is woven by the very natures of the people invested with the authority of the land. As the office is corrupted, so too will the candidates be who seek to wield that power.
That said, what concerns Tocqueville here even more is the instability built into non-hereditary governmental systems. Rome, he explains, maintained a fair degree of political stability because, although the consuls changed regularly, the Senate remained both the primary legislative source as well as a hereditary body. The United States has no such stability. Although the formation of career politicians was certainly conceivable in Tocqueville’s time, even such politicians would only be serving for forty or fifty years—hardly the centuries of political cohesiveness and vision that older systems stood testament to. And even in cases of career politicians serving for the entirety of their lives, the positions they serve frequently change; no administration lasts longer than eight years, and every administration features a turnover of the previous executive’s staff. In effect, Tocqueville says, America faces a soft regime change every time there’s a Presidential election.
And yet, “the role of executive power is as limited by circumstances as by laws”, Tocqueville repeats, explaining that “[t]he President can frequently change his views without having the State suffer or perish” (218). This is because, he is quick to mention, the threat of foreign invaders to American soil is so low. Although elections and their immediate aftermath should rightly be considered “period[s] of national crisis”, the truth of the matter is that in Tocqueville’s time, America’s relationship with the rest of the world remained, for the most part, isolationist: “you would almost be able to say that no one needs them, and that they need no one. Their independence is never threatened” (218). When the independence of a country is not sufficiently threatened, then throwing the political strata into the grinder for a few months while it sorts out a regime change is no particularly big deal.
Again, how times have changed. Compare this with any recent election and you’ll find just how much the administrative state’s size and utility has shielded the country from the sort of foreign crises Tocqueville fears during election seasons. While our elections may seem like crises in and of themselves—and their immediate aftermaths are often plagued with the distrust and purging of the previous administration’s people—they have never been such crises that a foreign power has been able to leverage their threats against the American people directly.
In explaining the election process, Tocqueville mentions the difficulties in the democratic process with regard to reaching a majority vote. The simple majority would not represent the will of the people to a degree feasible enough for executive power to be legitimate, so the American system slimmed down the number of people involved in forming that consensus. This is the basis for the Electoral College, and it is important to note that this college of persons is distinct from the elected body of legislative officials in the congress and senate. The relative anonymity of electors, coupled with the term lengths of the legislative bodies, made for a stronger guarantee of preserving the will of the people who were represented by that elector. He writes:
“[Americans] judged that, if the legislature was charged with electing the head of the executive power, its members would become, long before the election, the objects of corrupting maneuvers and the playthings of intrigue; while the special electors, like jurors, would remain unknown in the crowd until the day when they must act and would only appear at one moment to deliver their decision.” (220)
Obviously, the possibility of corruption weighed heavily on the minds of the early American founders, as did the recognition that representatives are still men prone to servicing their immediate needs. There is a very distinct difference between the legislator elected to ensure the will of the people is maintained in the creation of laws and the elector sent merely to cast a ballot in the name of his jurisdiction. Since that ballot decides who the executor of those laws is going to be, it’s sensible that the legislative authority should be kept at arm’s length from that process.
He goes on to outline the election backup plans should elections get too dicey to proceed along the normal path. In elections too close to call, replacements for electors can be requested, the Senatorial president may be involved in counting the votes, and in extreme cases, where even the replaced electors are unable to fulfill a majority for any candidate, the House of Representatives is used as a fall back to vote on any one of the three candidates who receives the most votes. Tocqueville notes that only twice has that occurred within the first twelve presidential elections: first in 1801 and then again in 1825.
Tocqueville continues on to look at the reelection of the Presidential office, making specific note of both the strengths and the weaknesses in the system that reelection poses. Denying reelection of magistrates who have held the position once already means denying the very people who are the most knowledgeable of the responsibility that position entails. And yet, the very nature of reelecting politicians means putting an undue partisan burden on those who hold the offices and are seeking to maintain power. In any case where “reprehensible maneuverings” are used to gain more political power by the executive in office, “concern for the government becomes, for him, something of a secondary interest” (227). The filling of advisory positions, governmental favors, and the twisting of the administration of law end up being used as negotiating tactics for his reelection rather than in service to the common prosperity of the country.
He continues in similar vein, explaining how the road to destruction in absolute monarchies was the tendency of authority to horde and expand as much power as is logistically feasible. Likewise, democratic regimes suffer the same fundamental problem, but on a much larger scale due to the inclusivity of political action granted by the elective process. Americans, Tocqueville writes, saw these faults and navigated a pathway through those tendencies with the complex system of checks across the local, state, and federal levels, but the admittance of an executive reelection process undermines much of that work. Tocqueville notes how, in the pursuit of reelection, and being subject to the partisan will of the parties who make him into an ideologue, the independence of the executor to act according to the just application of laws gets very easily hamstrung.
He concludes his section on the election process with a note that, in seemingly typical Tocquevillean prescience, touches upon the state of modern American politics:
“Not re-eligible, the President is not independent of the people, for he did not cease being responsible to them; but the favor of the people was not so necessary to him that he had to bend in all cases to their will.
Re-eligible (and this is true above all in our time when political morality is becoming lax and when men of great character are disappearing), the President of the United States is only a docile instrument in the hands of the majority. He loves what it loves, hates what it hates; he flies ahead of its will, anticipates its complaints, bends before its slightest desires. The law-makers wanted him to lead the majority, and he follows it.” (229)
And so we get to the judicial system at the federal level. The courts, he believes, are one of only two manners in which a government can maintain control over the people it governs; the other is through the sheer force of its military. However, the legitimacy of the courts relies upon the “moral force that the decisions of the courts bestow” (230). “The great object of justice”, Tocqueville writes, “is to substitute the idea of law for that of violence; to place intermediaries between the government and the use of physical force” (231). Such a distinction between the law and force is an important distinction that defines much of Tocqueville’s thought, and, in fact, makes coherent any definition of justice that can be considered valid. It’s important to pause and reflect on how far modern systems of political thought of strayed from such a simple distinction.
Tocqueville notes that at its genesis, both the first and the second Constitutions already had in place the court systems of the individual states, and specifically the supreme courts of those states. However, at the time of Tocqueville’s writings, he mentions twenty four individual supreme courts—“How to accept that a State can endure when its fundamental laws can be interpreted and applied in twenty-four different ways at once!” he remarks (233). Naturally, a federal solution was required for federal laws.
This solution—the United States Supreme Court—created a greater check of federal authority against the sovereignty of the individual states. Any given state “thus found itself limited not only by the laws” of the federal legislature, “but also by the interpretation of the laws; by a known limit and by another that was unknown; by a fixed rule and an arbitrary one” (236). The impact of this has made itself known again and again throughout American history and politics; most recently, court decisions on same-sex marriage and donations to political campaigns by corporations have impacted the sovereignty of a state’s people by overturning state-level laws according to the decisions of nine justices.
Yet, Tocqueville remains optimistic. He writes immediately afterward that “in America, real strength resides more in the provincial governments than in the federal government”, and that “[f]ederal judges sense the relative weakness of the power in whose name they act; and they are more likely to abandon a right of jurisdiction in cases where it is granted to them by law, than they are led to claim it illegally” (236). But as we have seen already, the United States political framework was recognizably different than the one that exists today.
He continues by mentioning several examples of cases that federal courts would typically preside over: cases involving two state governments as litigants, cases in which maritime law was involved, cases in which federal laws were involved, and cases involving international commerce such as tariff disputes. Tocqueville is key to point out that, although the states represented distinct sovereign polities, the United States’ Constitution was written with the intention that the union of these states represented a single people of a single American culture. This is important to note within the context of the federal court system because the conflicts between states do not imply a conflict between different peoples, only different polities. The principle of inter-county jurisdiction placed in the hands of state courts remains the same with regard to inter-state jurisdiction and the federal courts.
Tocqueville uses this to help explain the exact relationship between the federal court system and state governments. The federal judicial system, he writes, in countries organized politically as the United States is, “often finds itself facing, not an isolated individual, but a fraction of the nation. Its moral power and physical power are diminished as a result” (241-242). He continues by explaining how the judicial system would rather face off against individuals than collections of peoples, since individuals are much easier to subdue in the court of law than a group of them—much less an entire state. However, in the American system, the federal courts do not have the power to directly attack individuals. Instead, individuals can appeal to the federal court system in cases where states have transgressed federal regulations. The federal court can find state governments in the wrong by attacking specific instances and relying on precedents rather than attacking the fundamental principles of whatever law has been brought into question before the court. The reason for such distinction is that any body which attacks the fundamental principle thus undermines the governing ability of the state involved, as it calls into question the state’s competency—additionally, due to the organization of the entire American polity from the ground up, the federal court’s willingness to attack the state government on such broad grounds implies a failure of political and jurisdictional cohesiveness in the Union.
Tocqueville concludes his analysis of the federal court system with a brief look at the Supreme Court itself. Comprised of, at the time, seven justices instead of nine, the Supreme Court remains the highest in the land and at the top of the judicial order. As such, Tocqueville makes note of the scope of the responsibility that the litigants of any given case brought before the Supreme Court must bear. Additionally, and more importantly, he notes wisely the extent to which the justices are important vessels of governance themselves. He writes:
“The President can fail without having the State suffer, because the President has only a limited duty. Congress can go astray without having the Union perish, because above Congress resides the electoral body that can change the spirit of Congress by changing its members. But if imprudent or corrupt men ever come to compose the Supreme Court, the confederation would have to fear anarchy or civil war.” (245-246)
The constitution of a federated polity operates according to an administratively de-centralized principle. As such, the judicial power that regulates this polity must be imbued with significant power in order to keep the polity together as a single and distinct union, lest either the union be ripped apart by individual differences or the union be homogenized beyond recognition and quashed beneath totalitarian administration. It is for this such reason that Tocqueville places such an emphasis on the importance of both the Supreme Court justices and, in fact, upon all judges at all levels of the federal court system. It is not due to the structure of the American Constitution per se that has made the courts so powerful; it is because of the very nature of confederated republics.
The American Constitution and Federalism in General
The federal Constitution, Tocqueville remarks, differs from the state constitutions by its purpose, but remains generally similar to those constitutions by the means with which it governs. It is, however, superior to them not only in substance and scope but in form. He elaborates by reminding the reader that the formulation of the US Constitution came as a result of the disintegration of national order under the Articles of Confederation, and that the chaos of that time necessitated the formulation of a stronger union.
The conflicting natures of various institutions at state and national levels concern Tocqueville the most. He compares the powerlessness of governors over the electorate and legislature with the President’s, in addition to the somewhat muddled handling of imposing term limits and salary qualifications on judges at the state level versus the mechanisms for judicial objectivity at the federal level. In both instances, the state level is more tied to the legislature and to the democratic polity, whereas the federal level tends to be more balanced.
“Two principle dangers menace the existing democracies”, he writes:
“The complete subservience of the legislative power to the will of the electoral body.
The concentration, in the legislative power, of all other powers of government.
The law-makers of the states favored the development of these dangers. The law-makers of the Union did what they could to make them less to be feared.” (250)
Next, Tocqueville explains the key differences between the American Constitution and those of previous and previously existing constitutions around the West. In essence, it draws from other republics the same fundamental rights to rule and govern and is imposed by the same responsibilities as those other constitutions—he cites Switzerland, Germany, and the Netherlands as examples—but how this governance is carried out is of radically different method. The people of those republics “agreed to obey the injunctions of a federal government; but they retained the right to command and to supervise the execution of the laws of the Union at home”, he writes, whereas Americans “agreed not only that the federal government could dictate laws to them, but also that the federal government itself would execute those laws” (252). The acknowledgement of a federal legislative power remained the same; it was execution that varied.
Because the federal government of the United States can impose directly upon the citizens the laws of the country, it bypasses the mode in which previous confederations usually had contentions. As discussed earlier with regard to the judicial systems, states are checks against federal incursion inasmuch as their power over the citizens is generally stronger than the federal government’s is, but the federal government’s reach is only questioned when a specific conflict between the individual and the law—state or federal—is brought before the courts.
Tocqueville is quick to note how the size of the nation plays into its self-governance. Smaller nations tend to be better focused on internal affairs and “are not likely to be wasted on the empty illusion of glory”; he writes that “[t]he mediocrity of wealth makes conditions nearly equal” which, in combination with the shared mores and values of the people, mean that “more comfort, population and tranquility are usually found in smaller nations than in large ones” (256). However, for the same reason, tyranny in small nations quickly turns into totalitarianism. He goes on to remark that “[a]ll passions fatal to republics grow with the extent of their territory, while the virtues that serve to support them do not increase in the same measure” (257). His following statements deserve to be quoted at length:
“The ambition of individuals increases with the power of the State; the strength of parties, with the importance of the end that they have in mind; but love of country, which must combat these destructive passions, is not stronger in a vast republic than in a small one. It would even be easy to prove that love of country there is less developed and less powerful. Great riches and profound poverty, large cities, depravity of mores, individual egoism, complexity of interests are so many perils that almost always result from the large size of the State. Several of these things do not harm the existence of a monarchy; some can even work toward its duration. In monarchies, moreover, government has a strength of its own; it makes use of the people and does not depend on them; the more numerous the people, the stronger the prince.” (257)
Republics, as they grow in size, grow too in population diversity, which adds again to the difficulty in coming to compact political majority even though by proportion relative to the legislature, very little may have changed. Meanwhile, the pull of so large a political class required to maintain a large republic enables the politicization of normal life: “political passions become irresistible, not only because the objective that they pursue is immense, but also because millions of men experience those political passions in the same way and at the same moment” (258). Tocqueville uses mob mentality as an example of such passions, extrapolating it upwards several-fold into the political sphere.
But he continues to note that large States do have distinct advantages. Passions, ambitions, and drives for power, glory, and praise among men is more pronounced, and as a result, various institutions find greater development in larger nations than in smaller ones. Larger cities generally become centers not just of commerce and trade, but of intellectualism and culture. Large countries are more often than not the drivers of history and the producers of great men, whereas smaller countries typically are of little importance to the world at large.
War, too, poses different issues for smaller and larger nations. It is a cause usually for ruin of smaller States, while large countries can afford the cost of war both in men, equipment, and commerce. As the nation grows in size, the detriment of war shrinks from ruinous to inconvenient.
For these various reasons, Tocqueville concludes that the strength of any given nation correlates to the stability and happiness of that nation’s people. Security can be guaranteed by strength, and strength is assured by the stability, the size, and the cohesiveness of the country. “The federal system”, he writes, “has been created to unite the various advantages that result from the large and small sizes of nations” (260).
Tocqueville explains how large centralized nations tend to have problems legislating laws that both directly and positively affect the citizens of that country, due to the universality of those laws and the general lack of assemblies beneath the national body to mitigate based on circumstances and locality. Confederacies, such as this early American republic, supplied both, but at the expense of the centralized nature of the national legislature. The Congress of the American Union makes laws based on generalized principles, and then it is up to the state and local governments to apply those laws in ways consistent with the national policy.
He goes on to examine and explain how the nature of American order is, in large part, invisible, elaborating on points he made in the previous chapters with regard to the decentralized administrative state and the somewhat incomprehensible organization of executive powers. This is possible only because of the astuteness of the citizenry to maintain and uphold a few very basic beliefs: liberty and a respect for order. By basing the government on easily-understood premises, Tocqueville believes, the government is made stronger, as it reflects the will of the local polities over which it presides. He writes:
“[W]hen you examine the Constitution of the United States, the most perfect of all known federal constitutions, you are alarmed by the many varieties of knowledge and by the discernment that it assumes among those whom it must govern. The government of the Union rests almost entirely on legal fictions. The Union is an ideal nation that exists only in the mind so to speak; intelligence alone reveals its extent and its limits.” (265)
The Constitution is made sensible only upon the reflection of its contents, and it is enforced and upheld by the already-engrained American ethos. With morals guided by the pursuit and maintenance of liberty, the unitary order of the American republic sustains itself without the need for bureaucrats rubberstamping volumes of regulations or magistrates on every corner approving basic transactions among the people. Common sense and shared values keep the union together, and the Constitution, the federal administration, and the national legislature are all structured so as to work in line with them.
This notion is illustrated by his comparison to Mexico, in which the American Constitution was effectively imported in its entirety, but the nature of the Mexican people—their cultural background and history—made American-style federalism incongruent and cumbersome. The jurisdictions of federal and local powers were unable to stay restrained to their own spheres. “The sovereignty of the states and that of the Union, leaving the circle that the constitution had drawn, penetrate each other daily”, Tocqueville writes of Mexico; “[s]till today, Mexico is constantly dragged from anarchy to military despotism, and from military despotism to anarchy” (266).
The distinction between the federal and state governments, Tocqueville says, is best explained as such: the sovereignty of the states arises naturally from the culture that America was forged in. The sovereignty of the federal union, however, had to be constructed and maintained through the complex system of legal checks and balances. He calls the American federal system a work of art, but warns that the system “cannot exist for long if, among the peoples to whom it applies, a certain number of conditions for union are not found that make this common life easy for them and facilitate the task of government” (270). One of the conditions is, in addition to a shared general ethos, a homogeneity of peoples. Switzerland, he explains, remains a national polity largely only on paper: “[t]he civilization of a canton in Vaud compared with that of a canton in Uri is like the XIXth century compared to the XVth; so Switzerland has never truly had a federal government” (270). Although peaceful and stable, the ethnically homogenous individual cantons of Switzerland were never able to form a strong centralized union due to the diversity of ethnicities across the whole nation. This sort of homogeneity is crucial to the stability and maintenance of a politically centralized republic. As he explains:
“if, among confederated peoples, you want to create a common existence and a true national government, it is absolutely necessary that their civilization be homogenous in nature. This necessity makes itself felt even much more in confederations than in monarchies, because in order to be obeyed, the government has much more need for the support of the governed in the first than in the second.” (271)
Although he does not specify ethnic homogeneity per se, the reality of homogeneity of ideas, work ethic, culture, creeds, virtues, and morals all tend to point toward that conclusion anyway. When members of a community distinct from the republic seek to join it as citizenry, no matter what their background, they must assimilate fully and thoroughly before homogeneity is secured again. This often takes several generations of active effort on the part of those who seek to assimilate. Anything less results in the eventual breakdown of the republic.
The last subject Tocqueville covers in this chapter concerns war and the mobilization of armies at the federal level. This too plays into the circumstances that allow its confederated republic to thrive. He explains that the general inability of the federal government to mount a standing army, pushed on by the unwillingness of the states to allow the creation of such an army to remain standing outside of wartime, severely hamstrings the national ability to properly defend itself. He cites the war of 1812 as a good example, in which the state militias were ordered into action both by their governors and by the President—and yet, certain states refused to mobilize their militias beyond the borders of their sovereignty. The war was fought back and American sovereignty was not, ultimately, threatened in any significant way, but the magnitude of the war that was fought on American soil was, as Tocqueville explains, barely significant. “Even that of 1812,” he writes, “which Americans speak about with such pride, was nothing compared to the smallest of those that the ambition of Louis XIV or the French Revolution brought about in Europe” (275).
In other words, American republicanism has been stable through Tocqueville’s time because it lacked significant military threats. As Tocqueville points out, the inherent vice of federalized governments is their weakness, not only in maintaining homogeneity of a populous, but also of convincing its populous to field a national defense. America certainly found ways around the latter problem, but at the expense of an almost entirely decentralized administrative state. Now, of course, the nation—with respect to these two issues—is entirely unrecognizable; our military patrols the world and the degree of ethnic and cultural diversity inside our borders may threaten to balkanize us.
With this, Tocqueville ends his direct analysis of how the political order’s framework within the United States is organized. It is the conclusion of Part I, having looked at the historical roots of the American order, its organization from the local polities up to the national government, and the social state of the people that it governs.