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Legislative Power of the State - Alexis de Tocqueville, Democracy in America: Historical-Critical Edition, vol. 1 [1835]

Edition used:

Democracy in America: Historical-Critical Edition of De la démocratie en Amérique, ed. Eduardo Nolla, translated from the French by James T. Schleifer. A Bilingual French-English editions, (Indianapolis: Liberty Fund, 2010). Vol. 1.

Part of: Democracy in America: Historical-Critical Edition, 4 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Legislative Power of the State

Division of the legislative body into two houses.—Senate.—House of representatives.—Different attributions of these two bodies.

The legislative power of the state is entrusted to two assemblies; the first is generally called the senate.

The senate is normally a legislative body; but sometimes it becomes an administrative and judicial body.

It takes part in administration in several ways depending on the different constitutions;45 but ordinarily it enters into the sphere of executive power by taking part in the choice of officials.

It participates in judicial power by judging certain political crimes and sometimes as well by ruling on certain civil actions.46

Its members are always few in number.

The other branch of the legislature, usually called the house of representatives, participates in nothing related to administrative power, and takes part in judicial power only when accusing public officials before the senate.

The members of the two houses are subject almost everywhere to the same conditions of eligibility. Both are elected in the same way and by the same citizens.

The only difference that exists between them is due to the fact that the mandate of senators is generally longer than that of representatives. The second rarely remain in office more than a year; the first ordinarily hold their seats two or three years.

By granting senators the privilege of being named for several years, and by replacing them by cohort, the law has taken care to maintain, among the legislators, a nucleus of men, already used to public affairs, who can exercise a useful influence over the newcomers.

So by the division of the legislative body into two branches, the Americans did not want to create one hereditary assembly and another elective one; they did not intend to make one into an aristocratic body, and the other into a representative of the democracy. Nor was their goal to make the first into a support for the governing power, while leaving the interests and passions of the people to the second.y

To divide legislative power, to slow in this way the movement of political assemblies, and to create a court of appeal for the revision of laws, such are the only advantages that result from the current constitution of the two houses in the United States.

Time and experience have shown the Americans that, reduced to these advantages, the division of legislative powers is still a necessity of the first order.

Pennsylvania alone, among all the united republics, tried at first to establish a single assembly. Franklin himself, carried away by the logical consequences of the dogma of sovereignty of the people, had worked toward this measure. The law soon had to be changed and two houses established. The principle of the division of legislative power thus received its final consecration; henceforth then, the necessity to divide legislative activity among several bodies can be considered a demonstrated truth. This theory, more or less unknown in the ancient republics, introduced into the world almost by chance, like most great truths, misunderstood among several modern peoples, has finally passed as an axiom into the political science of today.z

[45. ] In Massachusetts, the Senate is vested with no administrative function.

[y. ] Division of administrative power, concentration of legislative power. American principle (important).

The legislature most often appoints special agents to enforce its will. Thus, power not even regular or necessary executor of the laws.

The Governor’s veto is not a barrier to the democracy, the Governor emanating entirely from it. Only the judges are a real barrier.

Not only is power divided among several hands, but the exercise of power is divided. The Governor cannot appoint the official and direct him at the same time. Subtle and dubious.

The institution of the senate is a barrier to the democracy because named for a longer time; they [sic] are not as immediately subject to the fear of not being reelected (YTC, CVb, pp. 15-16).

[z. ] Tocqueville, it must be remembered, was part of the commission charged with drafting the constitution of 1848. There, he defended the division of legislative power into two branches. This idea came to nothing. In his Souvenirs (OC, XII, pp. 148-87), he gives some details about it. The notes taken by Beaumont during the work of the commission offer in this regard some interesting, previously unpublished details (YTC, DIVk). Beaumont notes as follows, in a rapid and necessarily schematic fashion, Tocqueville’s answers to the proposal of Marrast concerning the creation of a single chamber (25 May 1848):

Tocqueville.—Recognizes that the cause of two chambers is lost. The state of minds is such that it would be almost dangerous to insist upon a system that [illegible word] in itself is bad only in the circumstances.

—But, necessary to show how two chambers are the only institution that can perhaps make the republic viable.

—History!

—The United States. The Constitution of the United States must be set aside; take the thirty democratic constitutions of the United States that have same social and political state as we.

—Now, in these 30 states the question of two chambers is an accomplished fact and an uncontested truth.

—Is it [that this (ed.)] historical tradition is English?

—No. Instead of following the English tradition, they broke with it. Congress began with a single assembly. Those of Massachusetts and Pennsylvania in the same way (for thirteen years in Pennsylvania); and at the end of thirteen years with a single assembly, Pennsylvania changed the system of a single assembly and adopted two chambers.

—So in France what made opinion so hostile to single chambers?

—It is a misunderstanding. Until now in Europe the system of two chambers was to give a special expression to two different elements, the aristocrat and the democrat; from that it was concluded that the establishment of two chambers was an aristocratic principle. This natural conclusion is correct, if it was a question of introducing the slightest element of aristocracy into the government.

—But is the existence of two chambers in itself a fact aristocratic by nature?

—How so! The two chambers in America are from the aristocracy!! What is it then? The two chambers are chosen by the same electors, for the same time, in the same conditions, more or less.

—Objection that if the second chamber has no use as a counterbalance to the democracy, what purpose does it serve? Then it is a superfluity.

—No.

—Even logically, it can be sustained. What is logical is that the nation be all powerful; but what [more (ed.)] contrary to logic than that the sovereignty of the nation have one or two agents.

—Now logically what purpose do two chambers serve?

Three principal uses.

1.Necessity in France of giving the executive power great force. But, certain considerable matters cannot be absolutely conducted by the executive power without any everyday control. In the United States, the Senate assists the President in certain acts, or rather controls him; treaties, choice of high officials. Body small enough to be able to act in concert with the executive power and strong because it comes from the people. This could be done, it is true, by [the (ed.)] Conseil d’État.

2.Driving impulses of democracies. Perilous and untenable situation of the executive power, in the eternal head to head of this one man and this single assembly; eternal conflict between two wills face to face. - The only means for no conflict is that the man always gives way to the assembly. Then no struggle.

3.The great disease of democracies is legislative intemperance, violence in proceedings, rapidity in actions. The advantage of two chambers is not to prevent violent revolutions, but to prevent the bad government that ends up leading to revolution.

—What means to combat the inherent vices of this single body? It is to divide it.

—Two chambers drawn from the same elements can have different thoughts however.

—Difficulty for two or three men to dominate a country when there are two chambers. Very easy when there is only one chamber.

—Utility of two considerations of a question. But there are two considerations only when there are two assemblies. Two readings do not mean two considerations. It is resubmitting a judgment to those who have made it, and who will only repeat what they judged (YTC, DIVk).

The papers of Beaumont, which contain innumerable notes on the American constitutions, are there to witness to the importance given to American constitutional history during the discussions of the constitutional commission of 1848.