American Institutions And Their Influence

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See Kent's Commentaries, vol. i., p. 387.

] Thus, in point of fact, the judicial power of the Union is
contesting the claims of the sovereignty of a state; but it only
acts indirectly and upon a special application of detail: it
attacks the law in its consequences, not in its principle, and it
rather weakens than destroys it.

The last hypothesis that remained was that each state formed a
corporation enjoying a separate existence and distinct civil
rights, and that it could therefore sue or be sued before a
tribunal. Thus a state could bring an action against another
state. In this instance the Union was not called upon to contest
a provincial law, but to try a suit in which a state was a party.
This suit was perfectly similar to any other cause, except that
the quality of the parties was different; and here the danger
pointed out at the beginning of this chapter exists with less
chance of being avoided. The inherent disadvantage of the very
essence of federal constitutions is, that they engender parties
in the bosom of the nation which present powerful obstacles to
the free course of justice.

* * * * *

HIGH RANK OF THE SUPREME COURTS AMONG THE GREAT
POWERS OF STATE.

No Nation ever constituted so great a judicial Power as the
Americans. Extent of its Prerogative.--Its political
Influence.--The Tranquillity and the very Existence of the
Union depend on the Discretion of the seven federal Judges.

When we have successfully examined in detail the organization of
the supreme court, and the entire prerogatives which its
exercises, we shall readily admit that a more imposing judicial
power was never constituted by any people. The supreme court is
placed at the head of all known tribunals, both by the nature of
its rights and the class of justiciable parties which it
controls.

In all the civilized countries of Europe, the government has
always shown the greatest repugnance to allow the cases to which
it was itself a party to be decided by the ordinary course of
justice. This repugnance naturally attains its utmost height in
an absolute government; and, on the other hand, the privileges of
the courts of justice are extended with the increasing liberties
of the people; but no European nation has at present held that
all judicial controversies, without regard to their origin, can
be decided by the judges of common law.

In America this theory has been actually put in practice; and the
supreme court of the United States is the sole tribunal of the
nation. Its power extends to all the cases arising under laws
and treaties made by the executive and legislative authorities,
to all cases of admiralty and maritime jurisdiction, and in
general to all points which affect the law of nations. It may
even be affirmed that, although its constitution is essentially
judicial, its prerogatives are almost entirely political. Its
sole object is to enforce the execution of the laws of the Union;
and the Union only regulates the relations of the government with
the citizens, and of the nation with foreign powers: the
relations of citizens among themselves are almost exclusively
regulated by the sovereignty of the states.

A second and still greater cause of the preponderance of this
court may be adduced. In the nations of Europe the courts of
justice are only called upon to try the controversies of private
individuals; but the supreme court of the United States summons
sovereign powers to its bar. When the clerk of the court
advances on the steps of the tribunal, and simply says, "The
state of New York _versus_ the state of Ohio," it is
impossible not to feel that the court which he addresses is no
ordinary body; and when it is recollected that one of these
parties represents one million, and the other two millions of
men, one is struck by the responsibility of the seven judges
whose decision is about to satisfy or to disappoint so large a
number of their fellow-citizens.

The peace, the prosperity, and the very existence of the Union,
are invested in the hands of the seven judges. Without their
active co-operation the constitution would be a dead letter: the
executive appeals to them for assistance against the
encroachments of the legislative powers; the legislature demands
their protection from the designs of the executive; they defend
the Union from the disobedience of the states, the states from
the exaggerated claims of the Union, the public interest against
the interests of private citizens, and the conservative spirit of
order against the fleeting innovations of democracy. Their power
is enormous, but it is clothed in the authority of public
opinion. They are the all-powerful guardians of a people which
respects law; but they would be impotent against popular neglect
or popular contempt. The force of public opinion is the most
intractable of agents, because its exact limits cannot be
defined; and it is not less dangerous to exceed, than to remain
below the boundary prescribed.

The federal judges must not only be good citizens, and men
possessed of that information and integrity which are
indispensable to magistrates, but they must be statesmen--
politicians, not unread in the signs of the times, not afraid to
brave the obstacles which can be subdued, nor slow to turn aside
such encroaching elements as may threaten the supremacy of the
Union and the obedience which is due to the laws.

The president, who exercises a limited power, may err without
causing great mischief in the state. Congress may decide amiss
without destroying the Union, because the electoral body in which
congress originates may cause it to retract its decision by
changing its members. But if the supreme court is ever composed
of imprudent men or bad citizens, the Union may be plunged into
anarchy or civil war.

The real cause of this danger, however, does not lie in the
constitution of the tribunal, but in the very nature of federal
governments. We have observed that in confederate peoples it is
especially necessary to consolidate the judicial authority,
because in no other nations do those independent persons who are
able to cope with the social body, exist, in greater power or in
a better condition to resist the physical strength of the
government. But the more a power requires to be strengthened,
the more extensive and independent it must be made; and the
dangers which its abuse may create are heightened by its
independence and its strength. The source of the evil is not,
therefore, in the constitution of the power, but in the
constitution of those states which renders its existence
necessary.

* * * * *

IN WHAT RESPECTS THE FEDERAL CONSTITUTION IS SUPERIOR
TO THAT OF THE STATES.

In what respects the Constitution of the Union can be compared to
that of the States.--Superiority of the Constitution of the
Union attributable to the Wisdom of the federal
Legislators.--Legislature of the Union less dependent on the
People than that of the States.--Executive Power more
independent in its Sphere.--Judicial Power less subjected to
the Inclinations of the Majority.--Practical Consequences of
these Facts.--The Dangers inherent in a democratic Government
eluded by the federal Legislators, and increased by the
Legislators of the States.

The federal constitution differs essentially from that of the
states in the ends which it is intended to accomplish; but in the
means by which these ends are promoted, a greater analogy exists
between them. The objects of the governments are different, but
their forms are the same; and in this special point of view there
is some advantage in comparing them together.

I am of opinion that the federal constitution is superior to all
the constitutions of the states, for several reasons.

The present constitution of the Union was formed at a later
period than those of the majority of the states, and it may have
derived some melioration from past experience. But we shall be
led to acknowledge that this is only a secondary cause of its
superiority, when we recollect that eleven new states have been
added to the American confederation since the promulgation of the
federal constitution, and that these new republics have always
rather exaggerated than avoided the defects which existed in the
former constitutions.

The chief cause of the superiority of the federal constitution
lay in the character of the legislators who composed it. At the
time when it was formed the dangers of the confederation were
imminent, and its ruin seemed inevitable. In this extremity the
people chose the men who most deserved the esteem, rather than
those who had gained the affections of the country. I have
already observed, that distinguished as almost all the
legislators of the Union were for their intelligence, they were
still more so for their patriotism. They had all been nurtured
at a time when the spirit of liberty was braced by a continual
struggle against a powerful and predominant authority. When the
contest was terminated, while the excited passions of the
populace persisted in warring with dangers which had ceased to
threaten them, these men stopped short in their career; they cast
a calmer and more penetrating look upon the country which was now
their own; they perceived that the war of independence was
definitely ended, and that the only dangers which America had to
fear were those which might result from the abuse of the freedom
she had won. They had the courage to say what they believed to
be true, because they were animated by a warm and sincere love of
liberty; and they ventured to propose restrictions, because they
were resolutely opposed to destruction.[Footnote:

At this time Alexander Hamilton, who was one of the principal
founders of the constitution, ventured to express the following
sentiments in the Federalist, No. 71: "There are some who would
be inclined to regard the servile pliancy of the executive to a
prevailing current, either in the community or in the
legislature, as its best recommendation. But such men entertain
very crude notions, as well of the purpose for which government
was instituted, as of the true means by which the public
happiness may be promoted. The republican principle demands that
the deliberative sense of the community should govern the conduct
of those to whom they intrust the managements of their affairs;
but it does not require an unqualified complaisance to every
sudden breeze of passion, or to every transient impulse which the
people may receive from the arts of men who flatter their
prejudices to betray their interests. It is a just observation
that the people commonly _intend_ the _public good_.
This often applies to their very errors. But their good sense
would despise the adulator who should pretend that they would
always _reason right_, about the _means_ of promoting
it. They know from experience that they sometimes err; and the
wonder is that they so seldom err as they do, beset, as they
continually are, by the wiles of parasites and sycophants; by the
snares of the ambitious, the avaricious, the desperate; by the
artifices of men who possess their confidence more than they
deserve it; and of those who seek to possess rather than to
deserve it. When occasions present themselves in which the
interests of the people are at variance with their inclinations,
it is the duty of persons whom they have appointed to be the
guardians of those interests, to withstand the temporary
delusion, in order to give them time and opportunity for more
cool and sedate reflection. Instances might be cited in which a
conduct of this kind has saved the people from very fatal
consequences of their own mistakes, and has procured lasting
monuments of their gratitude to the men who had courage and
magnanimity enough to serve at the peril of their displeasure."

]

The greater number of the constitutions of the states assign one
year for the duration of the house of representatives, and two
years for that of the senate; so that members of the legislative
body are constantly and narrowly tied down by the slightest
desires of their constituents. The legislators of the Union were
of opinion that this excessive dependence of the legislature
tended to alter the nature of the main consequences of the
representative system, since it vested the source not only of
authority, but of government, in the people. They increased the
length of the time for which the representatives were returned,
in order to give them freer scope for the exercise of their own
judgment.

The federal constitution, as well as the constitutions of the
different states, divided the legislative body into two branches.
But in the states these two branches were composed of the same
elements and elected in the same manner. The consequence was
that the passions and inclinations of the populace were as
rapidly and as energetically represented in one chamber as in the
other, and that laws were made with all the characteristics of
violence and precipitation. By the federal constitution the two
houses originate in like manner in the choice of the people; but
the conditions of eligibility and the mode of election were
changed, to the end that if, as is the case in certain nations,
one branch of the legislature represents the same interests as
the other, it may at least represent a superior degree of
intelligence and discretion. A mature age was made one of the
conditions of the senatorial dignity, and the upper house was
chosen by an elected assembly of a limited number of members.

To concentrate the whole social force in the hands of the
legislative body is the natural tendency of democracies; for as
this is the power which emanates the most directly from the
people, it is made to participate most fully in the
preponderating authority of the multitude, and it is naturally
led to monopolise every species of influence. This concentration
is at once prejudicial to a well-conducted administration, and
favorable to the despotism of the majority. The legislators of
the states frequently yielded to these democratic propensities,
which were invariably and courageously resisted by the founders
of the Union.

In the states the executive power is vested in the hands of a
magistrate, who is apparently placed upon a level with the
legislature, but who is in reality nothing more than the blind
agent and the passive instrument of its decisions. He can derive
no influence from the duration of his functions, which terminate
with the revolving year, or from the exercise of prerogatives
which can scarcely be said to exist. The legislature can condemn
him to inaction by intrusting the execution of the laws to
special committees of its own members, and can annul his
temporary dignity by depriving him of his salary. The federal
constitution vests all the privileges and all the responsibility
of the executive power in a single individual. The duration of
the presidency is fixed at four years; the salary of the
individual who fills that office cannot be altered during the
term of his functions; he is protected by a body of official
dependents, and armed with a suspensive veto. In short, every
effort was made to confer a strong and independent position upon
the executive authority, within the limits which had been
prescribed to it.

In the constitution of all the states the judicial power is that
which remains the most independent of the legislative authority:
nevertheless, in all the states the legislature has reserved to
itself the right of regulating the emoluments of the judges, a
practice which necessarily subjects these magistrates to its
immediate influence. In some states the judges are only
temporarily appointed, which deprives them of a great portion of
their power and their freedom. In others the legislative and
judicial powers are entirely confounded: thus the senate of New
York, for instance, constitutes in certain cases the superior
court of the state. The federal constitution, on the other hand,
carefully separates the judicial authority from all external
influences: and it provides for the independence of the judges,
by declaring that their salary shall not be altered, and that
their functions shall be inalienable.

[It is not universally correct, as supposed by the author, that
the state legislatures can deprive their governor of his salary
at pleasure. In the constitution of New York it is provided,
that the governor "shall receive for his services a compensation
which shall neither be increased nor diminished during the term
for which he shall have been elected;" and similar provisions are
believed to exist in other states.

Nor is the remark strictly correct, that the federal constitution
"provides for the independence of the judges, by declaring that
their salary shall not be _altered_." The provision of the
constitution is, that they shall, "at stated times, receive for
their services a compensation which shall not be diminished
during their continuance in office"--_American Editor_.]

The practical consequences of these different systems may easily
be perceived. An attentive observer will soon remark that the
business of the Union is incomparably better conducted than that
of any individual state. The conduct of the federal government
is more fair and more temperate than that of the states; its
designs are more fraught with wisdom, its projects are more
durable and more skilfully combined, its measures are put into
execution with more vigor and consistency.

I recapitulate the substance of this chapter in a few words:--

The existence of democracies is threatened by two dangers, viz.:
the complete subjection of the legislative body to the caprices
of the electoral body; and the concentration of all the powers of
the government in the legislative authority.

The growth of these evils has been encouraged by the policy of
the legislators of the states; but it has been resisted by the
legislators of the Union by every means which lay within their
control.

* * * * *

CHARACTERISTICS WHICH DISTINGUISH THE FEDERAL CONSTITUTION
OF THE UNITED STATES OF AMERICA FROM ALL OTHER
FEDERAL CONSTITUTIONS.

American Union appears to resemble all other
Confederations.--Nevertheless its Effects are
different.--Reason of this.--Distinctions between the Union and
all other Confederations.--The American Government not a
Federal, but an imperfect National Government.

The United States of America do not afford either the first or
the only instance of confederate states, several of which have
existed in modern Europe, without adverting to those of
antiquity. Switzerland, the Germanic empire, and the republic of
the United Provinces, either have been or still are
confederations. In studying the constitutions of these different
countries, the politician is surprised to observe that the powers
with which they invested the federal government are nearly
identical with the privileges awarded by the American
constitution to the government of the United States. They confer
upon the central power the same rights of making peace and war,
of raising money and troops, and of providing for the general
exigencies and the common interests of the nation. Nevertheless
the federal government of these different people has always been
as remarkable for its weakness and inefficiency as that of the
Union is for its vigorous and enterprising spirit. Again, the
first American confederation perished through the excessive
weakness of its government; and this weak government was,
notwithstanding, in possession of rights even more extensive than
those of the federal government of the present day. But the more
recent constitution of the United States contains certain
principles which exercise a most important influence, although
they do not at once strike the observer.

This constitution, which may at first sight be confounded with
the federal constitutions which preceded it, rests upon a novel
theory, which may be considered as a great invention in modern
political science. In all the confederations which had been
formed before the American constitution of 1789, the allied
states agreed to obey the injunctions of a federal government:
but they reserved to themselves the right of ordaining and
enforcing the execution of the laws of the Union. The American
states which combined in 1789 agreed that the federal government
should not only dictate the laws, but it should execute its own
enactments. In both cases the right is the same, but the
exercise of the right is different; and this alteration produced
the most momentous consequences.

In all the confederations which have been formed before the
American Union, the federal government demanded its supplies at
the hands of the separate governments; and if the measure it
prescribed was onerous to any one of those bodies, means were
found to evade its claims: if the state was powerful, it had
recourse to arms; if it was weak, it connived at the resistance
which the law of the Union, its sovereign, met with, and resorted
to inaction under the plea of inability. Under these
circumstances one of two alternatives has invariably occurred:
either the most preponderant of the allied peoples has assumed
the privileges of the federal authority, and ruled all the other
states in its name,[Footnote:

This was the case in Greece, when Philip undertook to execute the
decree of the Amphictyons; in the Low Countries, where the
province of Holland always gave the law; and in our time in the
Germanic confederation, in which Austria and Prussia assume a
great degree of influence over the whole country, in the name of
the Diet.

] or the federal government has been abandoned by its natural
supporters, anarchy has arisen between the confederates, and the
Union has lost all power of action.[Footnote:

Such has always been the situation of the Swiss confederation,
which would have perished ages ago but for the mutual jealousies
of its neighbors.

]

In America the subjects of the Union are not states, but private
citizens: the national government levies a tax, not upon the
state of Massachusetts, but upon each inhabitant of
Massachusetts. All former confederate governments presided over
communities, but that of the Union rules individuals; its force
is not borrowed, but self-derived; and it is served by its own
civil and military officers, by its own army, and its own courts
of justice. It cannot be doubted that the spirit of the nation,
the passions of the multitude, and the provincial prejudices of
each state, tend singularly to diminish the authority of a
federal authority thus constituted, and to facilitate the means
of resistance to its mandates; but the comparative weakness of a
restricted sovereignty is an evil inherent in the federal system.
In America, each state has fewer opportunities of resistance, and
fewer temptations to non-compliance; nor can such a design be put
in execution (if indeed it be entertained), without an open
violation of the laws of the Union, a direct interruption of the
ordinary course of justice, and a bold declaration of revolt; in
a word, without a decisive step, which men hesitate to adopt.

In all former confederations, the privileges of the Union
furnished more elements of discord than of power, since they
multiplied the claims of the nation without augmenting the means
of enforcing them: and in accordance with this fact it may be
remarked, that the real weakness of federal governments has
almost always been in the exact ratio of their nominal power.
Such is not the case with the American Union, in which, as in
ordinary governments, the federal government has the means of
enforcing all it is empowered to demand.

The human understanding more easily invents new things than new
words, and we are thence constrained to employ a multitude of
improper and inadequate expressions. When several nations form a
permanent league, and establish a supreme authority, which,
although it has not the same influence over the members of the
community as a national government, acts upon each of the
confederate states in a body, this government, which is so
essentially different from all others, is denominated a federal
one. Another form of society is afterward discovered, in which
several peoples are fused into one and the same nation with
regard to certain common interests, although they remain
distinct, or at least only confederate, with regard to all their
other concerns. In this case the central power acts directly
upon those whom it governs, whom it rules, and whom it judges, in
the same manner as, but in a more limited circle than, a national
government. Here the term of federal government is clearly no
longer applicable to a state of things which must be styled an
incomplete national government: a form of government has been
found out which is neither exactly national nor federal; but no
farther progress has been made, and the new word which will one
day designate this novel invention does not yet exist.