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CHAPTER 6 ^a Of the Judicial Power in the United States and Its Action on Political Society ^b

The Anglo-Americans have kept all the characteristics that distinguish the judicial power among other peoples.—They have,

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however, made it into a great political power.—How.—How the judicial system of the Anglo-Americans differs from all others.—Why American judges have the right to declare laws unconstitutional.—How American judges exercise this right.—Precautions taken by the law-maker to prevent abuse of this right.

I have thought that a separate chapter must be devoted to the judicial power. Its political importance is so great that it seemed to me that talking about it in passing would diminish it in the eyes of readers.

There have been confederations elsewhere than in America; we have seen republics in places other than on the shores of the New World; the representative system is adopted in several States in Europe; but I do not think that until now any nation in the world has constituted the judicial power in the same way as the Americans.^c

[≠The Americans have established the judicial power as counterbalance and barrier to the legislative power. They have made it a political power of the first order.≠]

What is most difficult for a foreigner to understand in the United States is the judicial organization. There is, so to speak, no political event in which he does not hear the authority of the judge invoked; and he naturally concludes that in the United States the judge is one of the premier political powers. Then when he comes to examine the constitution of the courts, he discovers at first view only judicial attributions and habits. In his eyes, the magistrate seems never to get into public affairs except by chance; but this very chance recurs daily.

When the Parlement of Paris made remonstrances and refused to register an edict, when on its own it summoned a corrupt official to appear before it, the political action of the judicial power could be recognized. But nothing similar is seen in the United States. [{The American judge never enters

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into direct conflict [v: is never found battling] with the political powers strictly defined.}]

The Americans have kept all the characteristics by which the judicial power is customarily recognized. They have enclosed it exactly within the circle where it habitually moves.

The first characteristic of the judicial power, among all peoples, is to serve as arbiter. For the courts to take action, a case must be brought. For there to be a judge, there must be proceedings. As long as a law does not give rise to a case, the judicial power has no occasion to get involved with it. The judicial power is there, but it doesn’t see the law. When a judge, as part of a trial, attacks a law relating to the trial, he extends the circle of his attributions, but he does not go beyond them, since in a way he must judge the law in order to be able to judge the trial. When he delivers a verdict on a law, outside of a trial, he goes completely beyond his sphere and enters into that of the legislative power.

The second characteristic of the judicial power is to deliver a verdict concerning particular cases and not concerning general principles. Should a judge, while deciding a particular question, make it certain that each of the consequences of the same principle is struck down in the same way, the principle becomes sterile. While destroying the general principle in this way, he remains within the natural circle of his action. But should a judge directly attack the general principle and destroy it without having a particular case in view, he goes beyond the circle where all peoples have agreed to enclose him; he becomes something more important, perhaps more useful than a magistrate, but he ceases to represent the judicial power.

The third characteristic of the judicial power is to be able to act only when it is called upon, or, following the legal expression, when it is apprised. This characteristic is not found as generally as the other two. I believe, however, that, despite exceptions, it can be considered as essential. By its nature, the judicial power is passive; to stir, it must be put in motion. Someone denounces a crime before it and it punishes the guilty; someone calls upon it to redress an injustice and it redresses it; someone submits an act to it and it interprets it; but it does not go on its own to pursue criminals, seek out injustice and examine facts. In a way the judicial power would do violence

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to this passive nature if it took initiative on its own and set itself up as censor of the laws.

[<Two things must not be confused. The same man can be vested with political and judicial powers without thereby mingling political and judicial power. The mind sees them as distinct in the very midst of the confusion of actions. When the Parlement of Paris issued decisions, registered edicts and made regulations for public order, it formed only a single body; but within it three different powers were easily distinguished>.]

The Americans have kept these three distinctive characteristics for the judicial power. The American judge can deliver a verdict only when there is a lawsuit. He can never get involved except in a particular case; and to act he must always wait to be apprised.

So the American judge perfectly resembles the magistrates of other nations. He is vested, however, with an immense political power [that the latter do not have. His power forms the most formidable barrier to the encroachments of the legislature].

What causes that? He moves within the same circle and uses the same means as other judges; why does he possess a power that the latter do not have?

The cause is this single fact: the Americans have recognized the right of judges to base their decisions on the constitution rather than on the laws. In other words, they have allowed them not to apply laws that would appear unconstitutional to them.

I know that a similar right has sometimes been claimed by the courts of other countries; but it has never been granted to them. In America, it is recognized by all powers; no party, not even a man is met who contests it.

The explanation for this must be found in the very principle of American constitutions.

In France, the constitution is, or is considered to be, an immutable work.^d No power can change anything in it; such is the accepted theory.^{e L}

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In England, Parliament is recognized to have the right to modify the constitution. In England, therefore, the constitution can change constantly, or rather it does not exist at all. Parliament is, at the same time, the legislative body and the constituent body.^M

In America, political theories are simpler and more rational.

An American constitution is not considered to be immutable, as in France; it cannot be modified by the ordinary powers of society, as in England. It forms a work apart that, representing the will of all the people, binds legislators as well as ordinary citizens; but it can be changed by the will of the people following established forms and in cases for which provisions have been made.

So in America, the constitution can vary; but as long as it exists, it is the source of all powers. Predominant force resides in it alone.

It is easy to see how these differences must influence the position and rights of the judicial body in the three countries that I have cited.

If, in France, the courts could disobey the laws on the grounds that they found them unconstitutional, the constituent power would actually be in their hands, since they alone would have the right to interpret a constitution whose terms no one could change. They would therefore take the place of the nation and would dominate society, at least in so far as the inherent weakness of the judicial power would allow them to do so.^f

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I know that by denying judges the right to declare laws unconstitutional, we indirectly give the legislative body the power to change the constitution, since it no longer encounters a legal barrier that stops it. But better to grant the power to change the constitution of the people to men who imperfectly represent the will of the people, than to others who represent only themselves.

It would be still more unreasonable to give English judges the right to resist the will of the legislative body, because Parliament, which makes the law, makes the constitution as well, and because, as a result, a law cannot

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in any case be called unconstitutional when it issues from the three powers.

Neither of these two arguments applies to America.

In the United States, the constitution dominates the legislators as well as ordinary citizens. It is, therefore, the highest law and cannot be modified by a law. So it is right that the courts obey the constitution in preference to all laws [and by doing so, they do not make themselves masters of society since the people, by changing the constitution, can always reduce the judges to obedience. So American judges refuse without hesitation to apply laws that seem to them contrary to the constitution]. This follows from the very essence of the judicial power: to choose from among legal provisions those that bind him most strictly is in a way the natural right of the magistrate.

In France, as well, the constitution is the highest law, and judges have an equal right to base their decisions on it. But by exercising this right, they would not be able to avoid encroaching upon another right still more sacred than theirs: that of the society in whose name they act. Here ordinary reason must yield to reason of state.^g

In America, where the nation can always reduce magistrates to obedience by changing its constitution, a similar danger is not to be feared. On this point, therefore, politics and logic are in agreement, and the people as well as the judges equally retain their privileges.

When a law that the judge considers contrary to the constitution is invoked before the courts of the United States, he can refuse to apply it. This power is the only one particular to the American magistrate, but a great political influence follows from it.

There are, in fact, very few laws that can by nature escape judicial analysis for long, for there are very few of them that do not harm an individual interest, and that litigants cannot or must not cite before the courts.

Now, from the day when the judge refuses to apply a law in a trial, it

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instantly loses part of its moral force. Those who have been wronged by the law are then alerted that a way exists to escape the obligation to obey it; trials multiply, and it becomes powerless. Then one of these two things happens: the people change the constitution or the legislature revokes its law.

So the Americans have given their courts an immense political power; but by forcing them to challenge laws only by judicial means, they have greatly diminished the dangers of this power.

If the judge had been able to challenge laws in a theoretical and general fashion; if he had been able to take the initiative and censure the legislator, he would have burst upon the political scene. Having become the champion or the adversary of one party, he would have called upon all the passions that divide the country to join in the struggle. But when the judge challenges a law in an obscure debate and on a particular application, he partially conceals the importance of the challenge from the eyes of the public. His decision intends only to strike an individual interest; the law is harmed only by chance.

The law censured in this way, moreover, is not destroyed; its moral force is lessened, but its material effect is not suspended. Only little by little, and under the repeated blows of jurisprudence, does it finally succumb. [{If the law were challenged directly it would triumph or succumb in a day.}]

Furthermore, it is easily understood that by charging individual interest with provoking the censure of laws, by intimately linking the trial of the law to the trial of a man, you assure that legislation will not be lightly challenged. In this system legislation is no longer exposed to the daily aggression of parties. By pointing out the mistakes of the legislator, you obey a real need; you start with a definite and appreciable fact, since it must serve as the basis for a trial.

I do not know whether the way in which the American courts act, at the same time that it is most favorable to public order, is not most favorable to liberty as well.

If the judge could challenge the legislators only head on, there are times when he would be afraid to do so; there are other times when partisan spirit would push him daily to dare to do so. Thus the laws would be challenged when the power from which they came was weak, and you would submit

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to them in silence when that power was strong. That is to say that the laws would often be challenged when respect for them would be most useful, and would be respected when oppression in their name would become easy.^h

But the American judge is led onto political terrain despite himself. He judges the law only because he has a trial to judge and cannot avoid judging the trial. The political question that he must resolve is linked with the interest of the litigants, and he cannot refuse to settle it without committing a denial of justice. By fulfilling the strict duties imposed on the profession of magistrate, he performs the act of a citizen. It is true that judicial censure, exercised by the courts on legislation, cannot be extended in this way to all laws without distinction, for there are some that can never give rise to this kind of clearly formulated dispute that is called a trial. And when such a dispute is possible, it is still conceivable that there will be no one who wants to submit it to the courts.

The Americans have often felt this drawback, but they have left the remedy incomplete for fear of making it dangerously effective in all cases.

Enclosed within its limits, the power granted to the American courts to rule on the unconstitutionality of laws still forms one of the most powerful barriers that has ever been raised against the tyranny of political assemblies.^j

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Other Powers Granted to American Judges

In the United States, all citizens have the right to accuse public officials before ordinary courts.—How they exercise this right.—Art. 75 of the French constitution of the year VIII.—The Americans and the English cannot understand the sense of this article.

I do not know if I need to say that among a free people, like the Americans, all citizens have the right to accuse public officials before ordinary judges, and that all judges have the right to condemn public officials, it is so natural a thing.

To allow the courts to punish agents of the executive power when they violate the law is not giving the courts a particular privilege. To forbid them to do so is taking away a natural right.

It did not appear to me that in the United States, by making all officials responsible to the courts, the forces of government had been weakened.

It seemed to me, on the contrary, that the Americans, by acting in this way, had increased the respect that is owed to those who govern, the latter being much more careful to avoid criticism.

Nor did I observe in the United States that many political trials were instituted, and it is easily explained. A trial is always, whatever its nature, a difficult and costly enterprise. It is easy to accuse a public man in the newspapers, but it is not without grave motives that someone decides to bring him before the law. So to bring legal proceedings against an official, it is necessary to have just grounds of complaint; and officials hardly provide such grounds when they fear having proceedings brought.

This does not result from the republican form that the Americans have adopted, for the same experience can occur every day in England.

These two peoples did not believe that their independence had been assured by allowing the principal agents of power to be put on trial. Instead, they thought that they succeeded in guaranteeing liberty, much more by small trials, placed daily within the reach of the least citizen, than by great proceedings that were never used or were used too late.

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In the Middle Ages, when it was very difficult to reach criminals, judges, when they got hold of some of them, often inflicted terrible punishments on these unfortunates; this did not reduce the number of those guilty. Since then, we have discovered that by making justice both more certain and milder, we have made it more effective at the same time.

The Americans and the English think that arbitrariness and tyranny must be treated like theft: make it easier to take legal action and make the penalty more mild.

In the year VIII of the French Republic, a constitution appeared whose article 75 was worded thus: “The agents of the government, other than the ministers, cannot have legal proceedings instituted against them for facts relating to their functions, except by virtue of a decision of the Conseil d’État; in this case, the proceedings take place before the ordinary courts.”

The constitution of the year VIII passed from the scene, but not this article, which remained after it [{and we are still so inexperienced in the art of [being (ed.)] free.}]; and it is still used every day to oppose the just complaints of citizens.

[{But this is particular to France.}]

I have often tried to explain the sense of this art. 75 to some Americans or Englishmen, and it has always been very difficult for me to succeed in doing so.

What they noticed first was that the Conseil d’État, in France, was a high court seated at the center of the kingdom; there was a kind of tyranny in sending all complainants before it as a preliminary step.

But when I tried to make them understand that the Conseil d’État was not a judicial body at all, in the ordinary sense of the term, but an administrative body, whose members were dependent on the King; and that the King, as sovereign, after ordering one of his servants, called prefect, to commit a wrongful act, could order, as sovereign, another of his servants, called councilor of the Conseil d’État, to prevent someone from having the first punished; when I showed them the citizen harmed by the order of the prince, reduced to asking the prince himself for the authorization to seek justice, they refused to believe in such enormities and accused me of lying and of ignorance.

Often, in the old monarchy, the parlement ordered the arrest of the public official who made himself guilty of a crime. Sometimes the royal authority,

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intervening, had the procedure annulled. Despotism then showed itself openly, and people, while obeying, submitted only to force.

So we have retreated far from the point reached by our fathers; for we allow, under the color of justice, and consecrate, in the name of law, deeds that violence alone imposed on them.