Chapter 6: Judicial Power in the United States and its Effect on Political Society
There are three general characteristics of judicial power: its role is to act as arbitrator, it rules on particular cases rather than general principles, and it can only act when called upon. American's do hold to these principles, but the judges there have an unusual amount of political power. The reason is that the courts can base decisions of the constitution, allowing them to override some laws.
In America, the constitution is changeable, but it is "the fount of all authority." The court power is checked by legislative ability to amend the constitution. Also, judges can only attack the law by refusing to apply. This action reduces a law's moral force, but only the legislature can repeal the law. The power of judicial review is one of the best barriers against tyranny of political assemblies. Additionally, the courts hold public officials accountable for their actions, because all officials are responsible before the courts.
The courts are a great safeguard of that menace to freedom which Tocqueville at least alludes to in nearly every chapter: the tyranny of the majority. The reason is that the courts are in some ways a-political (the judges are appointed and have very long terms in office) and do not have to bow constantly to the whims of the electorate as politicians do.
Chapter 7: Political Jurisdiction in the United States
Sometimes it is necessary for the political representatives to have judicial power. In the United States, the House of Representatives has the right to prosecute and the Senate has the right to punish. The House must initiate the proceedings, and only public officials can be judged in this sort of trial
The United States differs from Europe in that political courts only have the power to remove from office, not to punish under criminal law. In Europe the political judgment is more of a judicial act, but in the United States it is more of an administrative measure. The reason is that in the United States, the main aim of political jurisdiction is to take power away from those who abuse it.
In Europe political jurisdiction is used only in extreme situations, because it clearly violates the division of power. In the United States, it is less of a danger to the division of power, and is used more frequently.
The laws regarding political crimes are extremely vague in America. This vagueness, combined with the mildness of the Senate's power to punish, makes political jurisdiction easier to use and thus more influential. The American system guards against a high degree of legislative tyranny, but makes mild legislative tyranny more likely.
In this chapter one finds that, once again, Tocqueville's main concern is the tyranny of the majority. He sees that in the American system, the power of political jurisdiction does not extend to imposing penalties, making it rather mild. However, this mildness can itself be a danger, because there is less hesitancy to use the power. The system guards against harsh tyranny, but makes soft tyranny of the legislative branchwhich is most closely tied to the majoritymuch more likely.
Chapter 8: The Federal Constitution
History of the Federal Constitution
After the Revolution, the thirteen colonies were torn by common interests which made them desire both unity and state autonomy. The first constitution, the Articles of Confederation, condemned the federal government to weakness. It is extraordinary that no bloodshed was necessary to remedy the problem. One of the great advantages the Americans had was that the leaders of the Revolution were still alive to draft the new constitution, and these were men of great intelligence and character.
Summary of the Federal Constitution
To resolve the problem of dividing powers between the federal government and states, the lawgivers carefully defined the federal powers and gave all other power to the state. In order to arbitrate disputes about this authority, they created a federal Supreme Court to ensure the maintenance of the proper division of power.
Prerogatives of the Federal Government
The federal government has the exclusive right of making war and peace, concluding commercial treaties, and raising armies. The Union is also responsible for the regulation of currency, the postal service, communication services and taxation. The federal government can intervene in the internal affairs of states in certain rare cases where the state's conduct is endangering the Union. In some respects the United States federal government has more power than European monarchies.
The creation of the House of Representatives and the Senate was a compromise between large and small states, as well as between the principle of state independence and the principle of the sovereignty of the people. "The principle of state independence prevailed in the shaping of the Senate, the dogma of national sovereignty in the composition of the House of Representatives." Because of the system's design, a minority of the nation dominant in the Senate could block the will of the majority represented in the House. For the most part, however, this does not happen.
Another Difference Between the Senate and the House of Representative
Members of the House are elected directly, while senators are elected by the state legislatures. Representatives serve two-year terms, and senators serve six-year terms. Treaties must be ratified by the Senate.
The Executive Power
In order to make the President powerful enough to be effective yet not too powerful, the legislatures cannot act directly to counter executive power, but they can supervise the President's actions in many ways. The Senate has to approve of presidential appointments and treaties with foreign powers. In addition, Congress could enact laws that would encroach on presidential power. The President has veto power, but the legislature can still overturn a veto with a two-thirds majority.
How the Position of the President of the United States Differs From That of a Constitutional King in France
External signs of power are unimportant and deceptive. Because the government in the United States is federaldivided between the Union and the Statesnot national, power of the executive is limited. The President has no real legislative power, as a monarch does, but only executes the law. The President cannot choose the members of the legislative body and he cannot dissolve it.
The King of France is equal in power to the legislature, but the President of the United States has less power than the legislature. The President's executive actions are under supervision and he is answerable to the Congress for his actions. In both the United States and France, the real directing power is public opinion.
Accidental Causes That May Increase the Influence of the Executive Power
Circumstances have kept the exercise of the executive power weak. The executive power shows itself mainly in foreign relations and especially in times of international crises.
Why the President of the United States Has No Need, in Order to Direct Affairs, of a Majority in the Two Houses
The reason that the executive power can act without the support of the legislature is that he is obliged to execute the laws in spite of his disagreement, and there is little the he does independently. As a result, the government still functions when there is division between the President and the Legislature.
Election of the President
The elective system for executive power is always dangerous because of the tendency for people to want to gain power at all costs. The dangers are greater in proportion to the amount of power the executive has. In the United States, there is little danger because the executive power is so weak, and the term of power is relatively short. One of the problems of the system in elective states is that when an election is approaching, the outgoing President has no incentive to do anything new, and the whole nation is focused only on the election, not actually on present governance. When a new President is elected there is always a period of instability. Yet since the powers of the executive are relatively small, this problem is not fatal.
The President has complete freedom to choose his ministers, with the supervision of the Senate. This system can be a hardship for ministers, since power changes hands every four years. However, this difficulty is not so bad because it is fairly easy for former ministers to find other positions.
The more perilous a nation's position in foreign affairs, the more necessary it is to have a stable executive power, and the more dangerous the elective system becomes to the national security. Fortunately for America, it is relatively isolated from the rest of the world and is not threatened externally.
Mode of Election
The aim of American lawgivers was to find a mode of election which expressed the will of the people, by simple majority, without fear of delays in tabulating the votes or in gaining a simple majority. For this reason, the electoral powers were delegated, increasing the chance of getting a majority and easing the tabulation. The policy was that each state would nominate a certain number of electors, equal to the number of members it sent to Congress, to elect the President. If none of the candidates obtained a majority in the election, the House would elect the President from among the three candidates who had received the most votes. The United States has only needed to resort to this last measure twice: for the elecion of Jefferson in 1801 and Quincy Adams in 1825.
Crisis of Election
The time of Presidential election can be considered a time of national crisis, because all are completely focused on the election, and factions tend to flare up and become even more passionate than usual in lobbying for their causes. After the decision has been made, however, "the river which momentarily overflowed its banks falls back to its bed," and all is calm once again.
Concerning the Reelection of the President
While at first consideration it seems natural that Presidential reelection ought to be allowed, the practice is dangerous because the President may then make reelection, not caring for the government of the country, his primary consideration. In the United States, the desire for reelection dominates the President's thought. Therefore the principle of reelection increases the corrupting influence of elective governments.
The lawgivers of American were wise in making the President independent of the whims of factions and caprices of the people, while still subject to the general will of the majority. The principle of reelection, however, undermines this independence. Thus the President of the United States is completely under control of the people's whims.
The Federal Courts
To gain the obedience of the governed, governments can either use physical force or moral force. The courts are generally the vehicles through which laws are given moral force. The judiciary needs to be separate from the other powers, but it is still necessary that federal laws be under the jurisdiction of federal, not state, courts, since the states are often in opposition to the federal government. The judicial power of the union was concentrated in the Supreme Court, but other lower federal courts were added to handle issues of lesser importance. The members of the Supreme Court were appointed by the President and approved by the Senate, and they were irremovable to make them independent.
Means of Determining the Competence of the Federal Courts
The Supreme Court was given the power to decide all questions of competence, regarding disputes over whether the case was one of federal or state jurisdiction. This power seems to threaten the sovereignty of the states, but in practice it really does not.
Different Cases of Jurisdiction
The subject matter and the party involved were the two bases of federal competence. For example, cases in which one of the parties is an ambassador automotically fall under federal jurisdiction, as do cases in which the parties are from different states. Some of the cases which automatically fall under federal jurisdiction because of their subject matter are cases dealing with foreign trade or with the constitutionality of a law. The rules determining which courts have jurisdiction in which cases are simply an extension of the principles of federalism in general, giving the central government enough power to be effective and maintain national unity, while allowing the states independence in their own sphere.
Procedure of the Federal Courts
Justice is weaker in federal states because sovereignty is divided. But, with great wisdom, the Constitution arranged matters so that courts deal directly with individual, without the intermediary of the states. When the federal courts want to overturn a state law, they do so indirectly, through suits brought on by individuals who are harmed by the new law. The Supreme Court can also judge disputes between states. It may be difficult, however, to make an entity as powerful as a state submit to the ruling.
High Standing of the Supreme Court Among the Great Authorities in the State
The Supreme Court has higher standing than any court in any country. It is uniquely responsible for the interpretation of laws and treaties and for questions dealing with international law. In addition, unlike courts in Europe, the Supreme Court can try states as well as individuals.
The court's power is immense so long as people respect the law and obey it. The judges therefore need to understand the spirit of the age and the limits of what popular opinion will accept. If the Supreme Court acts rashly, the whole country is threatened. This danger is inherent in the nature of federal government, because it requires a strong judicial authority.
The Superiority of the Federal Constitution Over That of the States
The main cause of the Federal Constitution's superiority is the character of its writers, all of whom were remarkably enlightened and patriotic. Their foremost concern was the preservation of liberty.
Through the representative, bicameral legislative system and especially through the formation of the Senate, they helped to guard against the tyranny of the majority.
Democracies have a tendency to concentrate power in the legislative branch, but such action yields the "despotism of the majority." While the states' constitutions succumbed to this tendency, the Federal Constitution did not.
The executive in the states has almost no power, but in the federal government it has enough power to be effective. The states also fail to give the judiciary its proper independence
The two main dangers that threaten the existence of democracies are (1) "the subjection of the legislative power to the will of the electoral body," and (2) "concentration of all other powers of government into the hands of the legislative power." The states have succumbed to these dangers, but the federal government has not.
What Distinguishes the Federal Constitution of the United States of America from All Other Federal Constitutions
The United States Federal Government is much more powerful than that of European countries with similar constitutions, because the United States Constitution made the federal government in charge of not only dictating but also executing the laws.
The problem in other countries is the confusion of a federal government and an incomplete national government. This was the problem the United States had under the Articles and remedying that problem was what allowed the country to survive.
Advantages of the Federal System in General and Its Special Usefulness in America
Small nations are often a cradle of liberty because they offer little attraction for ambition and despotism. When they become larger such nations tend to lose that liberty. There is no large nation in history which has remained a republic. In large nations there is more ambition to take power, and there is less ability for public resistance.
Large states do, however, have advantages. There tends to be a greater flow of ideas and more intellectual centers. They are more secure in a war. Small nations may be happier but they are too weak to be secure.
The federal system is an attempt to combine the advantages of small and large states. Local liberties provide a perfect education in republican government which can then be applied to the whole nation. The limitation of federal sovereignty also mitigates the ambition for power. "The Union is free and happy like a small nation, glorious and strong like a great one."
Why the Federal System is Not Within Reach of All Nations and Why the Anglo-American's Have Been Able to Adopt It
One of the defects of a federal system is its complication and the tension between state and federal sovereignty. The government of America is only sustainable with a population well-educated in political science.
The second defect is the weakness of the federal government. It is a danger that in a clash between the federal government and a state or between the Supreme Court and a state, the state will refuse to obey. The Union has the power of military and economic force, but the states have more support from the people. For the confederation to last, people must have a fairly homogeneous civilization and common needs.
The weakness of a confederation is shown in war, when, as in the War of 1812, the militia refuses to obey the President. America has not dissolved because it has no great wars to fear.
In examining the United States Constitution, Tocqueville is looking specifically for the ways in which the United States has guarded itself against the ever-present danger of the tyranny of the majority, which can take two forms: (1) "the subjection of the legislative power to the will of the electoral body," or (2) "concentration of all other powers of government into the hands of the legislative power."
The United States has succeeded in protecting itself, at least so far, from the tyranny of the majority mostly through the checks and balances of the system. To avoid the first form of tyranny, a bicameral legislature was formed in which the Senate, while still responsible to the people, has much more independence from popular whims. Avoiding the second form involves both the executive and judicial branches. The President has veto power and control of the military, giving him some ability to check the power of the legislature. Yet Tocqueville recognizes that the legislature is definitely more powerful than the President alone. The judiciary, however, has great ability to prevent Congressional tyranny through its ability to declare certain laws unconstitutional. The judiciary is also extremely independent of popular opinion, allowing it to act without needing to worry about re-election.
One specific provision of the Constitution which worries Tocqueville is the ability for Presidential re-election. He fears this provision because it "makes the corrupting influence of elective governments spread wider and more dangerous. It tends to degrade the political morality of the nation and to substitute craft for patriotism." Allowing the President to be re-elected diminishes his independence from the caprices of the majority. Tocqueville argues that if the President were not reeligible, his responsibility toward the people would not diminish, "but the people's favor would not have been so necessary to him that he must in everything bend to its will."
All things considered, Tocqueville believes that through a combination of Constitutional wisdom, embedded local liberties, and accidental factors such as geography and the composition of the populace, the United States has done a remarkable job in creating a democratic government which is relatively stable and safeguards liberty.