American Institutions And Their Influence

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Granting for an instant that the villages and counties of the
United States would be more usefully governed by a remote
authority, which they had never seen, than by functionaries taken
from the midst of them--admitting, for the sake of argument, that
the country would be more secure, and the resources of society
better employed, if the whole administration centred in a single
arm, still the _political_ advantages which the Americans
derive from their system would induce me to prefer it to the
contrary plan. It profits me but little, after all, that a
vigilant authority protects the tranquillity of my pleasures, and
constantly averts all danger from my path, without my care or my
concern, if the same authority is the absolute mistress of my
liberty and of my life, and if it so monopolises all the energy
of existence, that when it languishes everything languishes
around it, that when it sleeps everything must sleep, that when
it dies the state itself must perish.

In certain countries of Europe the natives consider themselves as
a kind of settlers, indifferent to the fate of the spot upon
which they live. The greatest changes are effected without their
concurrence and (unless chance may have apprised them of the
event) without their knowledge; nay more, the citizen is
unconcerned as to the condition of his village, the police of his
street, the repairs of the church or the parsonage; for he looks
upon all these things as unconnected with himself, and as the
property of a powerful stranger whom he calls the government. He
has only a life-interest in these possessions, and he entertains
no notions of ownership or of improvement. This want of interest
in his own affairs goes so far, that if his own safety or that of
his children is endangered, instead of trying to avert the peril,
he will fold his arms, and wait till the nation comes to his
assistance. This same individual, who has so completely
sacrificed his own free will, has no natural propensity to
obedience; he cowers, it is true, before the pettiest officer;
but he braves the law with the spirit of a conquered foe as soon
as its superior force is removed: his oscillations between
servitude and license are perpetual. When a nation has arrived
at this state, it must either change its customs and its laws, or
perish: the source of public virtue is dry; and though it may
contain subjects, the race of citizens is extinct. Such
communities are a natural prey to foreign conquest; and if they
do not disappear from the scene of life, it is because they are
surrounded by other nations similar or inferior to themselves; it
is because the instinctive feeling of their country's claims
still exists in their hearts; and because an involuntary pride in
the name it bears, or the vague reminiscence of its by-gone fame,
suffices to give them the impulse of self-preservation.

Nor can the prodigious exertions made by certain people in the
defence of a country, in which they may almost be said to have
lived as aliens, be adduced in favor of such a system; for it
will be found that in these cases their main incitement was
religion. The permanence, the glory, and the prosperity of the
nation, were become parts of their faith; and in defending the
country they inhabited, they defended that holy city of which
they were all citizens. The Turkish tribes have never taken an
active share in the conduct of the affairs of society, but they
accomplished stupendous enterprises as long as the victories of
the sultans were the triumphs of the Mohammedan faith. In the
present age they are in rapid decay, because their religion is
departing, and despotism only remains. Montesquieu, who
attributed to absolute power an authority peculiar to itself, did
it, as I conceive, undeserved honor; for despotism, taken by
itself, can produce no durable results. On close inspection we
shall find that religion, and not fear, has ever been the cause
of the long-lived prosperity of absolute governments. Whatever
exertions may be made, no true power can be founded among men
which does not depend upon the free union of their inclinations;
and patriotism and religion are the only two motives in the world
which can permanently direct the whole of a body politic to one
end.

Laws cannot succeed in rekindling the ardor of an extinguished
faith; but men may be interested in the fate of their country by
the laws. By this influence, the vague impulse of patriotism,
which never abandons the human heart, may be directed and
revived: and if it be connected with the thoughts, the passions
and daily habits of life, it may be consolidated into a durable
and rational sentiment. Let it not be said that the time for the
experiment is already past; for the old age of nations is not
like the old age of men, and every fresh generation is a new
people ready for the care of the legislator.

It is not the _administrative_, but the _political_
effects of the local system that I most admire in America. In
the United States the interests of the country are everywhere
kept in view; they are an object of solicitude to the people of
the whole Union, and every citizen is as warmly attached to them
as if they were his own. He takes pride in the glory of his
nation; he boasts of his success, to which he conceives himself
to have contributed; and he rejoices in the general prosperity by
which he profits. The feeling he entertains toward the state is
analogous to that which unites him to his family, and it is by a
kind of egotism that he interests himself in the welfare of his
country.

The European generally submits to a public officer because he
represents a superior force; but to an American he represents a
right. In America it may be said that no one renders obedience
to man, but to justice and to law. If the opinion which the
citizen entertains of himself is exaggerated, it is at least
salutary; he unhesitatingly confides in his own powers, which
appear to him to be all-sufficient. When a private individual
meditates an undertaking, however directly connected it may be
with the welfare of society, he never thinks of soliciting the
co-operation of the government: but he publishes his plan, offers
to execute it himself, courts the assistance of other
individuals, and struggles manfully against all obstacles.
Undoubtedly he is less successful than the state might have been
in his position; but in the end, the sum of these private
undertakings far exceeds all that the government could effect.

As the administrative authority is within the reach of the
citizens, whom it in some degree represents, it excites neither
their jealousy nor their hatred: as its resources are limited,
every one feels that he must not rely solely on its assistance.
Thus when the administration thinks fit to interfere, it is not
abandoned to itself as in Europe; the duties of the private
citizens are not supposed to have lapsed because the state
assists in their fulfilment; but every one is ready, on the
contrary, to guide and to support it. This action of individual
exertions, joined to that of the public authorities, frequently
performs what the most energetic central administration would be
unable to execute. It would be easy to adduce several facts in
proof of what I advance, but I had rather give only one, with
which I am more thoroughly acquainted.[Footnote:

See Appendix I.

] In America, the means which the authorities have at their
disposal for the discovery of crimes and the arrest of criminals
are few. A state police does not exist, and passports are
unknown. The criminal police of the United States cannot be
compared with that of France; the magistrates and public
prosecutors are not numerous, and the examinations of prisoners
are rapid and oral. Nevertheless in no country does crime more
rarely elude punishment. The reason is that every one conceives
himself to be interested in furnishing evidence of the act
committed, and in stopping the delinquent. During my stay in the
United States, I saw the spontaneous formation of committees for
the pursuit and prosecution of a man who had committed a great
crime in a certain county. In Europe a criminal is an unhappy
being, who is struggling for his life against the ministers of
justice, while the population is merely a spectator of the
conflict: in America he is looked upon as an enemy of the human
race, and the whole of mankind is against him.

I believe that provincial institutions are useful to all nations,
but nowhere do they appear to me to be more indispensable than
among a democratic people. In an aristocracy, order can always
be maintained in the midst of liberty; and as the rulers have a
great deal to lose, order is to them a first-rate consideration.
In like manner an aristocracy protects the people from the
excesses of despotism, because it always possesses an organized
power ready to resist a despot. But a democracy without
provincial institutions has no security against these evils. How
can a populace, unaccustomed to freedom in small concerns, learn
to use it temperately in great affairs? What resistance can be
offered to tyranny in a country where every private individual is
impotent, and where the citizens are united by no common tie?
Those who dread the license of the mob, and those who fear the
rule of absolute power, ought alike to desire the progressive
growth of provincial liberties.

On the other hand, I am convinced that democratic nations are
most exposed to fall beneath the yoke of a central
administration, for several reasons, among which is the
following:--

The constant tendency of these nations is to concentrate all the
strength of the government in the hands of the only power which
directly represents the people: because, beyond the people
nothing is to be perceived but a mass of equal individuals
confounded together. But when the same power is already in
possession of all the attributes of the government, it can
scarcely refrain from penetrating into the details of the
administration; and an opportunity of doing so is sure to present
itself in the end, as was the case in France. In the French
revolution there were two impulses in opposite directions, which
must never be confounded; the one was favorable to liberty, the
other to despotism. Under the ancient monarchy the king was the
sole author of the laws; and below the power of the sovereign,
certain vestiges of provincial institutions half-destroyed, were
still distinguishable. These provincial institutions were
incoherent, ill-compacted, and frequently absurd; in the hands of
the aristocracy they had sometimes been converted into
instruments of oppression. The revolution declared itself the
enemy of royalty and of provincial institutions at the same time;
it confounded all that had preceded it--despotic power and the
checks to its abuses--in an indiscriminate hatred; and its
tendency was at once to republicanism and to centralisation.
This double character of the French revolution is a fact which
has been adroitly handled by the friends of absolute power. Can
they be accused of laboring in the cause of despotism, when they
are defending of the revolution?[Footnote:

See Appendix K.

] In this manner popularity may be conciliated with hostility to
the rights of the people, and the secret slave of tyranny may be
the professed admirer of freedom.

I have visited the two nations in which the system of provincial
liberty has been most perfectly established, and I have listened
to the opinions of different parties in those countries. In
America I met with men who secretly aspired to destroy the
democratic institutions of the Union; in England, I found others
who attacked aristocracy openly; but I know of no one who does
not regard provincial independence as a great benefit. In both
countries I have heard a thousand different causes assigned for
the evils of the state; but the local system was never mentioned
among them. I have heard citizens attribute the power and
prosperity of their country to a multitude of reasons: but they
_all_ placed the advantages of local institutions in the
foremost rank.

Am I to suppose that when men who are naturally so divided on
religious opinions, and on political theories, agree on one point
(and that, one of which they have daily experience), they are all
in error? The only nations which deny the utility of provincial
liberties are those which have fewest of them; in other words,
those who are unacquainted with the institution are the only
persons who pass a censure upon it.

* * * * *

CHAPTER VI.

JUDICIAL POWER IN THE UNITED STATES, AND ITS INFLUENCE
ON POLITICAL SOCIETY.

The Anglo-Americans have retained the Characteristics of judicial
Power which are common to all Nations.--They have, however,
made it a powerful political Organ.--How.--In what the judicial
System of the Anglo-Americans differs from that of all other
Nations.--Why the American Judges have the right of declaring
the Laws to be Unconstitutional.--How they use this
Right.--Precautions taken by the Legislator to prevent its
abuse.

I have thought it essential to devote a separate chapter to the
judicial authorities of the United States, lest their great
political importance should be lessened in the reader's eyes by a
merely incidental mention of them. Confederations have existed
in other countries beside America; and republics have not been
established on the shores of the New World alone: the
representative system of government has been adopted in several
states of Europe; but I am not aware that any nation of the globe
has hitherto organized a judicial power on the principle adopted
by the Americans. The judicial organization of the United States
is the institution which the stranger has the greatest difficulty
in understanding. He hears the authority of a judge invoked in
the political occurrences of every day, and he naturally
concludes that in the United States the judges are important
political functionaries: nevertheless, when he examines the
nature of the tribunals, they offer nothing which is contrary to
the usual habits and privileges of those bodies; and the
magistrates seem to him to interfere in public affairs by chance,
but by a chance which recurs every day.

When the Parliament of Paris remonstrated, or refused to
enregister an edict, or when it summoned a functionary accused of
malversation to its bar, its political influence as a judicial
body was clearly visible; but nothing of the kind is to be seen
in the United States. The Americans have retained all the
ordinary characteristics of judicial authority, and have
carefully restricted its action to the ordinary circle of its
functions.

The first characteristic of judicial power in all nations is the
duty of arbitration. But rights must be contested in order to
warrant the interference of a tribunal; and an action must be
brought to obtain the decision of a judge. As long, therefore,
as a law is uncontested, the judicial authority is not called
upon to discuss it, and it may exist without being perceived.
When a judge in a given case attacks a law relating to that case,
he extends the circle of his customary duties, without, however,
stepping beyond it; since he is in some measure obliged to decide
upon the law, in order to decide the case. But if he pronounces
upon a law without resting upon a case, he clearly steps beyond
his sphere, and invades that of the legislative authority.

The second characteristic of judicial power is, that it
pronounces on special cases, and not upon general principles. If
a judge, in deciding a particular point, destroys a general
principle, by passing a judgment which tends to reject all the
inferences from that principle, and consequently to annul it, he
remains within the ordinary limits of his functions. But if he
directly attacks a general principle without having a particular
case in view, he leaves the circle in which all nations have
agreed to confine his authority; he assumes a more important, and
perhaps a more useful influence than that of the magistrate, but
he ceases to represent the judicial power.

The third characteristic of the judicial power is its inability
to act unless it is appealed to, or until it has taken cognizance
of an affair. This characteristic is less general than the other
two; but notwithstanding the exceptions, I think it may be
regarded as essential. The judicial power is by its nature
devoid of action; it must be put in motion in order to produce a
result. When it is called upon to repress a crime, it punishes
the criminal; when a wrong is to be redressed, it is ready to
redress it; when an act requires interpretation, it is prepared
to interpret it; but it does not pursue criminals, hunt out
wrongs, or examine into evidence of its own accord. A judicial
functionary who should open proceedings, and usurp the censorship
of the laws, would in some measure do violence to the passive
nature of his authority.

The Americans have retained these three distinguishing
characteristics of the judicial power; an American judge can only
pronounce a decision when litigation has arisen, he is only
conversant with special cases, and he cannot act until the cause
has been duly brought before the court. His position is
therefore perfectly similar to that of the magistrate of other
nations; and he is nevertheless invested with immense political
power. If the sphere of his authority and his means of action
are the same as those of other judges, it may be asked whence he
derives a power which they do not possess. The cause of this
difference lies in the simple fact that the Americans have
acknowledged the right of the judges to found their decisions on
the constitution, rather than on the laws. In other words, they
have left them at liberty not to apply such laws as may appear to
them to be unconstitutional.

I am aware that a similar right has been claimed--but claimed in
vain--by courts of justice in other countries; but in America it
is recognized by all the authorities; and not a party, nor so
much as an individual, is found to contest it. This fact can
only be explained by the principles of the American constitution.
In France the constitution is (or at least is supposed to be)
immutable; and the received theory is that no power has the right
of changing any part of it. In England, the parliament has an
acknowledged right to modify the constitution: as, therefore, the
constitution may undergo perpetual changes, it does not in
reality exist; the parliament is at once a legislative and a
constituent assembly. The political theories of America are more
simple and more rational. An American constitution is not
supposed to be immutable as in France; nor is it susceptible of
modification by the ordinary powers of society as in England. It
constitutes a detached whole, which, as it represents the
determination of the whole people, is no less binding on the
legislator than on the private citizen, but which may be altered
by the will of the people in predetermined cases, according to
established rules. In America the constitution may, therefore,
vary, but as long as it exists it is the origin of all authority,
and the sole vehicle of the predominating force.[Footnote:

See Appendix L.

]

It is easy to perceive in what manner these differences must act
upon the position and the rights of the judicial bodies in the
three countries I have cited. If in France the tribunals were
authorized to disobey the laws on the ground of their being
opposed to the constitution, the supreme power would in fact be
placed in their hands, since they alone would have the right of
interpreting a constitution, the clauses of which can be modified
by no authority. They would, therefore, take the place of the
nation, and exercise as absolute a sway over society as the
inherent weakness of judicial power would allow them to do.
Undoubtedly, as the French judges are incompetent to declare a
law to be unconstitutional, the power of changing the
constitution is indirectly given to the legislative body, since
no legal barrier would oppose the alterations which it might
prescribe. But it is better to grant the power of changing the
constitution of the people to men who represent (however
imperfectly) the will of the people, than to men who represent no
one but themselves.

It would be still more unreasonable to invest the English judges
with the right of resisting the decisions of the legislative
body, since the parliament which makes the laws also makes the
constitution; and consequently a law emanating from the three
powers of the state can in no case be unconstitutional. But
neither of these remarks is applicable to America.[Footnote:

See Appendix M.

]

In the United States the constitution governs the legislator as
much as the private citizen: as it is the first of laws, it
cannot be modified by a law; and it is therefore just that the
tribunals should obey the constitution in preference to any law.
This condition is essential to the power of the judicature; for
to select that legal obligation by which he is most strictly
bound, is the natural right of every magistrate.

In France the constitution is also the first of laws, and the
judges have the same right to take it as the ground of their
decisions; but were they to exercise this right, they must
perforce encroach on rights more sacred than their own, namely,
on those of society, in whose name they are acting. In this case
the state motive clearly prevails over the motives of an
individual. In America, where the nation can always reduce its
magistrates to obedience by changing its constitution, no danger
of this kind is to be feared. Upon this point therefore the
political and the logical reason agree, and the people as well as
the judges preserve their privileges.

Whenever a law which the judge holds to be unconstitutional is
argued in a tribunal of the United States, he may refuse to admit
it as a rule; this power is the only one which is peculiar to the
American magistrate, but it gives rise to immense political
influence. Few laws can escape the searching analysis; for there
are few which are not prejudicial to some private interest or
other, and none which may not be brought before a court of
justice by the choice of parties, or by the necessity of the
case. But from the time that a judge has refused to apply any
given law in a case, that law loses a portion of its moral
sanction. The persons to whose interest it is prejudicial, learn
that means exist of evading its authority; and similar suits are
multiplied, until it becomes powerless. One of two alternatives
must then be resorted to: the people must alter the constitution,
or the legislature must repeal the law.

The political power which the Americans have intrusted to their
courts of justice is therefore immense; but the evils of this
power are considerably diminished, by the obligation which has
been imposed of attacking the laws through the courts of justice
alone. If the judge had been empowered to contest the laws on
the ground of theoretical generalities; if he had been enabled to
open an attack or to pass a censure on the legislator, he would
have played a prominent part in the political sphere; and as the
champion or the antagonist of a party, he would have arrayed the
hostile passions of the nation in the conflict. But when a judge
contests a law, applied to some particular case in an obscure
proceeding, the importance of his attack is concealed from the
public gaze; his decision bears upon the interest of an
individual, and if the law is slighted, it is only collaterally.
Moreover, although it be censured, it is not abolished; its moral
force may be diminished, but its cogency is by no means
suspended; and its final destruction can only be accomplished by
the reiterated attacks of judicial functionaries. It will
readily be understood that by connecting the censorship of the
laws with the private interests of members of the community, and
by intimately uniting the prosecution of the law with the
prosecution of an individual, the legislation is protected from
wanton assailants, and from the daily aggressions of party
spirit. The errors of the legislator are exposed whenever their
evil consequences are most felt; and it is always a positive and
appreciable fact which serves as the basis of a prosecution.

I am inclined to believe this practice of the American courts to
be at once the most favorable to liberty as well as to public
order. If the judge could only attack the legislator openly and
directly, he would sometimes be afraid to oppose any resistance
to his will; and at other moments party spirit might encourage
him to brave it every day. The laws would consequently be
attacked when the power from which they emanate is weak, and
obeyed when it is strong. That is to say, when it would be
useful to respect them, they would be contested; and when it
would be easy to convert them into an instrument of oppression,
they would be respected. But the American judge is brought into
the political arena independently of his own will. He only
judges the law because he is obliged to judge a case. The
political question which he is called upon to resolve is
connected with the interest of the parties, and he cannot refuse
to decide it without abdicating the duties of his post. He
performs his functions as a citizen by fulfilling the strict
duties which belong to his profession as a magistrate. It is
true that upon this system the judicial censorship which is
exercised by the courts of justice over the legislation cannot
extend to all laws indiscriminately, inasmuch as some of them can
never give rise to that precise species of contestation which is
termed a lawsuit; and even when such a contestation is possible,
it may happen that no one cares to bring it before a court of
justice. The Americans have often felt this disadvantage, but
they have left the remedy incomplete, lest they should give it
efficacy which in some cases might prove dangerous. Within these
limits, the power vested in the American courts of justice of
pronouncing a statute to be unconstitutional, forms one of the
most powerful barriers which have ever been devised against the
tyranny of political assemblies.