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CHAPTER 8 Of the Federal Constitution
Until now I have considered each state as forming a complete whole, and I have shown the different mechanisms that the people put in motion there, as well as the means of action that they use. But all these states that I have envisaged as independent are, in certain cases, forced to obey a supreme authority, which is that of the Union. The time has come to examine the portion of sovereignty that has been conceded to the Union, and to cast a rapid glance over the federal constitution.1
Historical Background of the Federal Constitution a
Origin of the first Union.—Its weakness.—Congress summons the constituent power.—Interval of two years that
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passes between this moment and that when the new Constitution is promulgated.
[≠I am not among those who profess a blind faith in legal prescriptions and who think that it is sufficient to change the laws of a people in order to modify easily their social and political state. Laws 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 the people. In this last case, the laws are only the conspicuous and legal manifestation of a preexistent fact.b
But I admit that when laws are found to be in harmony with the needs {the social state} of a country, its mores and its habits, their effect is often something of a miracle.
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No country on earth more than America has ever given a greater example of the power of laws on the life of political society.≠]
The thirteen colonies that simultaneously threw off the yoke of England at the end of the last century had, as I have already said, the same religion, the same language, the same mores, nearly the same laws; they struggled against a common enemy. So they must have had strong reasons to unite closely together, and to be absorbed into one and the same nation.
But each of them, having always had a separate existence and a government close at hand, had created particular interests as well as customs; and each found repugnant a solid and complete union that would have made its individual importance disappear within a common importance. From that, two opposing tendencies: one that led the Anglo-Americans to unite; the other that led them to separate.
As long as the war with the mother country lasted, necessity made the principle of union prevail. And, although the laws that constituted the union were defective, the common bond continued to exist in spite of them.2
But as soon as peace was concluded, the vices of the legislationc became clear; the State seemed to dissolve all at once. Each colony, having become an independent republic, seized full sovereignty. The federal government, condemned by its very constitution to weakness, and no longer supported by the feeling of public danger, saw its flag abandoned to the outrages of the great peoples of Europe. At the same time, it could not find sufficient resources to stand up to the Indian nations and to pay the interest on debts contracted during the war for independence. About to perish, it officially declared its own impotence and summoned the constituent power.3
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If ever America was capable of rising for a few moments to the high level of glory that the proud imaginationd of its inhabitants would like constantly to show us, it was at this supreme moment when the national power had, in a way, just abdicated authority.
For a people to struggle energetically to conquer its independence is a spectacle that every century has been able to provide. The efforts made by the Americans to escape from the yoke of the English have, moreover, been much exaggerated. Separated from their enemies by 1,300 leagues of ocean, aided by a powerful ally, the United States owed their victory to their position much more than to the merit of their armies or to the patriotism of their citizens.e Who would dare to compare the American war to the wars of the French Revolution, and the efforts of the Americans to ours? France, the object of attacks from the whole of Europe, without money, credit, allies, threw one-twentieth of its population before its enemies, with one hand putting out the conflagration that devoured its bowels and with the other carrying the torch abroad.f But what is new in the history of societies is to see a great people, warned by its legislators that the gears of government are grinding to a halt, turn its attention to itself, without rushing and without fear; sound the depth of the trouble; keep self-control for two whole years, in order to take time to find the remedy; and, when this remedy is indicated, voluntarily submit to it without costing humanity either a tear or a drop of blood.
When the insufficiency of the first federal constitution made itself felt, the excitement of the political passions that had given birth to the revolution was partially calmed, and all the great men that it had created still lived. This was double good fortune for America. The small assembly,4
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which charged itself with drafting the second constitution, included the best minds and most noble characters that had ever appeared in the New World. George Washington presided over it.h
This national commission, after long and mature deliberations, finally offered to the people for adoption the body of organic laws that still governs the Union today. All the states successively adopted it.5 The new federal government began to operate in 1789, after two years of interregnum. So the American Revolution finished precisely at the moment when ours began.
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Summary Picture of the Federal Constitution j
Division of powers between federal sovereignty and that of the states.—The government of the states remains the normal law;—the federal government, the exception.
A first difficulty must have presented itself to the minds of the Americans. It was a question of sharing sovereignty in such a way that the different states that formed the Union continued to govern themselves in everything that related only to their internal prosperity, and that the whole nation, represented by the Union, did not cease to be a body and to provide for all its general needs. A complex question, difficult to resolve.k
It was impossible to set in advance, in an exact and complete manner, the portion of power that had to revert to each of these two governments that were going to share sovereignty.
Who would be able to anticipate in advance all the details of the life of a people?
The duties and rights of the federal government were simple and easy enough to define, because the Union had been formed for the purpose of meeting a number of great general needs. The duties and rights of the government of the states were, on the contrary, numerous and complicated, because this government penetrated into all the details of social life.
So the attributions of the federal government were defined with great care,m and everything that was not included in the definition was declared to be part of the attributions of the government of the states. Thus, the
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government of the states remained the normal law; the federal government was the exception.6
But it was anticipated that, in practice, questions could arise relative to the exact limits of this exceptional government, and that it would be dangerous to abandon the solution of these questions to the ordinary courts established in the different states, by the states themselves. So a high federal court,7 a single tribunal, was created; one of its attributions was to maintain the division of powers between the two rival governments as the Constitution had established it.8
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Attributions of the Federal Government
Power granted to the federal government to make peace, war, to establish general taxes.—Matter of internal political policy with which it can be involved.—The government of the Union, more centralized on some points than was the royal government under the old French monarchy.
Peoples in relation to one another are only individuals. Above all, a nation needs a single government to appear with advantage in regard to foreigners.
So the Union was granted the exclusive right to make war and peace; to conclude treaties of commerce; to raise armies, to equip fleets.9
The necessity of a national government does not make itself as strongly felt in the direction of the internal affairs of society.
Nonetheless, there are certain general interests for which only a general authority can usefully provide.
The Union was left the right to regulate all that relates to the value of money; it was charged with the postal service; it was given the right to open
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the great avenues of communication that had to unite the various parts of the territory.10
The government of the different states was generally considered free in its sphere, but it could abuse this independence and compromise the security of the entire Union through imprudent measures. For these rare cases, defined in advance, the federal government was permitted to intervene in the internal affairs of the states.11 That explains how, while still recognizing in each of the confederated republics the power to modify and change its legislation, each was, nevertheless, forbidden to make retroactive laws and to create bodies of noblemen within its midst.12
Finally, since the federal government had to be able to fulfill the obligations imposed on it, it was given the unlimited right to levy taxes.13
When you pay attention to the division of powers as the federal constitution has established it; 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 governmental centralization.o
The United States forms not only a republic, but also a confederation.p But the national authority there is, in several respects, more centralized than it was in the same period under several of the absolute monarchies of Europe. I will cite only two examples.
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France counted thirteen sovereign courts that, most often, had the right to interpret the law without appeal. It possessed, in addition, certain provinces called pays d’États that could refuse their support, after the sovereign authority, charged with representing the nation, had ordered the raising of a tax.
The Union has only a single court to interpret the law, as well as a single legislature to make the law; a tax voted by the representatives of the nation obligates all the citizens. So the Union is more centralized on these two essential points than the French monarchy was; the Union, however, is only a collection of confederated republics.
In Spain, certain provincesq had the power to establish their own customs system, a power that, by its very essence, stems from national sovereignty.
In America, Congress alone has the right to regulate commerce among the states. So the government of the confederation is more centralized on this point than that of the kingdom of Spain.
It is true that, in the end, you arrived at the same point, since in France and in Spain the royal power is always able to execute, by force if necessary, what the constitution of the kingdom denied it the right to do. But I am talking here about theory.
After having enclosed the federal government within a clearly drawn circle of action, it was a matter of knowing how to make it work.
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Legislative Powersr [DIFFERENCE BETWEEN THE CONSTITUTION OF THE SENATE AND THAT OF THE HOUSE OF REPRESENTATIVES]
Division of the legislative body into two branches.—Differences in the way the two houses are formed.—The principle of the independence of the state triumphs in the formation of the Senate.—The dogma of national sovereignty, in the composition of the House of Representatives.—Singular effects that result from this, that constitutions are logical only when peoples are young.
In the organization of the powers of the Union, the plan that was traced in advance by the particular constitution of each of the states was followed on many points.
The federal legislative body of the Union was composed of a Senate and a House of Representatives.
The spirit of conciliation caused different rules to be followed in the formation of each of these assemblies.
I brought out above that, when the Americans wanted to establish the federal constitution, two opposing interests found themselves face to face. These two interests had given birth to two opinions.
Some wanted to make the Union a league of independent states, a sort of congress where the representatives of distinct peoples would come to discuss certain points of common interest.
Others wanted to unite all the inhabitants of the old colonies into one and the same people, and give them a government that, although its sphere would be limited, would be able to act within this sphere, as the one and only representative of the nation. The practical consequences of these two theories were very different.
Thus, if it was a matter of organizing a league and not a national government, it was up to the majority of the states to make laws, and not up
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to the majority of the inhabitants of the Union. For each state, large or small, would then conserve its character of independent power and would enter into the Union on a perfectly equal footing.
On the contrary, from the moment when the inhabitants of the United States were considered to form one and the same people, it was natural that only the majority of the citizens of the Union made the law.
Understandably, the small states could not consent to the application of this doctrine without completely abdicating their existence in what concerned federal sovereignty; for, from co-regulating power, they would become an insignificant fraction of a great people. The first system would have granted them an unreasonable power; the second nullified them.
In this situation, what almost always happens when interests are opposed to arguments happened: the rules of logic were made to bend. The law-makers adopted a middle course that forced conciliation of two systems theoretically irreconcilable.
The principle of the independence of the states triumphed in the formation of the Senate;s the dogma of national sovereignty, in the composition of the House of Representatives.t
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Each state had to send two senators to Congress and a certain number of representatives,u in proportion to its population.14
Today, as a result of this arrangement, the state of New York has forty representatives in Congress and only two senators; the state of Delaware, two senators and only one representative. So in the Senate, the state of Delaware is the equal of the state of New York, while the latter has, in the House of Representatives, forty times more influence than the first. Thus, it can happen that the minority of the nation, dominating the Senate, entirely paralyzes the desires of the majority, represented by the other chamber; this is contrary to the spirit of constitutional governments.
All this shows clearly how rare and difficult it is to link all the parts of legislation together in a logical and rational manner.
In the long run, time always gives birth to different interests and consecrates diverse rights in the same people. Then, when it is a question of establishing a general constitution, each of these interests and rights serves as so many natural obstacles that are opposed to following all of the consequences of any one political principle. So only at the birth of societies can you be perfectly logical in the laws. When you see a people enjoy this advantage, do not rush to conclude that they are wise; instead, think that they are young.
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At the time when the federal Constitution was formed, only two interests positively opposed to each other existed among the Anglo-Americans: the interest of individuality for the particular states, and the interest of union for the whole people. It was necessary to come to a compromise.
You must recognize, nonetheless, that up to now this part of the Constitution has not produced the evils that could be feared.
All the states are young;v they are near each other; they have homogeneous 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.
Beyond that, it must not be forgotten that it did not depend on the American law-makers to make one and the same nation out of the people to whom they wanted to give laws. The aim of the federal Constitution was not to destroy the existence of the states, but only to restrain it. So, from the moment when a real power was left to those secondary bodies (and it could not be taken from them), the habitual use of constraint to bend them to the will of the majority was renounced in advance. This said, the introduction of the individual strengths of the states into the mechanism of the federal government was nothing extraordinary. It only took note of an existing fact, a recognized power that had to be treated gently and not violated.
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Another Difference between the Senate and the House of Representatives w
The Senate named by the provincial legislators.—The representatives, by the people.—Two levels of election for the first.—A single one for the second.—Length of the different mandates.—Attributions.
The Senate differs from the other chamber not only by the very principle of representation, but also by the mode of election, by the length of mandate and by the diversity of attributions.
The House of Representatives is named by the people; the Senate, by the legislators of each state.
The one is the product of direct election; the other, of indirect election.
The mandate of representatives lasts only two years; that of the senators, six.
The House of Representatives has only legislative functions; it participates in judicial power only by accusing public officials. The Senate participates in the making of laws; it judges political crimes that are referred to it by the House of Representatives; it is, in addition, the great executive council of the nation. Treaties, concluded by the President, must be validated by the Senate; his choices, to be definitive, need to receive the approval of the same body.15
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Dependence of the President.—Elective and accountable.—Free in his sphere; the Senate oversees him and does not direct him.—The salary of the President fixed at his entry into office.—Qualified veto.
The American law-makers had a difficult task to fulfill: they wanted to create an executive power that depended on the majority and yet was strong enough by itself to act freely in its sphere.x
The maintenance of the republican form required that the representative of the executive power be subject to the national will.
The President is an elective magistrate. His honor, goods, liberty, life answer continually to the people for the good use that he will make of his power. While exercising his power, moreover, he is not completely independent. The Senate watches over him in his relations with foreign powers, as well as in the distribution of positions; so he can be neither corrupted nor corrupt.
The law-makers of the Union recognized that the executive power could not fulfill its task usefully and with dignity, if they did not succeed in giving it more stability and strength than it had been granted in the particular states.
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The President was named for four years and could be re-elected. With a future, he had the courage to work for the public good and the means to implement it.
The President was made the one and only representative of the executive power of the Union. Care was even taken not to subordinate his will to those of a council: a dangerous measure that, while weakening the action of the government, lessens the accountability of those who govern. The Senate has the right to strike down some of the acts of the President, but it can neither force him to act, nor share the executive power with him.
The action of the legislature on the executive power can be direct; we have just seen that the Americans took care that it was not. It can also be indirect.
The chambers, by depriving the public official of his salary, take away a part of his independence; it must be feared that, masters of making laws, they will little by little take away the portion of power that the Constitution wanted to keep for him.
This dependence of the executive power is one of the vices inherent in republican constitutions. The Americans have not been able to destroy the inclination that leads legislative assemblies to take hold of government,y but they have made this inclination less irresistible.
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The salary of the President is fixed, at his entry into office, for the entire time that his leadership lasts. In addition, the President is armed with a qualified veto that permits him to stop the passage of laws that would be able to destroy the portion of independence that the constitution left to him. There can only be an unequal struggle, however, between the President and the legislature, since the latter, by persevering in its intentions, always has the power to overcome the resistance that opposes it. But the qualified veto at least forces it to retrace its steps; it forces the legislature to consider the question again; and this time, it can no longer decide except with a two-thirds majority of those voting. The veto, moreover, 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 oppressed in secret. But if the legislature perseveres in its intentions, can it not always overcome the resistance that opposes it? To that I will answer that in the constitution of all peoples, no matter what its nature, there is a point where the law-maker is obliged to rely on the good sense and virtue of the citizens. This point is closer and more visible in republics, more removed and more carefully hidden in monarchies; but it is always found somewhere. There is no country where the law can foresee everything and where the institutions must take the place of reason and mores.
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The executive power, in the United States, limited and exceptional, like the sovereignty in the name of which it acts.—The executive power in France extends to everything, like the sovereignty there.—The King is one of the authors of the law.—The President is only the executor of the law.—Other differences that arise from the duration of the two powers.—The President hampered in the sphere of executive power.—The King is free there.—France, despite these differences, resembles a republic more than the Union does a monarchy.—Comparison of the number of officials who depend on the executive power in the two countries.
The executive power plays such a great role in the destiny of nations that I want to stop for an instant here in order to explain better what place it occupies among the Americans.
In order to conceive a clear and precise idea of the position of the President of the United States, it is useful to compare it to that of the King in one of the constitutional monarchies of Europe.z
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In this comparison, I will attach little importance to the external signs of power; they fool the observer more than they help.
When a monarchy is gradually transformed into a republic, the executive power there keeps titles, honors, respect, and even money, long after it has lost the reality of power. The English, after having cut off the head of one of their kings and having chased another from the throne, still knelt to speak to the successors of these princes.
On the other hand, when republics fall under the yoke of one man, power continues to appear simple, plain and modest in its manners, as if it had not already risen above everyone. When the emperors despotically disposed of the fortune and the life of their citizens, they were still called Caesar when spoken to, and they went informally to have supper at the homes of their friends.
So we must abandon the surface and penetrate deeper.
Sovereignty, in the United States, is divided between the Union and the states; while among us, it is one and compact. From that arises the first and greatest difference that I notice between the President of the United States and the King in France.
In the United States, executive power is limited and exceptional,a like
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the very sovereignty in whose name it acts; in France, it extends to everything, like the sovereignty there.
The Americans have a federal government; we have a national government.
This is a primary cause of inferiority that results from the very nature of things; but it is not the only one. The second in importance is this: strictly speaking, sovereignty can be defined as the right to make laws.
The King, in France, really constitutes one part of the sovereign power, since laws do not exist if he refuses to sanction them. In addition, he executes the law.
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 by 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.
The King shares with the Chambers the right to propose laws.
The President has no similar initiative.
The King is represented, within the Chambers, by a certain number of agents who set forth his views, uphold his opinions and make his maxims of government prevail.
The President has no entry into Congress; his ministers are excluded as he is, and it is only by indirect pathways that he makes his influence and his opinion penetrate this great body.
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So the King of France operates as an equal with the legislature, which cannot act without him, as he cannot act without it.
The President is placed beside the legislature, as an inferior and dependent power.
In the exercise of executive power strictly speaking, the point on which his position seems closest to that of the King in France, the President still remains inferior due to several very great causes.
First, the power of the King in France has the advantage of duration over that of the President. Now, duration is one of the first elements of strength. Only what must exist for a long time is loved and feared.
The President of the United States is a magistrate elected for four years. The King in France is a hereditary leader.
In the exercise of executive power, the President of the United States is constantly subject to jealous oversight. He prepares treaties, but he does not make them; he designates people for offices, but he does not appoint them.17
The King of France is the absolute master in the sphere of executive power.
The President of the United States is accountable for his actions. French law says that the person of the King of France is inviolable.
But above the one as above the other stands a ruling power, that of public opinion. This power is less defined in France than in the United States; less recognized, less formulated in the laws; but, in fact, it exists there. In America, it proceeds by elections and by decisions; in France, by revolutions. Hence France and the United States, despite the diversity of their constitutions, have this point in common: public opinion is, in effect, the dominant power.b So the generative principle of the laws is, in actual fact, the
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same among the two peoples, although its developments are more or less free, and the consequences that are drawn from it are often different. This principle, by its nature, is essentially republican. Consequently, I think that France, with its King, resembles a republic more than the Union, with its President, resembles a monarchy.
In all that precedes, I have been careful to point out only the main points of difference. If I had wanted to get into details, the picture would have been still more striking. But I have too much to say not to want to be brief.
I remarked that the power of the President of the United States, in his sphere, exercises only a limited sovereignty, while that of the King, in France, acts within the circle of a complete sovereignty.
I could have shown the governmental power of the King in France surpassing even its natural limits, however extensive they were, and penetrating into the administration of individual interests in a thousand ways.
To this cause of influence, I could join that which results from the great number of public officials, nearly all of whom owe their mandate to the executive power. This number has surpassed all known limits among us; it reaches 138,000.18 Each of these 138,000 nominations must be considered as an element of strength. The President does not have an absolute right to appoint to public positions, and those positions hardly exceed 12,000.19
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Accidental Causes That Can Increase the Influence of the Executive Power
External security that the Union enjoys.—Cautious policy.—Army of 6,000 soldiers.—Only a few ships.—The President possesses some great prerogatives that he does not have the opportunity to use.—In what he does have the opportunity to execute, he is weak.
If the executive power is less strong in America than in France, the cause must be attributed to circumstances perhaps more than to laws.
It is principally in its relations with foreigners that the executive power of a nation finds the opportunity to deploy skill and force.
If the life of the Union were constantly threatened, if its great interests were found involved daily in those of other powerful peoples, you would see the executive power grow in opinion by what would be expected of it and by what it would execute.
The President of the United States is, it is true, the head of the army, but this army is composed of 6,000 soldiers;c he commands the fleet, but the fleet numbers only a few vessels; he directs the foreign affairs of the Union, but the United States has no neighbors. Separated from the rest of the world by the ocean, still too weak to want to dominate the sea, they have no enemies; and their interests are only rarely in contact with those of the other nations of the globe.
This demonstrates well that the practice of government must not be judged by theory.
The President of the United States possesses some nearly royal prerogatives that he does not have the opportunity to use; and the rights that, up to now, he is able to use are very circumscribed. The laws allow him to be strong; circumstances keep him weak.
On the contrary, circumstances, still more than the laws, give royal authority in France its greatest strength.
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In France, the executive power struggles constantly against immense obstacles and disposes of immense resources to overcome them. It increases with the greatness of the things that it executes and with the importance of the events that it directs, without thereby modifying its constitution.
Had the laws created it as weak and as circumscribed as that of the Union, its influence would soon become very much greater.
It is an established axiom in Europe that a constitutional King cannot govern when the opinion of the legislative chambers is not in agreement with his.
Several Presidents of the United States have been seen to lose the support of the majority of the legislative body, without having to leave power, nor without causing any great harm to society.
I have heard this fact cited to prove the independence and strength of the executive power in America. A few moments of reflection are sufficient, on the contrary, to see there the proof of its weakness.
A European King needs to obtain the support of the legislative body to fulfill the task that the constitution imposes on him, because this task is immense. A European constitutional King is not only the executor of the law; the care of its 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; the gears of government stop at the moment when there is discord between them.
In America, the President cannot stop the making of laws; he cannot escape the obligation to execute them. His zealous and sincere support is undoubtedly useful, but it is not necessary to the course of government. In everything essential that he does, he is directly or indirectly subject to the legislature; where he is entirely independent of it, he can hardly do anything. So it is his weakness, and not his strength, that allows him to live in opposition to the legislative power.
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In Europe, there must be agreement between the King and the Chambers, because there can be a serious struggle between them. In America, agreement is not required, because the struggle is impossible.
Of the Election of the President
The danger of the system of election increases in proportion to the extent of the prerogatives of the executive power.—The Americans can adopt this system because they can do without a strong executive power.—How circumstances favor the establishment of the elective system.—Why the election of the President does not make the principles of government change.—Influence that the election of the President exercises on the fate of secondary officials.
The system of election, applied to the head of the executive power among a great people, presents some dangers that experience and historians have sufficiently pointed out.
Consequently, I do not want to talk about it except in relation to America.
The dangers feared from the system of election are more or less great, depending on the place that the executive power occupies and its importance in the State, depending on the method of election and the circumstances in which the people who elect are found.
Not without reason, the elective system, applied to the head of State, is criticized for offering such a great lure to individual ambitions and inflaming them so strongly in the pursuit of power that often, when legal means are no longer sufficient, they appeal to force when right happens to desert them.
It is clear that the greater the prerogatives of the executive power, the greater the lure; also, the more the 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.d
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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.
The Polish revolutions should not be attributed only to the elective system in general, but to the fact that the elected magistrate was the head of a large monarchy.e
So before discussing the absolute goodness of the elective system, there is always an intervening question to resolve, that of knowing if the geographic position, laws, habits, mores and opinions of the people among whom you want to introduce it allow you to establish a weak and dependent executive power. To want the representative of the State to be simultaneously armed with great power and elected is, to my mind, to express two contradictory desires. For my part, I know only one way to make hereditary royalty change to a state of elected power. Its sphere of action must be contracted in advance; its prerogatives gradually reduced; and little by little, the people accustomed to living without its aid. But the republicans of Europe are hardly concerned with this. Since many among them hate tyranny only because they are the objects of its rigors, the extent of executive power does not offend them; they attack only its origin, without noticing the tight bond that links these two things.
No one has yet been found who cared about risking his honor and his life to become President of the United States, because the President has only a temporary, limited and dependent power. Fortune must put an immense prize at stake in order for desperate players to enter the lists. [≠For my part, I would prefer to be Premier Ministre in France than President of the Union.≠] No candidate, until now, has been able to raise ardent sympathies and dangerous popular passions in his favor.f The reason is simple. Once at the head of the government,g he can distribute to his friends neither
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much power, nor much wealth, nor much glory; and his influence in the Stateh is too weak for factions to see their success or their ruin in his elevation to power.
Hereditary monarchies have a great advantage. Since the particular interest of a family is continually tied in a close way to the interest of the State, there is never a single moment when the latter is left abandoned to itself. I do not know if in these monarchies public affairs are better conducted than elsewhere; but at least there is always someone who takes charge for good or ill, depending on his capacity.j
In elective States, on the contrary, at the approach of the election and a long time before it happens, the gears of government no longer function, in a way, except by themselves. The laws can undoubtedly be put together so that the election takes place at one go and rapidly, and the seat of executive power never remains vacant so to speak; but no matter what is done, an empty place exists mentally despite the efforts of the law-maker.
At the approach of the election, the head of the executive power thinks only of the struggle to come; he no longer has a future; he can undertake nothing, and pursues only languidly what someone else perhaps is going to achieve. “I am so near the moment of my retirement,” wrote President Jefferson on 21 [28 (ed.)] January 1809 (six weeks before the election), “that I no longer take part in public affairs except by expressing my opinion. To me, it seems just to leave to my successor the initiation of measures that he will have to execute and for which he will have to bear responsibility.”
On its side, the nation has its eyes focused only on a single point; it is occupied only with overseeing the birth about to take place.
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The more vast the place occupied by the executive power in the leadership of public affairs, the greater and more necessary is its habitual action, and the more dangerous such a state of things is. Among a people who have contracted the habit of being governed by the executive power, and with even more reason, of being administered by it, election cannot help but produce a profound disturbance.
In the United States, the action of the executive power can slow down with impunity, because this action is weak and circumscribed.
When the head of government is elected, a lack of stability in the internal and external policies of the State almost always follows. That is one of the principal vices of this system.
But this vice is felt more or less, depending on the portion of power granted to the elected magistrate. In Rome, the principles of government never varied, although the consuls were changed annually, because the Senate was the directing power; and the Senate was an hereditary body. In most of the monarchies of Europe, if the King were elected, the kingdom would change faces with each new choice.
In America, the President exercises a fairly great influence on affairs of State, but he does not conduct them; the preponderant power resides in the whole national representation. Therefore, the mass of people must be changed, and not only the President, in order for the maxims of policy to change. Consequently, in America, the system of election, applied to the head of the executive power, does not harm the steadiness of government in a very tangible way.
The lack of steadiness is an evil so inherent in the elective system, moreover, that it still makes itself keenly felt in the President’s sphere of action, no matter how circumscribed.
Mr. Quincy Adams, when he took power, dismissed most of those appointed by his predecessor; and of all the removable officials that the federal administration uses, I do not know of a single one who was left in office by General Jackson in the first year that followed the election.k
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The Americans thought correctly that the head of the executive power, in order to fulfill his mission and bear the weight of full responsibility, had to remain free, as much as possible, to choose his agents himself and to remove them at will;m the legislative body watches over rather than directs
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the President. From that it follows that at each new election, the fate of all federal employees is as if in suspense.
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In the constitutional monarchies of Europe, the complaint is that the destiny of the obscure agents of the administration often depends on the fate of the ministers. It is even worse in States where the head of government is elected. The reason for this is simple. In constitutional monarchies, ministers replace each other rapidly; but the principal representative of the executive power never changes, which contains the spirit of innovation within certain limits. So administrative systems there vary in the details rather than in the principles; one cannot be suddenly substituted for another without causing a kind of revolution. In America, this revolution takes place every four years in the name of law.
As for the individual misfortunes that are the natural consequence of such legislation, it must be admitted that the lack of stability in the lot of officials does not produce in America the evils that would be expected elsewhere. In the United States, it is so easy to make an independent living that to remove an official from an office that he holds sometimes means taking away the comforts of life, but never the means to sustain it.
I said at the beginning of this chapter that the dangers of the mode of election, applied to the head of the executive power, were more or less great, depending on the circumstances in which the people who elect are found.
Efforts to reduce the role of the executive power are made in vain. There is something over which this power exercises a great influence, whatever the place that the laws have given it. That is foreign policy; a negotiation can hardly be started and successfully carried through except by a single man. [{Physical force can only be adequately put in motion [v: directed] by a single will.}]
The more precarious and perilous the position of a people, the more the need for consistency and stability makes itself felt in the direction of foreign
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affairs, and the more dangerous the system of election of the head of State becomes.
The policy of the Americans in relation to the whole world is simple; you would almost be able to say that no one needs them, and that they need no one. Their independence is never threatened.
So among them, the role of executive power is as limited by circumstances as by laws. The President can frequently change his views without having the State suffer or perish.
Whatever the prerogatives with which the executive power is vested, the time that immediately precedes the election and the time while it is taking place can always be considered as a period of national crisis.
The more the internal situation of a country is troubled and the greater its external perils, the more dangerous this moment of crisis is for it. Among the peoples of Europe, there are very few who would not have to fear conquest or anarchy every time that they chose a new leader.
In America, society is so constituted that it can maintain itself on its own and without help; external dangers are never pressing. The election of the President is a cause for agitation, not for ruin.
Skill which the American law-makers have demonstrated in the choice of the mode of election.—Creation of a special electoral body.—Separate vote of special electors.—In what case the House of Representatives is called to choose the President.—What has happened in the twelve elections that have taken place since the Constitution has been in force.
Apart from the dangers inherent in the principle, there are many others that arise from the very forms of election and that can be avoided by the care of the law-maker.n
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When a people gather in arms in the public square to choose a leader, it exposes itself not only to the dangers presented by the elective system itself, but also to all those of civil war which arise from such a method of election.
When Polish laws made the choice of the king depend on the veto of a single man, they invited the murder of this man or created anarchy in advance.
As you study the institutions of the United States and look more attentively at the political and social situation of this country, you notice a marvelous accord there between fortune and human efforts. America was a new country; but the people who lived there had already long made use of liberty elsewhere: two great causes of internal order. Furthermore, America had no fear of conquest. The American law-makers, taking advantage of these favorable circumstances, had no difficulty in establishing a weak and dependent executive power; having created it so, they could make it elective without risk.
Nothing remained for them to do except to choose, from among the different systems of election, the least dangerous; the rules that they drew up in this respect completed admirably the guarantees that the physical and political constitution of the country already provided.
The problem to solve was to find a mode of election that, while still expressing the real will of the people, little excited their passions and kept the people in the least possible suspense. First, they granted that a simple majority would make the law. But it was still very difficult to obtain this majority without having to fear delays that they wanted to avoid above all.
It is rare, in fact, to see a man get the majority of votes on the first try from among a large population. The difficulty increases still more in a republic of confederated states where local influences are much more developed and more powerful.
A way to obviate this second obstacle presented itself: to delegate the electoral powers of the nation to a body that represented it.
This mode of election made a majority more probable; for the fewer the electors, the easier it is for them to agree among themselves. It also presented more guarantees for a good choice.
But should the right to elect be entrusted to the legislative body itself,
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the usual representative of the nation; or, on the contrary, must an electoral college be formed whose sole purpose would be to proceed to the naming of the President?o
The Americans preferred this last option. They thought that the men sent to make ordinary laws would only incompletely represent the wishes of the people relating to the election of the first magistrate. Being elected, moreover, for more than a year, they could represent a will that had already changed. They 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 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.
So they established that each state would name a certain number of electors,20 who would in turn elect the President. And, since they had noticed that assemblies charged with choosing heads of government in elective countries inevitably became centers of passions and intrigue, that sometimes they took hold of powers that did not belong to them, and that often their operations, and the uncertainties that followed, lasted long enough to put the State in danger, they decided that the electors would all vote on a set day, but without meeting together.21
The mode of election in two stages made a majority probable, but did not guarantee it, for it could be that the electors would differ among themselves as those who named them would have differed.
In this case, the Americans were led necessarily to take one of three measures: it was necessary to have new electors named, or to consult once again those already named, or finally to refer the choice to a new authority.
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The first two methods, apart from the fact that they were not very certain, led to delays and perpetuated an always dangerous excitement.
So they settled on the third and agreed that the votes of the electors would be transmitted in secret to the president of the Senate. He would count the votes on the day fixed and in the presence of the two houses. If no candidate had gained a majority, the House of Representatives would itself proceed immediately to the election; but they took care to limit its right. The Representatives could only elect one of the three candidates who had obtained the largest number of votes.22
As you see, only in a rare case, difficult to foresee in advance, is the election left to the ordinary representatives of the nation; and even then, they can only choose a citizen already designated by a strong minority of the special electors; a happy combination, that reconciles the respect owed to the will of the people with the rapidity of execution and the guarantees of order required by the interest of the State. Yet, by making the House of Representatives decide the question, in case of division, the complete solution of all difficulties had still not been achieved; for the majority in the House of Representatives could in turn be doubtful, and this time the Constitution offered no remedy. But by establishing required candidates, by restricting their number to three, by relying on the choices of some enlightened men, it had smoothed all the obstacles23 over which it could have some power; the others were inherent in the elective system itself.p
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During the forty-five years the federal Constitution has existed, the United States has already elected its President twelve times.
Ten elections were done immediately, by the simultaneous vote of the special electors seated at different points of the territory.
The House of Representatives has used the exceptional right with which it is vested in case of division only twice. The first, in 1801, was at the time of the election of Jefferson; and the second, in 1825, when Quincy Adams was named.
The moment of the election of the President can be considered a moment of national crisis.—Why.—Passions of the people.—Preoccupation of the President.—Calm which follows the agitation of the election.
I have talked about the favorable circumstances in which the United States was found for adopting the elective system, and I have shown the precautions taken by the law-makers to reduce its dangers. The Americans are used to having all kinds of elections. Experience has taught them what level of agitation they can reach and where they must stop. The vast extent of their territory and the distribution of the inhabitants make a collision
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among the different parties less probable and less perilous than anywhere else. Until now, the political circumstances in which the nation has found itself during elections have not presented any real danger. [<Finally, the power of the President is so dependent and so limited that the passions of the candidates and those of their partisans can never be either very ardent or very long-lasting.>]
But the moment of the election of the President of the United States can still be considered a period of national crisis.
The influence that the President exercises on the course of public affairs is undoubtedly weak and indirect, but it extends over the entire nation; the choice of President has only a moderate importance for each citizen, but it matters to all citizens. Now, an interest, however small, assumes a character of great importance from the moment it becomes a general interest.
Compared to a king of Europe, the President has certainly few means to create partisans for himself; nonetheless, the places he has at his disposal are numerous enoughq for several thousands of the voters to be either directly or indirectly interested in his cause.
In the United States as elsewhere, moreover, parties feel the need to gather around a man, in order to be more easily understood by the crowd. So they generally use the name of the candidate for President as a symbol; in him, they personify their theories. Thus, parties have a great interest in determining the election in their favor, not so much for making their doctrines triumph with the help of the elected President, as for showing, by his election, that these doctrines have won the majority.
Long before the fixed moment arrives, the election becomes the greatest and, so to speak, the sole matter that preoccupies minds. Factions redouble their ardor [the administration finds itself attacked from all directions; {slanders, insults, rantings of all types are thrown lavishly against it}]; all the artificial passions that can be imagined, in a happy and tranquil country, are stirred up at this moment in full view.
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On his side, the President is absorbed by the care to defend himself. He no longer governs in the interest of the State, but in that of his re-election; he grovels before the majority; and often, instead of resisting its passions, as his duty requires, he runs ahead of its caprices.
As the election approaches, intrigues become more active; agitation, more intense and more widespread. The citizens divide into several camps, each taking the name of its candidate. The entire nation falls into a feverish state; the election is then the daily story of the public papers, the subject of individual conversations, the goal of all moves, the object of all thoughts, the sole interest of the moment. [≠The danger certainly is more apparent than real.≠]
It is true that as soon as fortune has decided, this ardor dissipates; everything becomes calm, and the river, once overflowing, retreats peacefully to its bed. But shouldn’t we be astonished that the storm could arise? [<For the choice that so strongly preoccupied the nation can influence its prosperity and its dreams only in a very indirect way; the passions that arose did not find their source in those real interests and penchants [doubtful reading (ed.)] that so profoundly trouble the human heart [v: society] [v: stirring the deepest levels of the human heart and turning society upside down to be satisfied]. For the election of the President of the United States cannot put into play any of those dangerous human passions that find their source in profound beliefs or in great positive interests.>]
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Of the Re-election of the President
When the head of the executive power is eligible for re-election, it is the State itself that schemes and corrupts.—Desire to be re-elected that dominates all the thoughts of the President of the United States.—Disadvantage of re-election, special to America.—The natural vice of democracies is the gradual subservience of all powers to the slightest desires of the majority.—The re-election of the President favors this vice.
Were the law-makers of the United States wrong or right to allow the re-election of the President?r
To prevent the head of the executive power from being re-elected seems, at first glance, contrary to reason.s We know what influence the talents or character of one man exercise over the destiny of an entire people, especially in difficult circumstances and in times of crisis. Laws that forbid citizens to re-elect their primary magistrate would deny them the best means of ensuring the prosperity of the State or of saving it. You would, moreover, arrive at this bizarre result, that a man would be excluded from the government at the very moment when he would have finally proved that he was capable of governing well.t
These reasons are certainly powerful; but can’t they be opposed by still stronger ones?u
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Intrigue and corruption are the natural vices of elective governments. But when the head of the State can be re-elected, these vices spread indefinitely and compromise the very existence of the country. When an ordinary candidate wants to succeed by intrigue, his maneuvers can only be
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extended over a circumscribed space. When, on the contrary, the head of the State himself gets into the fray, he borrows for his own use the strength of the government.v
In the first case, it is one man with his limited means; in the second, it is the State itself with its immense resources that schemes and corrupts.
The ordinary citizen who uses reprehensible maneuverings to gain power can harm public prosperity only in an indirect manner; but if the representative of the executive power enters the lists, concern for the government becomes, for him, something of secondary interest; the main interest is his election. Negotiations, like laws, are, for him, nothing more than electoral schemes; positions become recompense for services rendered, not to the nation, but to its leader. Even if the action of the government would not always be contrary to the interest of the country, it would at least no longer serve it. Yet the action of the government is undertaken for its use alone.
It is impossible to consider the ordinary course of affairs in the United States, without noticing that the desire to be re-elected dominates the thoughts of the President; that the entire policy of his administration leads to this point; that his smallest steps are subordinated to this end; that above all, as the moment of crisis approaches, individual interest replaces general interest in his mind.
So the principle of re-election makes the corrupting influence of elective government more widespread and more dangerous. It tends to degrade the political morality of the people and to replace patriotism with cleverness.
In America, it attacks the sources of national existence even more fundamentally.
Every government carries within itself a natural vice that seems attached to the very principle of its life; the genius of the law-maker is to discern
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this well.w A State can overcome many bad laws, and the evil they cause is often exaggerated. But every law whose effect is to develop this seed of death cannot miss becoming fatal in the long run, even if its bad effects do not immediately make themselves felt.
The principle of ruin in absolute monarchies is the unlimited and unreasonable expansion of royal power. A measure that removes the counterweight that the constitution left to this power would therefore be radically bad, even if its effects seemed unnoticeable for a long time.
In the same way, in countries where democracy governs and where the people constantly draw everything to themselves, laws which make their action more and more immediate and irresistible attack, in a direct way, the existence of the government.
The greatest merit of the American law-makers is to have seen this truth clearly and to have had the courage to put it into practice. [{The greatest glory of this people is to have known how to appreciate it and to submit themselves to it.}]
They understood that beyond the people there needed to be a certain number of powers that, without being completely independent of the people, nonetheless enjoyed in their sphere a fairly large degree of liberty; so, though forced to obey the permanent direction of the majority, they could nevertheless struggle against its caprices and refuse its dangerous demands.
To this effect, they concentrated all the executive power of the nation in one pair of hands; they gave the President extensive prerogatives, and armed him with a veto, to resist the encroachments of the legislature.x
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But by introducing the principle of re-election, they have partially destroyed their work. They have granted great power to the President, and have taken from him the will to use it.
Not re-eligible, the President was 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.
Thus, in order not to deprive the State of the talents of one man, they have rendered his talents almost useless; and to arrange for a resource in extraordinary circumstances, they have exposed the country to daily dangers.y
Political importance of the judicial power in the United States.—Difficulty in treating this subject.—Utility of the judicial system in confederations.—What courts could the Union
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use?—Necessity of establishing federal courts of justice.—Organization of the federal judicial system.—The Supreme Court.—How it differs from all the courts of justice that we know.
I have examined the legislative power and the executive power of the Union. It still remains for me to consider the judicial power.
Here I must reveal my fears to readers.
The judicial institutions exercise a great influence on the destiny of the Anglo-Americans; they hold a very important place among political institutions properly so called. From this point of view, they particularly merit our attention.
But how to make the political action of the American courts understood, without entering into some of the technical details of their constitution and of their forms; and how to get into the details without discouraging, by the natural dryness of such a subject, the curiosity of the reader? How to remain clear and still be concise?
[<So I have said only what I believed indispensable for someone to judge the political action of courts within the confederation.> So often, I have assumed the reader’s pre-existent ideas on the administration of justice among the people of the English race; even more often I counted on him searching in the sources that I point out in order to fill out my ideas. In a word, I have said only what I believed indispensable for someone to be able to understand the political action of the federal courts.]
I do not flatter myself that I have escaped these different dangers. Men of the world will still find that I go on too long; legal specialists will think that I am too brief. But that is a disadvantage connected to my subject in general and to the special matter that I am treating at this moment.
The greatest difficulty was not to know how the federal government would be constituted, but how obedience to its laws would be assured.
Governments generally have only two means to overcome the efforts of the governed to resist them: the physical force that they find within themselves; the moral force that the decisions of the courts bestow on them.
A government that would have only war to enforce obedience to its laws would be very close to its ruin. One of two things would probably happen to it. If it were weak and moderate, it would use force only at the last extremity
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and would let a host of incidents of partial disobedience go by unnoticed; then the State would fall little by little into anarchy.
If it were audacious and powerful, it would resort daily to the use of violence, and soon you would see it degenerate into pure military despotism. Its inaction and its action would be equally harmful to the governed.
The great object of justice is to substitute the idea of law for that of violence; to place intermediaries between the government and the use of physical force.
The power of opinion generally granted by men to the intervention of the courts is something surprising. This power is so great that it is still attached to judicial form when the substance no longer exists; it gives flesh to the shadow.
The moral force with which the courts are vested renders the use of physical force infinitely rarer, substituting for it in most cases; and when, finally, physical force must be exerted, its power is doubled by the moral force that is joined with it.
A federal government, more than another government, must desire to obtain the support of the judicial system, because it is weaker by its nature; and efforts at resistance can more easily be organized against it.25 If it always and immediately had to resort to the use of force, it would not be adequate to its task.z
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To make citizens obey its laws, or to repel the aggressions that would be directed against it, the Union therefore had a particular need for courts.
But what courts could it use? Each state already had a judicial power organized within it. Would it be necessary to resort to these courts? Would it be necessary to create a federal judicial system? It is easy to prove that the Union could not adapt to its use the judicial power established in the states.
It is undoubtedly important to the security of each person and to the liberty of all that the judicial power should be separated from all the others; but it is no less necessary to national existence that the different powers of the State have the same origin, follow the same principles and act in the same sphere, in a word, that they are correlative and homogeneous. No one, I imagine, has ever thought to have crimes committed in France judged by foreign courts in order to be more certain of the impartiality of the magistrates.
The Americans form only a single people, in relation to their federal government. But in the midst of this people, political bodies, dependent on the national government on certain points and independent on all the others, have been allowed to continue to exist; they have their particular origins, their own doctrines and their special means of action. To entrust the enforcement of the laws of the Union to courts instituted by these political bodies, was to deliver the nation to foreign judges.
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Even more, each state is not only a foreigner in relation to the Union, but it is also a daily adversary, since the sovereignty of the Union can only be lost to the profit of that of the states.
So by having the laws of the Union applied by the courts of the individual states, the nation would be delivered, not only to foreign judges, but also to partial judges.
It was not their character alone, moreover, that made the state courts incapable of serving a national end; it was above all their number.
At the moment when the federal Constitution was formed, there were already in the United States thirteen supreme courts of justice from which there was no appeal. Today they number twenty-four. How to accept that a State can endure when its fundamental laws can be interpreted and applied in twenty-four different ways at once! Such a system is as contrary to reason as to the lessons of experience.
So the law-makers of America agreed to create a federal judicial power, in order to apply the laws of the Union and to decide certain questions of general interest which were carefully defined in advance.
All of the judicial power of the Union was concentrated in a single tribunal called the Supreme Court of the United States. But to facilitate the dispatch of affairs, inferior courts were added to assist and were charged with judging with sovereign power cases of little importance or with ruling on more important disputes in the first instance. The members of the Supreme Court were not elected by the people or the legislature; the President of the United States had to choose them with the advice of the Senate.
In order to make them independent of the other powers, they were made irremovable, and it was decided that their salary, once fixed, would be beyond the control of the legislature.26
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It was easy enough to proclaim the establishment of a federal judicial system in principle, but a host of difficulties arose the moment its attributions had to be set.
Way of Determining the JurisdictionTN 5 of the Federal Courts
Difficulty of determining the jurisdiction of the various courts in confederations.—The courts of the Union given the right to determine their own jurisdiction.—Why this rule attacks the portion of sovereignty that the individual states reserved to themselves.—The sovereignty of these states limited by laws and
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by the interpretation of laws.—The individual states thus risk a danger more apparent than real.
A first question arose. The Constitution of the United States set up, face to face, two distinct sovereignties, represented in terms of judicial structure by two different court systems; no matter what care was taken to establish the jurisdiction of each of these two court systems, you could not prevent frequent conflicts between them. Now, in this case, who would have the right to establish jurisdiction?
Among peoples who form only one and the same political society, when a question of jurisdiction arises between two courts, it is usually brought before a third that serves as arbiter.
This is easily done because, among these peoples, questions of judicial jurisdiction do not have any relation to questions of national sovereignty.
But above the highest court of an individual state and the highest court of the United States, it was impossible to establish any kind of court that was not either one or the other.
So one of these two courts had to be given the right to judge in its own case and to take or accept cognizance of the matter in dispute. This privilege could not be granted to the various courts of the states; that would have destroyed the sovereignty of the Union in fact, after having established it in law; for interpretation of the Constitution would soon have given back to the individual states the portion of independence that the terms of the Constitution took away from them.
By creating a federal court, the desire had been to remove from the courts of the states the right to settle, each in its own way, questions of national interest and, by doing so, to succeed in shaping a uniform body of jurisprudence for the interpretation of the laws of the Union. The goal would not have been reached at all if the courts of the individual states, while abstaining from judging cases considered federal, had been able to judge them by pretending that they were not federal.
The Supreme Court of the United States was therefore vested with the right to decide all questions of jurisdiction.27
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That was the most dangerous blow brought against the sovereignty of the states. It thus found itself limited not only by the laws, but also by the interpretation of the laws; by a known limit and by another that was unknown; by a fixed rule and by an arbitrary one. It is true that the Constitution had set precise limits to federal sovereignty; but each time this sovereignty is in competition with that of the states, a federal court must decide.
The dangers, moreover, with which this way of proceeding seemed to menace the sovereignty of the states were not as great in reality as they appeared to be.
We will see further along that, in America, real strength resides more in the provincial governments than in the federal government. Federal 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.
Different Cases of Jurisdiction
The matter and the person, bases of federal jurisdiction.—Proceedings against ambassadors,—against the Union,—against an individual state.—Judged by whom.—Proceedings that arise from the laws of the Union.—Why judged by the federal courts.—Proceedings relating to breach of contracts judged by the federal judicial system.—Consequence of this.
After having recognized the means to set federal jurisdiction, the law-makers of the Union determined the cases in which that jurisdiction must be exercised.
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They acknowledged that there were certain litigants who could only be judged by the federal courts, no matter what the subject of the proceedings.
They then established that there were certain proceedings that could only be decided by these same courts, no matter what the qualification of the litigants.
So the person and the matter became the two bases of federal jurisdiction.
Ambassadors represent nations friendly to the Union; everything that involves ambassadors involves in a way the entire Union. When an ambassador is party to a legal proceeding, the proceeding becomes an affair that touches on the welfare of the nation; it is natural that a federal court decides.
The Union itself can be the subject of proceedings; in this case, it would have been contrary to reason as well as to the custom of nations, to bring it for judgment before courts representing a sovereignty other than its own. It is for the federal courts alone to decide.
When two individuals, belonging to two different states, have a legal proceeding, you cannot, without disadvantage, have them judged by the courts of one of the two states. It is safer to choose a court that cannot incite the suspicion of any of the parties, and the court that very naturally presents itself is that of the Union.
When the two litigants are no longer isolated individuals, but states, this reason for equity is joined by a political reason of the first order. Here the status of the litigants gives a national importance to all proceedings; the smallest litigious issue between two states involves the peace of the entire Union.28
Often the very nature of the proceedings must serve as a rule of jurisdiction.
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Thus all questions that are related to maritime commerce must be settled by federal courts.29
The reason is easy to point out: nearly all these questions get into an estimation of the law of nations. From this perspective, they essentially involve the whole Union in relation to foreigners. Since the sea, moreover, does not fall into one judicial circumscription rather than another, only the national court system can have a claim on legal proceedings that have a maritime origin.
The Constitution has enclosed in a single category nearly all the proceedings that, by their nature, must be under the jurisdiction of the federal courts.
In this regard, the rule that it indicates is simple, but it comprises in itself alone a vast system of ideas and a multitude of facts.
The federal courts, it says, must judge all proceedings that arise in the laws of the United States.
Two examples will make the thought of the law-maker perfectly clear.
The Constitution forbids the states the right to make laws on the circulation of money; despite this prohibition, a state makes such a law. Interested parties refuse to obey it, understanding that it is contrary to the Constitution. The matter must be brought before a federal court, because the grounds for the case are drawn from the laws of the United States.
Congress establishes a tariff law. Difficulties arise over the understanding of this law. Again, the matter must be presented before the federal courts, because the cause for the proceeding is in the interpretation of a law of the United States.
This rule is in perfect agreement with the bases adopted for the federal Constitution.
The Union, as constituted in 1789, had, it is true, only a limited sovereignty, but the desire was that, within this circle, the Union formed only one and the same people.30 Within this circle, it is sovereign. This point
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set forth and accepted, all the rest becomes easy; for if you recognize that the United States, within the limits posed by their Constitution, form only one people, the rights belonging to all peoples must surely be granted to them.
Now, since the origin of societies, this point is agreed upon: each people has the right to have all questions relating to the enforcement of its own laws judged by its courts. But you answer: the Union is in the singular position that it forms one people only relative to certain matters; for all others, it is nothing. What is the result? At least for all the laws that relate to these matters, the Union has the rights that would be granted to complete sovereignty. The real point of difficulty is knowing what those matters are. This point settled (and we have seen above, while treating jurisdiction, how it was settled), no question truly speaking remains; for once you have established that a proceeding was federal, that is, came within the portion of sovereignty reserved to the Union by the Constitution, it naturally followed that a federal court alone would decide.
So whenever someone wants to attack the laws of the United States, or invoke them in self-defense, it is the federal courts that must be addressed.
Thus, the jurisdiction of the courts of the Union expands or contracts depending on whether the sovereignty of the Union itself expands or contracts.
We have seen that the principal aim of the law-makers of 1789 had been to divide sovereignty into two distinct portions. In one, they placed the direction of all the general interests of the Union; in the other, the direction of all the interests particular to some of its parts.
Their principal concern was to arm the federal government with enough power for it to be able to defend itself, within its sphere, against the encroachments of the individual states.
As for the latter, the general principal adopted was to leave them free in their sphere. Within that sphere, the central government can neither direct them nor even inspect their conduct.
I have indicated in the chapter on the division of powers that this last principle had not always been respected. There are certain laws that an individual state cannot enact, even though the laws apparently involve only that state.
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When a state of the Union enacts a law of this nature, the citizens who are harmed by the execution of this law can appeal to the federal courts.b
Thus, the jurisdiction of the federal courts extends not only to all the proceedings that have their source in the laws of the Union, but also to all those that arise in the laws that the individual states have enacted unconstitutionally.
The states are forbidden to promulgate ex post facto laws in criminal matters; the man who is sentenced by virtue of a law of this type can appeal to the federal judicial system.
The Constitution also forbids the states to make laws that can destroy or alter rights acquired by virtue of a contract (impairing the obligations [sic: obligation] of contracts).31
From the moment when an individual believes that he sees a law of his state that harms a right of this type, he can refuse to obey and appeal to the federal justice system.32
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To me, this disposition seems to attack the sovereignty of the state more profoundly than all the rest.c
The rights granted to the federal government, for ends clearly national, are defined and easy to understand. Those that are indirectly conceded to it by the article that I have just cited are not easily felt, and their limits are not easily traced. There is, in fact, a multitude of political laws that act upon the existence of contracts, and that could therefore furnish grounds for encroachment by the central power.
The Federal Courts’ Way of Proceeding
Natural weakness of the judicial system in confederations.—Efforts that law-makers must make to place, as much as possible, only isolated individuals and not states before the federal courts.—How the Americans succeeded in doing this.—Direct action of the federal courts on ordinary individuals.—Indirect attack against states that violate the laws of the Union.—The decision of the federal judicial system does not destroy provincial law; it enervates it.
I have made known the rights of the federal courts; it is no less important to know how they are exercised.
The irresistible strength of the judicial system, in countries where sovereignty is not divided, comes from the fact that, in those countries, the courts represent the entire nation in a contest with a single individual who has been struck by a judgment. To the idea of law is joined the idea of the force that supports the law.
But in countries where sovereignty is divided, it is not always so. There, the judicial system most often finds itself facing, not an isolated individual,
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but a fraction of the nation. Its moral power and its physical power are diminished as a result.
So in federal States, the judicial system is naturally weaker; and the one subject to trial, stronger.
The law-maker, in confederations, must constantly work to give the courts a position analogous to the one they occupy among peoples who have not divided sovereignty. In other words, his most constant efforts must strive toward having the federal judicial system represent the nation, and having the one subject to trial represent an individual interest.
A government, whatever its nature, needs to act on the governed in order to force them to give the government what it is owed; it needs to take action against them in order to defend itself from their attacks.
As for the direct action of the government on the governed, in order to force them to obey the law, the Constitution of the United States saw to it that the federal courts, acting in the name of these laws, never had any dealing except with individuals (and that was its highest achievement). In fact, since it had been declared that the confederation formed only one and the same people within the circle drawn by the Constitution, the government, created by this Constitution and acting within its limits, was, as a result, vested with all the rights of a national government, the principal one being to have its injunctions reach ordinary citizens without an intermediary. So when the Union levied a tax, for example, it did not have to apply to the states to collect it, but to each American citizen, according to his share. In turn, the federal judicial system charged with assuring the enforcement of this law of the Union, had to condemn not the recalcitrant State, but the taxpayer. Like the judicial system of other peoples, it found only an individual facing it.d
Note that here the Union itself has chosen its adversary. It has chosen a weak one; it is entirely natural that he succumbs.
But when the Union, instead of attacking, is reduced to defending itself, the difficulty increases. The Constitution recognizes the power of the states
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to make laws. These laws can violate the rights of the Union. Here, necessarily, the Union finds itself in conflict with the sovereignty of the state that enacted the law. Nothing remains except to chose, from among the means of action, the least dangerous. This means was indicated in advance by the general principles that I stated before.33
You see that, in the case that I have just supposed, the Union would have been able to cite the state before a federal court that would have declared the law void; this would have followed the most natural course of ideas. But, in this way, the federal judicial system would have found itself directly facing a state, something it wanted to avoid as much as possible.
The Americans have thought that it was nearly impossible for a new law, in its execution, not to harm some individual interest.
It is on this individual interest that the authors of the federal constitution rely to attack a legislative measure about which the Union could complain. To this individual interest, they offer a protection.
A state sells lands to a company; one year later, a new law disposes of the same lands in another way, and thus violates the part of the Constitution which forbids changing rights vested by contract. When the one who bought by virtue of the new law presents himself in order to take possession, the owner, who holds his rights from the former law, brings an action before the courts of the Union and has the title of the new owner voided.34 Therefore, in reality, the federal judicial system is grappling with the sovereignty of the state; but it attacks that sovereignty only indirectly and on an application of detail. It thus strikes the law in its consequences, not in its principle. It does not destroy the law; it enervates it.
A final hypothesis remained.
Each state formed a corporation that had a separate existence and separate civil laws; consequently, it could sue or be sued before the courts. A state could, for example, bring suit against another state.
In this case, it was no longer a matter for the Union of attacking a provincial law, but of judging a case in which a state was a participant. It was
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a case like any other; only the status of the litigants was different. Here the danger noted at the beginning of this chapter still exists. But this time it cannot be avoided; it is inherent in the very essence of federal constitutions that they will always result in creating, in the midst of the nation, individuals powerful enough to make it difficult to use the judicial system against them.
Elevated Rank That the Supreme Court Occupies among the Great Powers of the State
No other people have constituted a judicial power as great as the Americans.—Extent of its attributions.—Its political influence.—The peace and the very existence of the Union depend on the wisdom of seven federal judges.
When, after examining the organization of the Supreme Court in detail, you come to consider all of the attributions that it has been given, you easily discover that never has a more immense judicial power been constituted among any people.
The Supreme Court is placed higher than any known court, both by the nature of its rights and by the type of those subject to trial.
In all the civilized nations of Europe, the government has always shown a great reluctance to allow the ordinary judicial system to decide questions that involve the government itself. This reluctance is naturally greater when the government is more absolute. As liberty increases, on the contrary, the circle of the attributions of the courts is always going to widen; but not one of the European nations has yet thought that every judicial question, of no matter what origin, could be left to judges of ordinary law.
In America, this theory has been put in practice. The Supreme Court of the United States is the one and only national court.
It is charged with the interpretation of laws and of treaties; questions relating to maritime trade, and all those generally relating to the law of nations, are exclusively within its competence. You can even say that its attributions are almost entirely political, although its constitution is entirely
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judicial. Its unique purpose is to have the laws of the Union enforced. And the Union determines only the relations of the government with the governed and of the nation with foreigners; nearly all of the relations of citizens among themselves are governed by the sovereignty of the states.
To this first cause of importance, another still greater must be added. In the nations of Europe, only individuals are subject to trial before the courts; but you can say that the Supreme Court of the United States makes sovereigns appear before it. When the bailiff, climbing the steps of the court, comes to proclaim these few words: “The State of New York versus the State of Ohio,” you feel that you are not within the realm of an ordinary court of justice. And when you consider that one of these litigants represents a million men, and the other, two million, you are astonished at the responsibility that weighs upon the seven judges whose decision is going to delight or sadden such a large number of their fellow citizens.
In the hands of seven federal judges rest unceasingly the peace, prosperity, the very existence of the Union. Without them, the Constitution is a dead letter. To them, the executive power appeals in order to resist the encroachments of the legislative body; the legislature, to defend itself against the undertakings of the executive power; the Union, to make the states obey; the states, to repulse the exaggerated pretensions of the Union; public interest against private interest; the spirit of conservation against democratic instability. Their power is immense; but it is a power of opinion. They are omnipotent as long as the people consent to obey the law; they can do nothing once the people scorn the law. Now, the power of opinion is the most difficult one to exercise, because it is impossible to know its limits exactly. Often it is as dangerous to fall short, as to go beyond those limits.
So the federal judges must be not only good citizens, learned and upright men, qualities necessary for all magistrates, but they must also be statesmen; they must know how to discern the spirit of the times, to brave the obstacles that can be overcome, and to change direction when the current threatens to carry away, with them, the sovereignty of the Union and the obedience due to its laws.
The President can fail without having the State suffer, because the President has only a limited duty. Congress can go astray without having the
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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 came to compose the Supreme Court, the confederation would have to fear anarchy or civil war.
But make no mistake; the root cause of the danger is not in the constitution of the court, but in the very nature of federal governments. We have seen that nowhere is it more necessary to constitute a strong judicial power than among confederated peoples, because nowhere are individual existences, which can struggle against the social body, greater and in better condition to resist the use of the physical force of the government.
Now, the more necessary it is that a power be strong, the more scope and independence it must be given. The more extensive and independent a power, the more dangerous is the abuse that can be made of it. So the origin of the evil is not in the very constitution of this power, but in the very constitution of the State that necessitates the existence of such a power.
How the Federal Constitution Is Superior to the State Constitutions
How the Constitution of the Union can be compared to those of the individual states.—The superiority of the federal Constitution must be attributed particularly to the wisdom of the federal law-makers.—The legislature of the Union less dependent on the people than those of the states.—The executive power freer in its sphere.—The judicial power less subject to the desires of the majority.—Practical consequences of this.—The federal law-makers have mitigated the dangers inherent in democratic government; the law-makers of the states have heightened these dangers.
The federal Constitution differs essentially from the constitutions of the states in the purpose that it intends, but it is highly similar in the means to achieve this purpose. The object of government is different, but the forms of government are the same. From this special point of view, they can usefully be compared.
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I think that the federal Constitution is superior to all of the state constitutions. This superiority stems from several causes.
The present Constitution of the Union was formed only after those of most of the states; so the Union could profit from acquired experience.
You will be convinced, nonetheless, that this cause is only secondary, if you consider that, since the establishment of the federal Constitution, the American confederation has increased by eleven new states, and that these new states have nearly always exaggerated rather than mitigated the defects existing in the constitutions of their precursors.
The great cause of the superiority of the federal Constitution is in the very character of the law-makers.
At the time when it was formed, the ruin of the American confederation seemed imminent; it was obvious to all, so to speak. In this extremity, the people chose, perhaps not the men they loved most, but those they respected most.
I have already pointed out above that nearly all the law-makers of the Union had been remarkable by their enlightenment and more remarkable still by their patriotism.
They had all risen in the midst of a social crisis, during which the spirit of liberty had constantly to struggle against a strong and dominating authority. When the struggle ended, and while the excited passions of the crowd were, as usual, still fixed on combating dangers that for a long time no longer existed, these men had stopped; they had cast a calmer and more penetrating eye on their country; they had seen that a definitive revolution was accomplished, and that henceforth the perils that threatened the people could only arise from the abuses of liberty.e What they thought, they had the courage to say, because deep in their hearts they felt a sincere and passionate love for this very liberty; they dared to speak of limiting it, because they were certain of not wanting to destroy it.35
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Most of the constitutions of the states give a term of one year to the house of representatives and two years to the senate. In this way the members of the legislative body are tied constantly and in the closest way to the slightest desires of their constituents.
The law-makers of the Union thought that this extreme dependence of the legislature distorted the principal effects of the representative system, by placing in the people themselves not only the source of powers, but also the government.
They increased the length of the electoral mandate in order to allow the deputy greater use of his free will.
The federal Constitution, like the different constitutions of the states, divided the legislative body into two branches.
But in the states, these two parts of the legislature were composed of the same elements and followed the same mode of election. As a result, the
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passions and will of the majority emerged as easily and found an organ and an instrument as rapidly in one as in the other of the houses. This gave a fierce and hasty character to the making of laws.
The federal Constitution also had the two houses come out of the votes of the people; but it varied the conditions of eligibility and the mode of election. So, if one of the two legislative branches did not represent interests different from those represented by the other, as in certain nations, at least it represented a higher wisdom.
To be a Senator you had to have reached a mature age; and a small assembly, itself already elected, was charged with the election.
Democracies are naturally led to concentrate all social force in the hands of the legislative body. The latter, being the power that comes most directly from the people, is also the one that most partakes of the omnipotence of the people.
So, in the legislative body, you notice an habitual tendency that leads it to gather all kinds of authority within itself.
This concentration of powers, at the same time that it singularly harms the good management of public affairs, establishes the despotism of the majority.
The law-makers of the states have frequently surrendered to these democratic instincts; those of the Union always fought courageously against them.
In the states, executive power is placed in the hands of a magistrate who appears to be placed alongside the legislature, but who, in reality, is only a blind agent and passive instrument of its will. From where would he draw his strength? In the length of his term in office? Generally, he is named for only one year. In his prerogatives? He has, so to speak, none at all. The legislature can reduce him to impotence by granting the execution of its laws to special committees drawn from its midst. If it wanted, it could, in a way, nullify him by taking away his salary.
The federal Constitution has concentrated all the rights of the executive power, as well as all of its responsibility, in a single man. It gave the President a four-year term; it assured him his salary during the entire length of his term in office; it created a group of supporters for him and armed him with a qualified veto. In a word, after carefully drawing the sphere of executive
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power, it sought, within this sphere, to give the executive power as strong and as free a position as possible.
The judicial power, of all the powers, is the one that, in the state constitutions, remained least dependent on the legislative power.
Nonetheless, in all the states, the legislature retained the authority to set the salaries of judges, which necessarily subjected the former to immediate legislative influence.
In certain states, judges are appointed only for a time, which again removes a large part of their strength and freedom.
In others, legislative and judicial powers are entirely mixed. The Senate of New York, for example, serves as the highest court of the state for certain trials.
The federal Constitution has, on the contrary, carefully separated the judicial power from all the others. In addition, it made judges independent by declaring their salaries fixed and making their office irrevocable.
The practical consequences of these differences are easy to see. It is clear to all attentive observers that the affairs of the Union are conducted infinitely better than the particular affairs of any state.
The federal government is more just and more moderate in its action than the state governments. There is more wisdom in its views, more continuity and intelligent design in its projects, more skill, steadiness and firmness in the execution of its measures.
A few words suffice to summarize this chapter.
Two principal dangers menace the existence of democracies:
The complete subservience of the legislative power to the will of the electoral body.
The concentration, in the legislative power, of all the 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.
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The American confederation outwardly resembles all confederations.—Its effects are different, however.—What causes that?—How this confederation stands apart from all others.—The American government is not a federal government, but an incomplete national government. f
The United States of America has not presented the first and only example of a confederation. Without mentioning antiquity, modern Europe has furnished several. Switzerland, the German Empire, the Dutch Republic have been or still are confederations.
When you study the constitutions of these different countries, you notice with surprise that the powers they confer on the federal government are more or less the same as those granted by the American Constitution to the government of the United States. Like the latter, they give the central power the right to make war or peace, the right to raise an army, to levy taxes, to provide for general needs and to regulate the common interests of the nation.
Among these different peoples, however, the federal government has almost always remained deficient and weak, while that of the Union conducts public affairs with vigor and ease.
Even more, the first American Union could not continue to exist because of the excessive weakness of its government. Yet this government, so weak,
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had received rights as extensive as the federal government of today. You can even say that in certain respects its privileges were greater.g
So several new principles are found in the current Constitution of the United States that are not striking at first, but make their influence profoundly felt.
This Constitution, which at first sight you are tempted to confuse with previous federal constitutions, rests as a matter of fact on an entirely new theory that must stand out as a great discovery in the political science of today.
In all the confederations that have preceded the American confederation of 1789, peoples who combined for a common purpose 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.
The American states that united in 1789 agreed not only that the federal government could dictate laws to them, but also that the federal government itself would execute its laws.
In the two cases, the right is the same; only the exercise of the right is different. But this single difference produces immense results. [Such is the power of laws over the fate of societies.]h
In all the confederations that have preceded the American Union of today, the federal government, in order to provide for its needs, applied to the individual governments. In the case where the prescribed measure displeased one of them, the latter could always elude the need to obey. If it was strong it appealed to arms; if it was weak, it tolerated a resistance to the laws of the Union that had become its own, pretended weakness and resorted to the power of inertia.
Consequently, one of these two things has constantly happened: the
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most powerful of the united peoples, taking hold of the rights of the federal authority, has dominated all the others in its name;36 or the federal government has been left to its own forces. Then anarchy has become established among the confederated peoples, and the Union has fallen into impotence.37
In America, the Union governs not the states, but ordinary citizens. When it wants to levy a tax, it does not apply to the government of Massachusetts, but to each inhabitant of Massachusetts. Former federal governments faced peoples; the Union faces individuals. It does not borrow its strength, but draws upon its own. It has its own administrators, courts, officers of the law, and army.
Certainly the national [sic: state] spirit, collective passions, provincial prejudices of each state still strongly tend to diminish the extent of federal power so constituted, and to create centers of resistance to the will of the federal power. Limited in its sovereignty, it cannot be as strong as a government that possesses complete sovereignty; but that is an evil inherent in the federal system.
In America, each state has far fewer opportunities and temptations to resist; and if the thought occurs, the state can act on it only by openly violating the laws of the Union, by interrupting the ordinary course of justice, and by raising the standard of revolt. In a word, it must suddenly take an extreme position, something men hesitate to do for a long time.
In former confederations, the rights granted to the Union were causes of war rather than of power, since these rights multiplied its demands without augmenting its means of enforcing obedience. Consequently, the real weakness of federal governments has almost always been seen to grow in direct proportion to their nominal power.
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This is not so for the American Union; the federal government, like most ordinary governments, can do everything that it has the right to do.
The human mind invents things more easily than words; this is what causes the use of so many incorrect terms and incomplete expressions.j
Several nations form a permanent league and establish a supreme authority that, without acting on ordinary citizens as a national government could, nonetheless acts on each of the confederated peoples, taken as a group.
This government, so different from all the others, is given the name federal.
Next, a form of society is found in which several peoples truly blend together as one for certain common interests, and remain separate and only confederated for all the others.
Here the central power acts without intermediary on the governed, administering and judging them as national governments do, but it acts this way only within a limited circle. Clearly that is no longer a federal government; it is an incomplete national government. So a form of government, neither precisely national nor federal, is found. But here things have stopped, and the new word needed to express the new thing does not yet exist.k
Because this new type of confederation was unknown, all unions have arrived at civil war, or slavery, or inertia. The peoples who composed them have all lacked either the enlightenment to see the remedy to their ills, or the courage to apply them.
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The first American Union had also lapsed into the same faults.
But in America, the confederated states, before achieving independence, had been part of the same empire for a long time; so they had not yet contracted the habit of complete self-government, and national prejudices had not been able to become deeply rooted. Better informed than the rest of the world, they were equal to each other in enlightenment; they only weakly felt the passions that ordinarily, among peoples, resist the extension of federal power; and these passions were fought against by the greatest citizens. The Americans, at the same time that they felt the evil, resolutely envisaged the remedy. They corrected their laws and saved the country.
Of the Advantages of the Federal System in General, and of Its Special Utility for America m
Happiness and liberty that small nations enjoy.—Power of large nations.—Large empires favor the developments of civilization.—That strength is often the first element of prosperity for nations.—The purpose of federal systems is to combine the advantages that peoples gain from the largeness and the smallness of their territory.—Advantages that the United States derives from this system.—The law yields to the needs of the populations; the populations do not yield to the necessities of the law.—Activity, progress, taste for and practice of liberty among the American peoples.—The public spirit of the Union is only the sum of provincial patriotism.—Things and ideas circulate freely within the territory of the United States.—The Union is free and happy, like a small nation; respected, like a large one.
Among small nations, society keeps its eye on everything; the spirit of improvement gets down to the smallest details. Since the weakness of the people profoundly tempers their ambition, their efforts and resources are
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almost entirely focused on their internal well-being and are not likely to be wasted on the empty illusion of glory. Since the capacities of each one are generally limited, desires are limited as well. The mediocrity of wealth makes conditions nearly equal; and mores have a simple and peaceful air. Thus, considering everything and taking into account various degrees of morality and enlightenment, more comfort, population and tranquillity are usually found in small nations than in large ones.
When tyranny establishes itself within a small nation, it is more troublesome than anywhere else; acting inside a smaller circle, it extends to everything within this circle. Unable to undertake some great objective, it is busy with a multitude of small ones; it appears both violent and meddle-some. From the political world, which is strictly speaking its domain, it penetrates into private life. After dictating actions, it aspires to dictate tastes; after governing the State, it wishes to govern families. But that rarely happens; as a matter of fact, liberty forms the natural condition of small societies. There, government offers too little attraction to ambition, and the resources of individuals are too limited, for sovereign power to be easily concentrated in the hands of one man.n Should it happen, it is not difficult for the governed to unite together and, by a common effort, to overthrow the tyrant and the tyranny at the same time. [≠Liberty is, moreover, something so natural and so easy within a small nation that abuse can hardly be brought about.≠]
So small nations have at all times been the cradle of political liberty. It has happened that most of them have lost this liberty by growing larger, which clearly reveals that liberty is due to the small size of a people and not to the people themselves.
The history of the world provides no example of a large nation that remained a republic for long;38 this has led men to say that the thing was impractical. As for me, I think that it is very imprudent for man to want to limit the possible and to judge the future; the real and the present elude
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him every day, and he finds himself constantly surprised by the unexpected in the things he knows best. What can be said with certainty is that the existence of a large republic will always be infinitely more at risk than that of a small one.o
All the passions fatal to republics grow with the extent of the territory, while the virtues that serve to support them do not increase in the same measure.p
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. But to these dangers, republican government can oppose only the support of the majority. Now, this element of strength is not proportionately more powerful in a vast republic than in a small one. Thus, while the means of attack constantly increase in number and power, the strength of resistance remains the same. It can even be said that it decreases, for the more numerous the people and the more varied the nature
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of minds and interests, the more difficult it is, as a result, to form a compact majority.
[≠Republican government is fragile by nature. It lasts much more because of the weakness of the attacks directed against it than because of a strength of its own [v: its own power]. It relies only on a certain sentiment of order, virtue and moderation on the part of the governed. The immoderate desires of parties, great riches and great poverty, vast cities, and the profound corruption of mores that they engender, constantly threaten the existence of republics. Now, all of these things are found only among large nations alone. A government that has the source of its power outside of the people can continue to exist for a long time, whatever the opinions of the people; but a republican government has strength only in the support of the majority; the more numerous the people, the harder to form a majority. Here my reasoning is based only upon a numerical calculation.≠]
We have been able to note, moreover, that human passions acquired intensity, not only from the greatness of the end that they wanted to attain, but also from the multitude of individuals who felt them at the same time. There is no one who does not find himself more moved in the middle of an agitated crowd that shares his emotion than if he were to feel it alone. In a large republic, 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.
So it is permissible to say that, in general, nothing is so contrary to the well-being and to the liberty of men as large empires.
Large States have particular advantages, however, that must be recognized.
In them, the desire for power is more passionate among common men than elsewhere. So too the love of glory there is more developed among certain souls who find in the applause of a great people an objective that is worthy of their efforts and appropriate for raising them, in a way, above themselves. There, thought in all fields is given a more rapid and powerful impetus; ideas circulate more freely; large cities are like vast intellectual centers where all the lights of the human mind come to shine and combine.
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This fact explains for us why large nations bring more rapid progress to enlightenment and to the general cause of civilization than small ones.q It must be added that important discoveries often require a development of national strength of which the government of a small people is incapable; among large nations, the government has a greater number of general ideas; it is more completely free from the routine of antecedents and from local egoism. There is more genius in its conceptions, more boldness in its ways of doing things.
Internal well-being is more complete and more widespread among small nations as long as they remain at peace; but a state of war is more harmful to them than it is to large nations. In the latter, great distance from the borders sometimes allows most people to remain far from danger for centuries. For them, war is more a cause of discomfort than of ruin. [≠Large nations are at war more than small ones, but all things considered, among the large ones, there are more men at peace.≠]
Moreover, in this matter as in many others, there is a consideration that predominates over all the rest: that of necessity.
If there were only small nations and not any large ones, humanity would certainly be freer and happier; but the existence of large nations cannot be avoided.
This introduces into the world a new element of national prosperity, which is strength. What good is it for a people to present a picture of comfort and liberty, if they are exposed each day to devastation or conquest? What good is it that they have manufacturing and commerce, if another people commands the seas and establishes the law for all markets? Small nations are often miserable, not because they are small, but because they are weak; large nations prosper, not because they are large, but because they are strong. So for nations, strength is often one of the first conditions of happiness and even of existence. Because of that, barring particular circumstances, small peoples always end up being violently united with large ones or uniting with them on their own. I know of no condition more deplorable than that of a people able neither to defend itself nor to be self-sufficient.
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The federal system has been created to unite the various advantages that result from the large and the small sizes of nations.r
It is enough to look at the United States of America to see all the good that comes to those who adopt this system.
Among large centralized nations, the legislator is forced to give laws a uniform character that does not allow for the diversity of places and mores; never learning about individual cases, he can only proceed by general rules. Men are then obliged to bend to the necessity of legislation, for legislation cannot adapt to the needs and mores of men; this is a great cause of trouble and misery.s
This disadvantage does not exist in confederations. The congress regulates the principal actions of social existence; all the detail is left to the provincial legislatures.
You cannot imagine to what degree this division of sovereignty serves the well-being of each of the states that compose the Union. In these small societies, not preoccupied by the need to defend themselves or to expand, all public power and all individual energy are turned toward internal improvements.t The central government of each state, situated close to the governed, is alerted daily to needs that make themselves felt. Consequently, each year new plans are presented; these plans, discussed in town assemblies or the state legislature and then reproduced in the press, excite universal
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interest and the zeal of the citizens. This need to improve agitates the American republic constantly and does not trouble them; there, ambition for power is replaced by the love of well-being, a more vulgar, but less dangerous passion. It is an opinion generally shared in America that the existence and duration of republican forms in the New World depend on the existence and the duration of the federal system. A great part of the miseries engulfing the new States of South America is attributed to the desire to establish large republics there, instead of dividing sovereignty.u
As a matter of fact, it is incontestable that in the United States the taste and the practice of republican government were born in the towns and within the provincial assemblies. In a small nation such as Connecticut,v for example, where the important political matter is opening a canal or laying out a roadway, where the state has no army to pay nor war to sustain, and where the state can give to those who lead it neither wealth nor much glory, you can imagine nothing more natural and more appropriate to the nature of things than a republic. Now, this same republican spirit, these mores and these habits of a free people, after being born and developing in the various states, are then applied easily to the whole country. In a way, the public spirit of the Union is itself only a summary of provincial patriotism. Each citizen of the United States transfers, so to speak, the interest inspired in him by his small republic to the love of the common native land. By defending the Union, he defends the growing prosperity of his district, the right to direct its affairs, and the hope of winning acceptance there for the plans for improvement that are to enrich him himself: all things that ordinarily touch men more than the general interests of the country and the glory of the nation.
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On the other hand, if the spirit and the mores of the inhabitants make them more suitable than others to cause a large republic to prosper, the federal system has made the task much less difficult. The confederation of all the American states does not show the usual disadvantages of numerous human agglomerations. The Union is a large republic in terms of expanse; but in a way, it can be likened to a small republic, because of the small number of matters that concern its government. Its acts are important, but rare. Since the sovereignty of the Union is hindered and incomplete, the use of this sovereignty is not dangerous to liberty. Nor does it excite those immoderate desires for power and reputation that are so deadly to great republics. Since everything there does not necessarily end up at a common center, you see neither vast cities,w nor enormous wealth, nor great poverty, nor sudden revolutions. Political passions, instead of spreading instantaneously like a firestorm over the whole surface of the country, are going to break against the individual passions and interests of each state.
Within the Union, however, ideas and things circulate freely, as among one and the same people. Nothing stops the rise of the spirit of enterprise. Its government draws upon talents and enlightenment. Within the boundaries of the Union, as within the interior of a country under the same empire, a profound peace reigns. Outside, the Union ranks among the most powerful nations of the world; it offers to foreign trade more than eight hundred leagues of coastline. Holding in its hands the keys to a whole world, it enforces respect for its flag in the far reaches of the seas.x
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The Union is free and happy like a small nation, glorious and strong like a large one.y
There are, in all federal systems, inherent vices that the law-maker cannot fight.—Complication of all federal systems.—It requires from the governed the daily use of their intelligence.—Practical knowledge of the Americans in the matter of government.—Relative weakness of the government of the Union, another vice inherent in the federal system.—The Americans have made it less serious, but have not been able to destroy it.—The sovereignty of the individual states weaker in appearance, stronger in reality than that of the Union.—Why.—So among confederated peoples, there must be natural causes of union, apart from the laws.—What these causes are among the Anglo-Americans.—Maine and Georgia, 400 leagues apart, more naturally united than Normandy and Brittany.—That war is the principal danger to confederations.—This proved by the very example of the United States.—The Union has no great wars to fear.—Why.—Dangers that the peoples of Europe would run by adopting the federal system of the Americans.
[Of all beings, man is assuredly the one best known; and yet his prosperity or miseries are the product of unknown laws of which only a few isolated and incomplete fragments come into our view. Absolute truth is hidden and perhaps will always remain hidden.] The law-maker sometimes succeeds, after a thousand efforts, in exercising an indirect influence on the destiny of nations, and then his genius is celebrated. While often, the geographic
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position of the country, over which he has no influence; a social state that was created without his support; mores and ideas, whose origin is unknown to him; a point of departure that he does not know, impart to society irresistible movements that he struggles against in vain and that carry him along as well.
The law-maker resembles a man who plots his route in the middle of the sea. He too can navigate the ship that carries him, but he cannot change its structure, raise the wind, or prevent the ocean from heaving under his feet.
I have shown what advantages the Americans gain from the federal system. It remains for me to explain what allowed them to adopt this system; for not all peoples are able to enjoy its benefits.
Accidental vices arising from the laws are found in the federal system; these can be corrected by law-makers. Others are encountered that are inherent in the system; these could not be destroyed by the peoples who adopt it. So these peoples must find within themselves the strength to withstand the natural imperfections of their government.
Among the vices inherent to all federal systems, the most visible of all is the complication of means that they use. This system necessarily brings two sovereignties face to face. The law-maker succeeds in making the movements of these two sovereignties as simple and as equal as possible, and he can enclose both of them within clearly defined spheres of action. But he cannot make it so that there is only one of them, nor prevent them from being in contact at some point.
[The federal system of the United States consists of combining two governments: one, provincial; the other, national.
It is already not so easy to find a people who have the taste and, above all, the habit of provincial government. I have already remarked earlier that, among enterprises that can be attempted, certainly one of the most difficult was to persuade men to attend to their own affairs. It follows that the federal system is hardly ever established except among nations who, independent of one another for a long time, have naturally contracted this taste and these habits to a high degree. Notably, this is what happened in the United States. Before the Revolution, they all recognized the authority of the mother country, but each of them had its individual government as well and did not depend on its neighbor.
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Nonetheless, the great difficulty is not finding some peoples who know how to run their own affairs, but finding some who can understand federal sovereignty and submit to it.]
So no matter what is done, the federal system rests on a complicated theory whose application requires, in the governed, the daily use of the light of their reason.z
In general, only simple conceptions take hold of the mind of the people. An idea that is false, but clear and precise, will always have more power in the world than a true, but complicated, idea. It follows that parties, which are like small nations within a large one, are always quick to adopt, as a symbol, a name or a principle that often represents only very incompletely the end that they propose and the means that they employ. But without this symbol, they would be able neither to subsist nor to stir. Governments that rest only on a single idea or single sentiment, easy to define, are perhaps not the best, but they are assuredly the strongest and the most durable.
On the contrary, when 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.
Once the general theory is well understood, the difficulties of application remain; they are innumerable, for the sovereignty of the Union is so entangled with the sovereignty of the states that it is impossible at first
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glance to perceive their limits. Everything is by convention and by artifice in such a government, and it can only suit a people accustomed, for a long time, to running their own affairs, a people among whom political knowledge has penetrated to the lowest levels of society. I have never admired the good sense and practical intelligence of the Americans more than in the way in which they escape the innumerable difficulties that arise from their federal constitution. I almost never met a common man in America who did not, with surprising ease, discriminate between the obligations arising from the laws of Congress and those originating in the laws of his state, and who, after distinguishing the matters that were among the general attributions of the Union from those that the local legislature had to regulate, could not indicate the point at which the jurisdiction of the federal courts began and the limit at which that of the state courts ended.
The Constitution of the United States resembles those beautiful creations of human industry that shower glory and wealth on those who invent them, but that remain sterile in other hands.
This is what Mexico has demonstrated in our times.
The inhabitants of Mexico, wanting to establish the federal system, took as a model and almost completely copied the federal constitution of the Anglo-Americans, their neighbors.39 But while importing the letter of the law, they could not at the same time import the spirit that gives it life. So they are seen constantly encumbered by the mechanism of their double government. The sovereignty of the states and that of the Union, leaving the circle that the constitution had drawn, penetrate each other daily. Still today, Mexico is constantly dragged from anarchy to military despotism, and from military despotism to anarchy.
[But even if a people were advanced enough in civilization and versed enough in the art of government to submit intelligently to so complicated a political theory, it would still not mean that the federal system could meet all their needs.
There is, in fact, a vice inherent in this system that will manifest itself no matter what is done. That is the relative weakness of the government of the Union.]
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The second and more destructive of all the vices, which I regard as inherent in the federal system itself, is the relative weakness of the government of the Union.
The principle on which all confederations rest is the division of sovereignty. Law-makers make this division hardly noticeable; they even hide it from view for awhile, but they cannot keep it from existing. Now, divided sovereignty will always be weaker than complete sovereignty.
In the account of the Constitution of the United States, we saw how artfully the Americans, while enclosing the power of the Union within the limited circle of federal governments, succeeded in giving it the appearance and, to a certain extent, the strength of a national government.
By acting in this way, the law-makers of the Union reduced the natural danger of confederations; but they were not able to make it disappear entirely.
The American government, it is said, does not address itself to the states; it applies its injunctions directly to the citizens and bends them, separately, to the work of the common will.
But if federal law collided with the interests and prejudices of a state, should it not be feared that each of the citizens of this state would believe himself interested in the cause of the man who refuses to obey? When all the citizens of the state found themselves thus harmed at the same time and in the same way by the authority of the Union, the federal government would seek in vain to isolate them in order to combat them. They would instinctively feel that they must unite to defend themselves, and in the portion of sovereignty left for their state to enjoy, they would find an organization already prepared. Fiction would then disappear and give way to reality, and you would be able to see the organized power of one part of the territory joining battle with the central authority.
[This is, moreover, the spectacle most recently presented by South Carolina. The regulations of the United States concerning the tariff had become completely unpopular in Carolina; the state legislature took the initiative and suspended the enforcement of the federal law. This result is inevitable. When the interest or passions of men are left a powerful means of satisfaction, you can be assured that legal fictions will not long prevent them from noticing and making use of that means. ≠This is so well understood
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even in America that, no matter how large certain states already are, care has been taken not to create district assemblies that could represent a collective resistance. The legislature never has to make anything obey, other than towns, without links to each other.≠
Former federal constitutions obliged the states to act. The Constitution of the United States only obliges them to allow action, an essential difference that makes resistance very rare; for it is very much easier to refuse to act than to prevent someone else from acting. But once what you resolved simply to endure reaches a certain level of pain, the reluctance that men have to take initiative does not take long to disappear, and the precaution of the law-maker is found wanting.
The principle of federal law is that the Court of the United States must endeavor to judge only individuals. In this way, it does [not (ed.)] generally attack the laws of the states, which reduces the danger of a collision between the two sovereignties. But if, in a particular interest, it violates an important state law, or harms a general state principle or interest, the precautions of the law-maker are again useless; and the struggle, real if not obvious, is between the harmed state, represented by a citizen, and the Union, represented by its courts. The Constitution gives the Union … [text of note 40 (ed.)].
It is enough, moreover, to see in what a persuading and conciliatory manner the federal government calls for the execution of laws, in order to judge that, despite appearances and the efforts of the law-maker, the federal government constantly finds itself facing not individuals, but sovereigns.
It is even easy to go further, and it must be said with the famous Hamilton in the Federalist that of the two sovereignties, the stronger is assuredly the sovereignty of the state.
You can even go further … [cf. infra (ed.)] …]
I will say as much about the federal judicial system. If, in a particular trial, the courts of the Union violated an important state law, the real, if not obvious, struggle would be between the harmed state, represented by a citizen, and the Union, represented by its courts.40
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You must have little experience in the ways of this world to imagine that, after leaving the passions of men a means of satisfaction, you will always prevent them, with the aid of legal fictions, from noticing and making use of that means.
So the American law-makers, while making the struggle between the sovereignties less probable, did not destroy the causes.
You can even go further and say that they were not able to secure preponderance to the federal power in case of conflict.a
They gave the Union money and soldiers, but the states retain the love and the prejudices of the people.
The sovereignty of the Union is an abstract thing connected to only a small number of external matters. The sovereignty of the states is felt by all the senses; it is understood without difficulty; every moment, it is seen in action. One is new; the other was born with the people themselves.
The sovereignty of the Union is a work of art. The sovereignty of the states is natural; it exists by itself, without effort, like the authority of the father of a family.
The sovereignty of the Union touches men only through a few general interests; it represents an immense and distant country, a vague and indefinite sentiment. The sovereignty of the states envelops each citizen in a way and catches him every day by details. It is the state that takes responsibility
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for guaranteeing his prosperity, his liberty, his life; at every moment, it influences his well-being or his misery. The sovereignty of the states rests on memories, on habits, on local prejudices, on the egoism of province and of family; in a word, on all the things that make the instinct for native land so powerful in the heart of man. How can its advantages be doubted?
Since the law-makers cannot prevent the occurrence of dangerous collisions between the two sovereignties that are brought face to face by the federal system, their efforts to turn confederated peoples away from war must be joined with particular dispositions that carry them toward peace.
It follows that the federal pact 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.
Thus, to succeed, the federal system needs not only good laws, but also favorable circumstances.
All peoples who have been seen to form a confederation have had a certain number of common interests that serve as the intellectual bonds of the association.
But beyond material interests, man still has ideas and sentiments. For a confederation to last for a long time, there must be no less homogeneity in the civilization than in the needs of the diverse peoples who constitute it. The civilization of a canton in Vaud compared with that of a canton in Uri is like the XIXth century compared with the XVth; so Switzerland has never truly had a federal government. The union among the different cantons exists only on the map; and that would be clearly seen if a central authority wanted to apply the same laws over the whole territory.b
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[There are men who pretend that one of the advantages of federal constitutions is to allow each portion of the same empire to live entirely in its own way, without ceasing to be united. That is true, if confederation means a kind of offensive and defensive league, by means of which different peoples unite to repel a common danger and remain strangers to each other for everything else. But if, among confederated peoples, you want to create a common existence and a true national government, it is absolutely necessary that their civilization be homogeneous in nature. This necessity makes itself felt even much more in confederations than in monarchies, because in order to be obeyed, government has much more need for the support of the governed in the first than in the second.
The federal system allows and favors diversity in laws dealing with specifics, which is a great good; but it often resists uniformity in general laws, which is a great evil.]
In the United States there is a fact that admirably facilitates the existence of the federal government. The different states not only have more or less the same interests, the same origin and the same language, but also the same degree of civilization; this almost always makes agreement among them easy. I do not know if there exists any European nation, however small, that, in its different parts, does not present a less homogeneous face than the American people whose territory is as large as half of Europe.
From the state of Maine to the state of Georgia, there are about four hundred leagues. However, less difference exists between the civilization of Maine and that of Georgia than between the civilization of Normandy and that of Brittany. So Maine and Georgia, placed at two extremities of a vast
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empire, naturally find more real ease in forming a confederation, than Normandy and Brittany, which are separated only by a stream.
With these opportunities, which the mores and habits of a people offer to the American law-makers, are joined others that arise from the geographic position of the country. It is principally to the latter that the adoption and maintenance of the federal system must be attributed.c
[Despite all these obstacles, I believe federal governments still more appropriate for maintaining internal peace and for favoring, over a vast empire, the peaceful development of social well-being, than for struggling with advantage against foreign enemies.
It is the difficulty that confederations find in sustaining great wars that makes so many peoples incapable of enduring federal government.]
The most important of all the actions that can mark the life of a people is war. In war, a people acts as a single individual vis-à-vis foreign peoples; it fights for its very existence.
As long as it is only a question of maintaining peace within the interior of a country and of favoring prosperity, skill in the government, reason among the governed, and a certain natural attachment that men almost always have for their country can easily suffice. But for a nation to be able to wage a great war, the citizens must impose numerous and painful sacrifices on themselves. To believe that a large number of men will be capable of submitting themselves to such social exigencies, is to know humanity very badly. [Were the necessity of war to be universally acknowledged, the natural inclination of the human mind is to reject the annoying consequences
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of the principle that it previously accepted. So once the principle of war is accepted, an authority capable of forcing individuals to bear its consequences must be found somewhere.]
It follows that all peoples who have had to wage great wars have been led, almost despite themselves, to augment the forces of the government. Those who have not been able to succeed in doing so have been conquered. A long war almost always puts nations in this sad alternative; their defeat delivers them to destruction, and their triumph, to despotism.
[There is a great nation in Europe where the forces of society [v: governmental forces] are centralized in such a way that in case of war, a drum-beat assembles the entire nation, so to speak, around its leader, like the inhabitants of a village. This nation, apart from its courage, must have a great advantage over others for waging war; on several occasions, therefore, we have seen it dominate all of Europe by force of arms.
The fact is that to draw from people the enormous sacrifices of men and money that war requires and to concentrate, in one place and at a given time, all national forces, nothing less is required than the efforts of complete sovereignty.
Now, the inevitable evil of confederations, I have already said, is the division of sovereignty. In the federal system, not only is there no administrative centralization or anything approaching it, but also governmental centralization itself exists only very incompletely. That is always a great cause of weakness when it is a question of defense against peoples among whom governmental centralization exists.
In the federal Constitution of the United States … [cf. infra (ed.)]].
So, in general, it is during a war that the weakness of a government is revealed in a most visible and dangerous manner; and I have shown that the inherent vice of federal governments was to be very weak.
In the federal system, not only is there no administrative centralization or anything approaching it, but also governmental centralization itself exists only incompletely. That is always a great cause of weakness, when defense is necessary against peoples among whom governmental centralization is complete.
In the federal Constitution of the United States, of all federal constitutions, the one where the central government is vested with the most real
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strength, this evil still makes itself acutely felt. [The law gives Congress, it is true, the right to take all measures required by the interest of the country, but the difficulty is to exercise such a right. If Congress, pressed by urgent needs, comes to impose on the governed sacrifices equal to the dangers, the discontent of those individuals who suffer does not fail to find a place of support in the sovereignty of the states, or at least in the ambition of those who lead the states and who, in turn, want the support of the malcontents. The states that do not want to wage war, or to whom the war is useless or harmful, easily find in the interpretation of the Constitution the means to refuse their support. The physical and, above all, the moral force of the nation is considerably reduced by it, for even the possibility of such an event renders the federal government weak and slow to act; it fills the government with hesitations and fears and prevents it from even attempting all that it could do.
“It is evident,” says Hamilton in the Federalist, no. 12, “from the state of the country, from the habits of the people, from the experience we have had on the point itself that it is impracticable to raise any very considerable sums by direct taxation.” The direct tax is in fact the most visible and burdensome of taxes; but at the same time, it is the only one that can always be resorted to during a war.]
A single example will allow the reader to judge.
The Constitution gives Congress the right to call the state militias into active duty when it is a matter of suppressing an insurrection or repelling an invasion. Another article says that in this case the President of the United States is the Commander in Chief of the militia.
At the time of the War of 1812, the President ordered the militias of the North to move toward the national borders; Connecticut and Massachusetts, whose interests were harmed by the war, refused to send their contingents.
The Constitution, they said, authorizes the federal government to use the militias in cases of insurrection or invasion; but in the present situation there was neither insurrection nor invasion. They added that the same Constitution that gave the Union the right to call the militias into active service, left the states the right to appoint the officers. It followed, according to them, that even in war, no officer of the Union had the right to command
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the militias, except the President in person. But this was a matter of serving in an army commanded by someone other than him.
These absurd and destructive doctrines received not only the sanction of the Governors and the legislature, but also that of the courts of justice of these two states; and the federal government was forced to find elsewhere the troops that it needed.41
[A fact of this nature proves, better than all that I could say, the inability the American Union would have to sustain a great war, even with the improved organization that the 1789 Constitution gave it.
Allow for a moment the existence of such a nation in the midst of the aggressive peoples of Europe where sovereignty is unified and omnipotent, and the relative weakness of the American Union will become for you a proven and plain truth.]
So how is it that the American Union, all protected as it is by the relative perfection of its laws, does not dissolve in the middle of a great war? It is because it has no great wars to fear.e
[In general, we must give up citing the example of the United States to prove that confederations can sustain great wars, for the Union has never had a single one of this nature.
Even that of 1812, which the 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. The reason is simple.]
Placed in the center of an immense continent, where human industry
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can expand without limits, the Union is almost as isolated from the world as if it were enclosed on all sides by the ocean.f
Canada numbers only a million inhabitants; its population is divided into two enemy nations. The rigors of climate limit the extent of its territory and close its ports for six months of the year.
From Canada to the Gulf of Mexico, there are still a few, half-destroyed, savage tribes that six thousand soldiersg drive before them.
In the South, the Union at one point touches the empire of Mexico; probably great wars will come from there one day [if the Anglo-Americans and the Mexicans each continue to form a single, unified nation. In Mexico, in fact, there is a numerous population that, different from its neighbors by language, religion, habits and interest [broken text (ed.)]]. But, for a long time still, the little developed state of its civilization, the corruption of its mores and its poverty will prevent Mexico from taking an elevated rank among nations. As for the great powers of Europe, their distance makes them little to be feared.O
So the great happiness of the United States is not to have found a federal constitution that allows it to sustain great wars, but to be so situated that there are none to fear.
No one can appreciate more than I the advantages of the federal system. There I see one of the most powerful devices favoring prosperity and human liberty. I envy the fate of nations permitted to adopt it. But I refuse, nonetheless, to believe that confederated republics could struggle for long, with equal strength, against a nation where governmental power would be centralized.
The people who, in the presence of the great military monarchies of Europe, would come to divide sovereignty, would seem to me to abdicate, by this fact alone, its power and perhaps its existence and its name.
Admirable position of the New World where man has only himself as an enemy. To be happy and free, he only has to want to be.
