The Online Library of Liberty

A project of Liberty Fund, Inc.

• Translator’s Note
• Acknowledgments
• Key Terms
• Foreword
• The Manuscripts of Tocqueville
• Some Details Concerning the Present Edition
• Abbreviations and Symbols Used In This Edition
• Note On the Manuscripts
• Acknowledgments
• Illustrations
• Editor’s Introduction
• I: Legacies
• II: To Understand the Revolution
• Democracy In America a (1835), Volume I]: Part I
• Introduction a
• Chapter 1: Exterior Configuration of North America
• Chapter 2: Of the Point of Departure and Its Importance For the Future of the Anglo-americans a
• Reasons For Some Singularities That the Laws and Customs B of the Anglo-americans Present
• Chapter 3: Social State of the Anglo-americans
• That the Salient Point of the Social State of the Anglo-americans Is to Be Essentially Democratic
• Political Consequences of the Social State of the Anglo-americans
• Chapter 4: Of the Principle of the Sovereignty of the People In America
• Chapter 5: Necessity of Studying What Happens In the Individual States Before Speaking About the Government of the Union a
• Of the Town System In America C
• Town District
• Town Powers In New England
• Of Town Life
• Of Town Spirit In New England
• Of the County In New England
• Of Administration In New England a
• General Ideas On Administration In the United States
• Of the State
• Legislative Power of the State
• Of the Executive Power of the State
• Of the Political Effects of Administrative Decentralization In the United States C
• Chapter 6 A: of the Judicial Power In the United States and Its Action On Political Society B
• Other Powers Granted to American Judges
• Chapter 7: Of Political Jurisdiction In the United States Tn 4
• Chapter 8: Of the Federal Constitution
• Historical Background of the Federal Constitution a
• Summary Picture of the Federal Constitution J
• Attributions of the Federal Government
• Federal Powers
• Legislative Powers: R [difference Between the Constitution of the Senate and That of the House of Representatives]
• Another Difference Between the Senate and the House of Representatives W
• Of Executive Power 16
• How the Position of the President of the United States Differs From That of a Constitutional King In France
• Accidental Causes That Can Increase the Influence of the Executive Power
• Why the President of the United States, to Lead Public Affairs, Does Not Need to Have a Majority In the Chambers
• Of the Election of the President
• Mode of Election
• Election Crisis
• Of the Re-election of the President
• Of the Federal Courts 24
• Way of Determining the Jurisdiction Tn 5 of the Federal Courts
• Different Cases of Jurisdiction
• The Federal Courts’ Way of Proceeding
• Elevated Rank That the Supreme Court Occupies Among the Great Powers of the State
• How the Federal Constitution Is Superior to the State Constitutions
• What Distinguishes the Federal Constitution of the United States of America From All Other Federal Constitutions
• Of the Advantages of the Federal System In General, and of Its Special Utility For America M
• What Keeps the Federal System From Being Within the Reach of All Peoples; and What Has Allowed the Anglo-americans to Adopt It

Of the Political Effects of Administrative Decentralization in the United Statesc

Centralization is a word repeated constantly today, and, in general, no one tries to clarify its meaning.

Two very distinct types of centralization exist, however, that are important to know well.

Certain interests are common to all parts of the nation, such as the formation of general laws and the relationships of the people with foreigners.

Other interests are special to certain parts of the nation, such as town enterprises, for example.

To concentrate in the same place or in the same hands the power to direct the first is to establish what I will call governmental centralization.d

To concentrate in the same way the power to direct the second is to establish what I will name administrative centralization.e

There are points at which these two types of centralization merge. But by taking, as a whole, the matters that fall more particularly in the domain of each of them, we easily manage to distinguish them.f

It is understood that governmental centralization acquires immense strength when it is joined with administrative centralization. In this way, it accustoms men to making a complete and continuous abstraction of their will, to obeying, not once and on one point, but in everything and every day. Then, not only does it subdue them by force, but also it captures them by their habits; it isolates them and then, within the common mass, catches hold of them, one by one.

These two types of centralization lend each other mutual aid, attract each other; but I cannot believe that they are inseparable.

Under Louis XIV, France saw the greatest governmental centralization that could be imagined, since the same man made general laws and had the power to interpret them, represented France to the outside world and acted in its name. L’Etat, c’est moi, he said; and he was right.g

Under Louis XIV, however, there was much less administrative centralization than today.h

In our time, we see a power, England, where governmental centralization is carried to a very high degree; the State there seems to move like a single man; at will, it rouses immense masses, gathers and delivers, wherever it wants, the utmost of its strength.

England, which has done such great things for the last fifty years, does not have administrative centralization.

For my part, I cannot imagine that a nation could live or, above all, prosper without strong governmental centralization.

But I think that administrative centralization is suitable only to enervate the peoples who submit to it, because it constantly tends to diminish the spirit of citizenship in them.j Administrative centralization, it is true, succeeds in gathering at a given time and in a certain place all the available forces of a nation, but it is harmful to the multiplication of those forces. It brings the nation victory on the day of battle and over time reduces its power. So it can work admirably toward the passing greatness of a man, not toward the lasting prosperity of a people.k [<≠I see there an element of despotism, but not of lasting national strength [in pencil: that would be].≠>]

You must be very careful; when someone says that a State is unable to act because it has no centralization, he is, without knowing it, almost always talking about governmental centralization.m The German empire, it is said repeatedly, has never been able to gain all that it possibly could from its forces. Agreed. But why? Because national force has never been centralized there; because the State has never been able to compel obedience to its general laws; because the separate parts of this great body have always had the right or the possibility to refuse their support to the agents of the common authority, even in what concerned all citizens; in other words, because there was no governmental centralization. The same remark applies to the Middle Ages. What produced all the miseries of feudal society was that the power, not only to administer, but also to govern, was divided among a thousand hands and fragmented in a thousand ways; the absence of any governmental centralization then prevented the nations of Europe from moving with energy toward any goal.

[≠Moreover, like nearly all the harmful things of this world, administrative centralization is easily established and, once organized, can hardly ever be destroyed again except with the social body itself.n

When all the governmental force of a nation is gathered at one point, it is always easy enough for an enterprising genius to create administrative centralization. We ourselves have seen this phenomenon take place before our eyes. The Convention had centralized government to the highest degree, and Bonaparte needed only to will it in order to centralize the administration. It is true that for centuries in France our habits, mores and laws had always worked simultaneously toward the establishment of an intelligent and enlightened despotism.[*]

Once administrative centralization has lasted for a time, should the power that established it sincerely desire to destroy it, that same power almost always finds itself unable to bring about its ruin.

In fact, administrative centralization assumes a skillful organization of authority; it forms a complicated machine in which all the gears fit together and offer mutual support.

When the law-maker undertakes to scatter this administrative power that he has concentrated in a single place, he does not know where to begin, because he cannot remove one piece of the mechanism without disrupting the whole thing. At each moment, he sees that either nothing must be changed or everything; but what hand, so foolhardy, would dare to smash with one blow the administrative machinery of a great people?

To attempt it would be to invite disorder and confusion into the State.

The art of administration is assuredly a science, and peoples do not have more innate knowledge than individuals do. Delivered to itself without any transition, society would almost entirely cease to be administered.

Moreover, one of the greatest misfortunes of despotism is that it creates in the soul of the men submitted to it a kind of depraved taste for tranquillity and obedience, a sort of self-contempt, that ends by making them indifferent to their interests and enemies of their own rights. In nothing, however, is it more necessary for the governed themselves to show a definite and sustained will.

Nearly all the passionate and ambitious men who talk about centralization lack a real desire to destroy it. What happened to the Praetorians happens to them; they willingly suffer the tyranny of the emperor in the hope of gaining the empire. So decentralization, like liberty, is something that the leaders of the people promise, but that they never deliver. In order to gain and keep it, nations can count only on their own efforts; and if they themselves do not have a taste for it, the evil is without remedy.

Surprisingly, the same corporations, in whose name the power of self-administration has been passionately claimed, are often seen to accept without enthusiasm the portion of power granted to them and to show themselves almost eager to lay it down again, like a useless and heavy burden.≠]o

We have seen that in the United States no administrative centralization existed. Scarcely a trace of hierarchy is found there. Decentralization there has been carried to a point that no European nation could bear, I think, without a profound uneasiness, and that, even in America, produces unfortunate effects. But, in the United States, governmental centralization exists to the highest degree. It would be easy to prove that national [sic: state] power is more concentrated there than it has been in any of the old monarchies of Europe. Not only is there just a single body in each state that makes laws; not only is there just a single power able to create political life around it; but in general, the Americans have avoided bringing together numerous district or county assemblies for fear that these assemblies would be tempted to move beyond their administrative attributions and hinder the movement of the government. In America the legislature of each state is faced by no power capable of resisting it. Nothing can stop it in its tracks, neither privileges, nor local immunity, nor personal influence, not even the authority of reason, for it represents the majority that claims to be the only instrument of reason. So it has no limit to its action other than its own will. Next to it and close at hand is found the representative of the executive power who, with the aid of physical force, has to compel the discontent to obey.p

Weakness is found only in certain details of governmental action.

The American republics do not have a permanent armed force to suppress minorities, but up to now minorities there have never been reduced to starting a war; and the need for an army has not yet been felt.q Most often, the state uses town or county officials to act upon the citizens. Thus, for example, in New England, it is the town assessor who apportions the tax; the town tax collector levies it; the town treasurer makes sure that the tax revenue goes into the public treasury; and complaints that arise are submitted to the ordinary courts. Such a way to collect taxes is slow and awkward; at every instant it would hinder the movement of a government that had great pecuniary needs. In general, for everything essential to its existence, you would want the government to have officials of its own, chosen and removable by it, and to have ways to move ahead rapidly; but it will always be easy for the central power, organized as it is in America, to introduce more energetic and effective means of action, as needed.[*]

So it is not, as is often repeated, because there is no centralization in the United States, that the republics of the New World will perish.r It can be asserted that the American governments, very far from not being centralized enough, are centralized too much; I will prove it later. Each day the legislative assemblies devour some of the remains of governmental powers; they tend to gather them all unto themselves, just as the Convention did.s The social power, thus centralized, constantly changes hands, because it is subordinate to popular power. Often it happens to lack wisdom and foresight, because it can do everything. That is where the danger to it is found. So it is because of its very strength, and not as a result of its weakness, that the social power is threatened with perishing one day.t

Administrative decentralization produces several diverse effects in America.

We have seen that the Americans had almost entirely isolated administration from government; in that, they seem to me to have gone beyond the limits of healthy reason, because order, even in secondary things, is still a national interest.49

The state has no administrative officials of its own, who are placed in permanent posts at different points of the territory and to whom it can give a common impulse; the result is that it rarely attempts to establish general rules of public order. Now, the need for these rules makes itself sharply felt. The European often notices their absence. This appearance of disorder, which reigns on the surface, persuades him, at first view, that there is complete anarchy in the society; it is only by examining things in depth that he corrects his error.

[This absence of national (v: central) administration often prevents the different states from engaging in certain undertakings of a general interest, the execution of which would present great difficulties if handed over to the localities and left to temporary and special agents. Besides, it is always to be feared that, without a permanent authority to centralize and supervise, the work, once done, might self-destruct.

As for differences that would make themselves felt between the administrative principles of one portion of the territory and those of another, differences that would be very great in Europe are not noticeable in America. The states are not so vast as to present examples; and above all, their population is too perfectly homogeneous and too enlightened for these differences to be lasting. All the counties, moreover, are forced to obey general laws that are the same for each of them.

≠I recognize as well that in America the views that direct the administration are rarely permanent. It is difficult to decentralize administrative power without putting a portion of it back into the hands of the people; and the people never proceed except by momentary efforts and sudden impulses.

I come to the great objection that has been made from time immemorial to the system of administrative decentralization, the objection that encompass [sic] all of the others.≠

The partisans of centralization in Europe . . .]

Certain enterprises interest the entire state and yet cannot be carried out because there is no national [sic: state] administration to direct them. Abandoned to the care of the towns and counties, left to elected and temporary agents, they lead to no result or produce nothing lasting.

The partisans of centralization in Europe maintain that governmental power administers the localities better than they would be able to administer themselves. Perhaps that is true, when the central power is enlightened, and the localities are not; when it is active, and they are passive; when it is in the habit of taking action, and they are in the habit of obeying. You can even understand that the more centralization increases, the more this double tendency grows; and the capacity of the one and incapacity of the other become more striking.

But I deny that this is so when the people are enlightened, alert to their interests, and accustomed to consider them as they do in America.

I am persuaded, on the contrary, that in this case the collective strength of the citizens will always be more powerful for producing social well-being than the authority of the government.

I admit that it is difficult to indicate with certainty how to awaken a people who are asleep, how to give them the passions and enlightenment that they lack. To persuade men that they should take charge of their own affairs is, I am aware, a difficult enterprise. Often it would be less awkward to interest them in the details of court etiquette than in the repair of their town hall [{and I would conclude, if you want, that there are certain nations [v: peoples] who cannot do without despotism.}].

But I also think that when the central administration claims to replace completely the free participation of those who have the primary interest, it is mistaken or wants to deceive you.

A central power, as enlightened, as skillful as can be imagined, cannot by itself encompass all the details of the life of a great people. It cannot, because such a task exceeds human power. When, on its own, it wants to create and put into operation so many different mechanisms, it either contents itself with a very incomplete result or exhausts itself in useless efforts.

Centralization easily manages, it is true, to subject the outward actions of men to a certain uniformity that is ultimately loved for itself, apart from the things to which it is applied; like the devout who worship the statue, forgetting the divinity it represents. Centralization succeeds without difficulty in imparting a steady appearance to everyday affairs; in skillfully dictating the details of social order; in suppressing slight disturbances and small transgressions; in maintaining society in a status quo which is not exactly either decadence or progress; in keeping a kind of administrative somnolence in the social body that administrators customarily call good order and public tranquillity.50 In a word, it excels at preventing, not at doing. When it is a matter of profoundly shaking society or moving it rapidly, centralization loses its strength. As soon as its measures need the support of individuals, you are totally surprised by the weakness of this immense machine; it suddenly finds itself reduced to impotence.

Then sometimes centralization, in desperation, tries to call citizens to its aid. But it says to them: “You will act as I want, as long as I want, and exactly in the way that I want. You will take charge of these details without aspiring to direct the whole; you will work in the shadows, and later you will judge my work by its results.” Under such conditions you do not gain the support of human will, which requires liberty in its ways, responsibility in its actions. Man is made so that he prefers remaining immobile to moving without independence toward an unknown end.u

[During the almost forty years that we in France have completed the system of administrative centralization, what great improvement has been introduced into the state of the civilization of the people? Who would compare our social progress to that of the English during the same period? But, centralization does not exist in England.]

I will not deny that in the United States you often regret the lack of those uniform rules that seem constantly to watch over each of us.

From time to time, great examples of unconcern and of social negligence are found there. Here and there crude blemishes appear that seem completely at odds with the surrounding civilization.

Useful undertakings that require constant care and rigorous exactitude in order to succeed often end up being abandoned; for in America, as elsewhere, the people proceed by momentary efforts and sudden impulses.v

The European, accustomed to finding an official constantly at hand who gets involved in nearly everything, becomes used to these different mechanisms of town administration with difficulty. In general it can be said that the small details of social order that make life pleasant and easy are neglected in America; but the guarantees essential to man in society exist there as much as everywhere else. Among the Americans, the force that administers the State is much less stable, less enlightened, less skillful, but is one hundred times greater than in Europe. When all is said and done, there is no country in the world where men make as many efforts to create social well-being. I know of no people who have managed to establish schools so numerous and so effective; churches more appropriate to the religious needs of the inhabitants; town roads better maintained. So, in the United States, do not look for uniformity and permanence of views, minute attention to details, perfection in administrative procedures.51 What is found there is the image of strength, a little wild, it is true, but full of power; of life, accompanied by accidents, but also by activities and efforts.x

I will admit, moreover, if you want, that the villages and counties of the United States would be administered more profitably by a central authority that was located far from them and remained unknown to them, than by officials drawn from within. I will acknowledge, if you insist, that more security would reign in America, that wiser and more judicious use of social resources would be made there, if the administration of the entire country were concentrated in a single hand. The political advantages that the Americans gain from the system of decentralization would still make me prefer it to the opposite system.

So what, after all, if there is an authority always at the ready, [{that muzzles dogs [v: waters public walkways] during the heat wave, that breaks up river ice during the winter}] that makes sure that my pleasures are peaceful, that flies before my steps to turn all dangers aside without the need for me even to think about them; if this authority, at the same time that it removes the smallest thorn from my route, is absolute master of my liberty and life; if it monopolizes movement and existence to such a degree that everything around it must languish when it languishes, sleep when it sleeps, perish if it dies?

There are such nations in Europe where the inhabitant considers himself a sort of settler, indifferent to the destiny of the place where he lives. The greatest changes occur in his country without his participation; he does not even know precisely what happened; he surmises; he has heard about the event by chance. Even more, the fortune of his village, the policing of his street, the fate of his church and his presbytery have nothing to do with him; he thinks that all these things are of no concern to him whatsoever, and that they belong to a powerful stranger called the government. [v: At each moment, you think you hear him say: what concern is this to me; it is the business of the authorities to provide for all of this, not mine.] As for him, he enjoys these benefits like a usufructuary, without a sense of ownership and without ideas of any improvement whatsoever. This disinterestedness in himself goes so far that if his own security or that of his children is finally compromised, instead of working himself to remove the danger, he crosses his arms to wait until the entire nation comes to his aid. Moreover, this man, even though he has so completely sacrificed his own free will, likes to obey no more than anyone else. He submits, it is true, to the will of a clerk; but, like a defeated enemy, he likes to defy the law as soon as power withdraws. Consequently, you see him oscillate constantly between servitude and license.

When nations have reached this point, they must modify their laws and mores or perish, for the source of public virtues has dried up; subjects are still found there, but citizens are seen no more.

I say that such nations are prepared for conquest. If they do not vanish from the world stage, it is because they are surrounded by similar or inferior nations. It is because within them there still remains a kind of indefinable patriotic instinct, I do not know what unthinking pride in the name that the nation carries. It is because there still remains I do not know what vague memory of past glory, not precisely linked to anything, but enough to impart an impulse of preservation as needed.

You would be wrong to reassure yourself by thinking that certain peoples have made prodigious efforts to defend a native land where, so to speak, they lived as strangers. Be very careful here, and you will see that in that case religion was almost always their principal motive.

For them, the duration, glory or prosperity of the nation had become sacred dogmas, and by defending their native land, they also defended this holy city in which they were all citizens.

The Turkish populations have never taken any part in the direction of the affairs of society; they accomplished immense enterprises, however, as long as they saw the triumph of the religion of Mohammed in the conquests of the Sultans. Today religion is disappearing; despotism alone remains for them; they are in decline.y

Montesquieu, by giving despotism a strength of its own, gave it, I think, an honor that it did not deserve. Despotism, all by itself, can sustain nothing lasting. When you look closely, you notice that what made absolute governments prosper for a long time was religion, and not fear.

No matter what, you will never find true power among men except in the free participation of wills.z Now, in the world, only patriotism or religion can make the totality of citizens march for long toward the same goal.

It does not depend on the laws to revive beliefs that are fading; but it does depend on the laws to interest men in the destinies of their country. It depends on the laws to awaken and to direct that vague patriotic instinct that never leaves the human heart, and, by linking it to thoughts, passions, daily habits, to make it into a thoughtful and lasting sentiment. And do not say that it is too late to try; nations do not grow old in the same way that men do. Each generation born within the nation is like a new people who comes to offer itself to the hand of the law-maker.

What I admire most in America are not the administrative effects of decentralization, but its political effects. In the United States, country makes itself felt everywhere. It is an object of solicitude from the village to the whole Union. The inhabitant becomes attached to each of the interests of his country as to his very own. He glories in the glory of the nation; in the successes that it achieves, he believes that he recognizes his own work, and he rises with them; he rejoices in the general prosperity that benefits him. For his country, he has a sentiment analogous to that you feel for your family, and it is even by a kind of egoism that he is interested in the State.

Often the European sees in the public official only force; the American sees the law. So it can be said that in America, a man never obeys a man, but obeys justice or the law.

Consequently, he has conceived an often exaggerated, but almost always salutary opinion of himself. Without fear, he relies on his own powers that seem to him all sufficient. An individual conceives the idea of some enterprise; even if this enterprise has some direct connection with the well-being of society, it does not occur to him to address himself to public authority to gain its support. He makes his plan known, offers to carry it out, calls other individual powers to his aid, and struggles hand-to-hand against all obstacles. Often, doubtlessly, he succeeds less than if the State took his place; but in the long run the general result of all of these individual undertakings surpasses by a great deal what the government would be able to accomplish.a

Since administrative authority is placed next to the administered, and in a way represents them, it excites neither jealousy nor hate. Since its means of action are limited, each person feels that he cannot rely on it alone.

So when the administrative power intervenes within the circle of its attributions, it does not find itself alone, as in Europe. No one believes that the duties of individuals have ceased because the public representative happens to act. On the contrary, each person guides, supports and sustains him.

By joining the action of individual powers with the action of social powers, you often succeed in doing what the most concentrated and energetic administration would be unable to carry out.^I

I could cite many facts to support what I am advancing; but I prefer to present only one and to choose the one I know best.

In America, the means put at the disposal of authority to uncover crimes and to pursue criminals are few.

Police control does not exist; passports are unknown. Officers of the court in the United States cannot be compared to ours. The agents of the public prosecutor’s office are few; [they do not communicate with each other;] they do not always have the right to initiate legal proceedings; preliminary investigation is rapid and oral. I doubt, however, that, in any country, crime as rarely escapes punishment.

The reason for it is that everyone believes himself interested in providing proof of the crime and in catching the offender.

I saw, during my stay in the United States, the inhabitants of a county, where a great crime had been committed, spontaneously form committees for the purpose of pursuing the guilty party and delivering him to the courts.

In Europe, the criminal is an unfortunate who is fighting to hide from the agents of power; the population in a way helps in the struggle. In America, he is an enemy of the human species, and he has all of humanity against him.

I believe provincial institutions useful to all peoples; but none seems to me to have a more real need for these institutions than the one whose social state is democratic.

In an aristocracy, a certain order is sure to be maintained in the midst of liberty.

Since those who govern have a great deal to lose, order has a great interest for them.

In an aristocracy, it can be said as well that the people are sheltered from the excesses of despotism, because organized forces are always found, ready to resist the despot.

A democracy without provincial institutions possesses no guarantee against similar evils.

How can a multitude that has not learned how to make use of liberty in small things, be made to support it in larger ones?

How to resist tyranny in a country where each individual is weak, and where individuals are united by no common interest?

So those who are afraid of license and those who fear absolute power must equally desire the gradual development of provincial liberties.b

I am convinced, moreover, that there are no nations more at risk of falling under the yoke of administrative centralization than those whose social state is democratic.

Several causes lead to this result, but among others, these:

The permanent tendency of these nations is to concentrate all governmental power in the hands of the single power that directly represents the people, because, beyond the people, nothing more is seen except equal individuals merged into a common mass.

Now, when the same power is already vested with all the attributes of government, it is highly difficult for it not to try to get into the details of administration [{so you often see democratic peoples simultaneously establish liberty and the instruments of despotism}]; and it hardly ever fails to find eventually the opportunity to do so. We have witnessed it among ourselves.

[≠If we shift our view to times closer to us, we see a strange confusion prevailing in most of the States of Europe. Kings descend into the administration of {the narrowest communal interests}.≠]c

In the French Revolution,d there were two opposing movements that must not be confused: one favorable to liberty, the other favorable to despotism.e

In the old monarchy, the King alone made the law.

Below the sovereign power were found some remnants, half destroyed, of provincial institutions. These provincial institutions were incoherent, poorly ordered, often absurd. In the hands of the aristocracy, they had sometimes been instruments of oppression.

The Revolution has declared itself against royalty and provincial institutions at the same time. It has mingled in the same hatred all that had preceded it, absolute power and what could temper its rigors; it has been simultaneously republican and centralizing.

This double character of the French Revolution is a fact that the friends of absolute power have laid hold of with great care. When you see them defend administrative centralization, do you think that they are working in favor of despotism? Not at all; they are defending one of the great conquests of the Revolution.^K In this way, they can remain a man of the people and an enemy of the rights of the people, secret servant of tyranny, and declared friend of liberty.f

I have visited the two nations that have developed the system of provincial liberties to the highest degree, and I have heard the voice of the parties dividing these nations.

In America, I found men who secretly longed to destroy the democratic institutions of their country. In England, I found others who openly attacked the aristocracy; I did not meet a single one who did not view provincial liberty as a great good.g

In these two countries, I saw the ills of the State imputed to an infinity of diverse causes, but never to town liberty.

I heard citizens attribute the greatness or the prosperity of their native land to a multitude of reasons; but I heard all of them put provincial liberty in the first rank and list it at the head of all the other advantages.

When men, who are naturally so divided that they do not agree on either religious doctrines or on political theories, fall into agreement on a single fact, a fact that they can best judge, since it occurs everyday before their eyes, am I to believe that this fact might be wrong?

Only peoples who have only a few or no provincial institutions deny their utility; that is, only those who do not know the thing at all, speak ill of it.

CHAPTER 6a

Of the Judicial Power in the United States and Its Action on Political Societyb

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

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

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

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

When the Parlement of Paris made remonstrances and refused to register an edict, when on its own it summoned a corrupt official to appear before it, the political action of the judicial power could be recognized. But nothing similar is seen in the United States. [{The American judge never enters into direct conflict [v: is never found battling] with the political powers strictly defined.}]

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

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

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

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

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

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

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

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

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

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

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

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

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

In America, political theories are simpler and more rational.

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

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

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

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

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

It would be still more unreasonable to give English judges the right to resist the will of the legislative body, because Parliament, which makes the law, makes the constitution as well, and because, as a result, a law cannot in any case be called unconstitutional when it issues from the three powers.

Neither of these two arguments applies to America.

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

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

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

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

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

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

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

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

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

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

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

If the judge could challenge the legislators only head on, there are times when he would be afraid to do so; there are other times when partisan spirit would push him daily to dare to do so. Thus the laws would be challenged when the power from which they came was weak, and you would submit to them in silence when that power was strong. That is to say that the laws would often be challenged when respect for them would be most useful, and would be respected when oppression in their name would become easy.h

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

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

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

[c. ] Letter of Édouard de Tocqueville to his brother, Alexis:

[d. ] “The power to have men and money, such in sum is governmental centralization” (YTC, CVb, p. 12).

Beaumont thus summarizes the intervention of Tocqueville in favor of governmental centralization during the session of the constitutional commission on 31 May 1848:

[e. ] “Administrative centralization does not create strength within a nation, but despotism” (YTC, CVb, p. 25).

[f. ] Variant: “<≠The first, which I will call governmental centralization, is the concentration in a single hand or in the same place of the great social powers. The power to make the general laws and the strength to force obedience to them. The direction of the foreign affairs of the State and the means to succeed in them.

The second type of centralization, which I will name administrative centralization, is the concentration in a single hand or in the same place of the power to regulate the ordinary affairs of society, to rule the diverse parts of the State in the direction of their special affairs and to be in charge of the daily details of their existence.≠>”

[g. ] “In France the administrative power has been placed at the center, not because it was in itself more useful there, perhaps the opposite, but in order to increase political power, which is different” (YTC, CVb, p. 10).

[h. ] In the essay on the French administration drafted in response to the request for information from his son, Hervé de Tocqueville remarks:

After having praised the effects of centralization on the accountability of the French towns, he adds:

And further along:

It is difficult to establish the precise influence that the report of the author’s father, the letters of Chabrol and Blosseville, the conversations and correspondence with Sparks had on the formation of Tocqueville’s ideas on centralization. If all of this material was able to help him clarify several points, it seems that his ideas on centralization date at least from the first days of his journey on American territory.

In a letter to his father of 3 June 1831, that is, four months before asking for help, Tocqueville already referred to centralization: “All that there is of good in centralization seems to be as unknown as what there is of bad; no central idea seems to regulate the movement of the machine” (OCB, VII, p. 21). The theme is found again a month later in a letter also addressed to his father:

Two months before meeting Sparks, 29 June 1831, he had written to Louis de Kergorlay in nearly identical terms (Correspondance avec Kergorlay,OC, XIII, I, pp. 233-34). See George W. Pierson, Tocqueville and Beaumont in America, p. 363; and James T. Schleifer, The Making of Tocqueville’s “Democracy in America,” pp. 122-23. See note q for p. 150.

Tocqueville returns to this subject in his report on Algeria (Écrits et discours politiques,OC, III, 1, especially pp. 331-38). There he denounces an excess of administrative centralization and a lack of political centralization. Algeria opens to Tocqueville a potential for political creativity in which he envisions using the theoretical tools forged in America. More than once, Tocqueville encounters in French Africa situations entirely similar to those at the beginning of the American colonies. His intervention in parliament retains a certain transatlantic flavor easy to detect. The project of buying land in Algeria with Kergorlay, which would come to nothing, is there to attest to his interest in the colony. See the reports and parliamentary interventions, published in the Moniteur Universel, 24 and 25 May, and 1, 9, 10, 11, and 12 June 1847 (reproduced in OCB, IX, pp. 423-512, and in Écrits et discours politiques,OC, III, 1, pp. 308-409). His travel notes and other writings on Algeria also contain numerous references to centralization and to other American subjects. Cf. note f for p. 1210 of volume II.

[j. ] In the manuscript: “. . . to diminish the number of citizens.. . .”

[k. ] In the manuscript: “. . . the greatness of a man, but not that of the State.”

Gustave de Beaumont:

[m. ] The same idea appears in Beaumont, Irlande, vol. II, pp. 157-59.

[n. ] In the margin: “≠Perhaps all of that to delete as irrelevant.≠”

[[*]. ] “≠Truthfully, in France, the provinces have never administered themselves; it was always the authority of one man that was exercised and that regulated, directly or indirectly, all the affairs of society. Only, the administrative range was limited; the Revolution of 1789 just extended it.≠”

[o. ] In the margin: “<{To review the part on centralization and perhaps shorten it. Advice of Beau[mont (ed.)].}>”

[p. ] In the manuscript: “Next to it and close at hand is found an executive power, absolute head of physical force, to compel the minorities to obedience.”

[q. ] In a letter to Ernest de Chabrol, Tocqueville explained:

[[*]. ] The creation of paid and standing military bodies to suppress or to prevent insurrections has already happened in Massachusetts and in Pennsylvania. See Federalist, p. 115 [No. 28 (ed.)].

[r. ] Variant in a draft: “. . . but because the central power is constantly in different hands and is subordinated to popular power, a power eminently variable by nature and, for this reason, incapable of governing society for long” (YTC, CVb, p. 1).

[s. ] In a first version, under a paper glued into place: “{Executive power is nothing while remaining in their hands. This is, moreover, an inherent weakness in completely [uncertain reading (ed.)] democratic government. See the Federalist, p. 213 [No. 48 (ed.)].}”

[t. ] In the margin:

Recall the words of Montesquieu: “No tyranny is more cruel than the one you exercise under the cloak of the laws and with the colors of justice: when, so to speak, you drown the unfortunate on the very plank on which they were saved.” Considérations sur les causes de la grandeur des Romains et de leur décadence, in Œuvres complètes (Paris: Pléiade, 1951), II, chapter XIV, p. 144. Cf. note o for p. 1228 of the fourth volume.

[49. ] The authority that represents the state, even when it does not itself administer, must not, I think, relinquish the right to inspect local administration. I suppose, for example, that a government agent, placed at a set post in each county, might refer crimes that are committed in the towns and in the county to the judiciary. In this case, would not orderly organization be more uniformly followed without compromising the independence of the localities? Now, nothing like this exists in America. Above the county courts, there is nothing; and in a way, only by chance are these courts made officially aware of administrative crimes that they must suppress.

[50. ] China seems to me to offer the most perfect symbol of the type of social well-being that can be provided by a very centralized administration to the people who submit to it. Travelers tell us that the Chinese have tranquillity without happiness, industry without progress, stability without strength, physical order without public morality. Among them, society functions always well enough, never very well. I imagine that when China opens to Europeans, the latter will find there the most beautiful model of administrative centralization that exists in the universe.

[u. ] To the side, in the manuscript: “≠Louis advises placing this elsewhere, but where?≠”

[v. ] In the margin: “≠{The small details of} social {order} are generally neglected, but in short the guarantees essential to man in society exist as much in America as everywhere else.≠”

[x. ] “The admirable effect of republican governments (where they can subsist) is not to present a glimpse of regularity, of methodical order in the administration of a people, but the picture of life. Liberty does not carry out each of its enterprises with the same perfection as intelligent despotism, but in the long run, it produces more than intelligent despotism” (pocket notebook 3, YTC, BIIa, and Voyage,OC, V, 1, p. 184).

[y. ] Original version in one of the drafts:

Tocqueville defends the preeminence of social and intellectual habits over laws; it is therefore inevitable that he finds Montesquieu’s idea of despotism based far too much on legal criteria. The author seems to be more concerned with the problems envisioned by Montesquieu than with the solutions he proposes, which does not, for all that, reduce the influence of the author of Esprit des lois. Nonetheless, Kergorlay denies a stylistic influence of Montesquieu on his friend (“Étude littéraire sur Alexis de Tocqueville,” Correspondant 52 (1861): 758-59): “I would not go so far as to say that Tocqueville never, at any period of his literary life, sought in Montesquieu some models to follow. But it was only in a quite secondary manner, not very lasting and not very effective.” On the other hand, Kergorlay recognizes the influence of Pascal, Voltaire and La Bruyère. On the influence of Montesquieu, see Melvin Richter, “Modernity and Its Distinctive Threats to Liberty: Montesquieu and Tocqueville on New Forms of Illegitimate Domination,” in Michael Hereth and Jutta Höffken, eds., Alexis de Tocqueville. Zur Politik in der Demokratie, Baden Baden: Nomos, 1981, pp. 362-98.

[z. ] Édouard de Tocqueville: “How did Louis XIV, Peter the Great, Frederick, Bonaparte, not give great power to their nations? And with them what became of the free collaboration of wills?” (YTC, CIIIb, 2, p. 113).

[a. ] The example was provided to Tocqueville by Mr. Quincy, President of Harvard University, 20 September 1831 ([non-[alphabetic notebooks 1 and 2, YTC, BIIa, and Voyage,OC, V, 1, pp. 89-90).

[b. ] Once a man has contracted the habit of obeying a foreign and arbitrary will in nearly all the actions of his life, and notably in those that come closest to the human heart, how do you expect him to conceive a true taste for great political liberty and independence in general actions?

Town institutions not only give the art of using great political liberty, but they bring about the true taste for liberty. Without them, the taste for political liberty comes over peoples like childish desires or the hotheadedness of a young man that the first obstacle extinguishes and calms (YTC, CVh, 1, pp. 1-2; the same fragment is found, almost word for word, in YTC, CVe, p. 61).

[c. ] In the margin: “≠That is, you have wanted to make a city without citizens, a republic with subjects [v: servants] submitted to a clerk [v: and transform servants of a clerk into republicans] [v: and place the spirit of liberty in the very midst of servitude].” On the idea of citizenship as participation, see Doris S. Goldstein, “Alexis de Tocqueville’s Concept of Citizenship,” Proceedings of the American Philosophical Society 108, no. 1 (1964): 39-53.

[d. ] “Ask Mr. Feuillet if there is a book that can give basic ideas about the French constitution in 1789” (YTC, CVb, p. 33). Feuillet was the librarian at the Bibliothèque Royale. See note v for pp. 1110-13 of the fourth volume.

[f. ] The manuscript indicates that Tocqueville at one moment considered the possibility of placing here a section entitled of the excellence of town institutions.

[g. ] To the side: “≠Aristocrats and democrats, royalists and republicans.≠”

[a. ] This chapter and the following one are not found in the copy read by friends and family, which suggests that they were included belatedly in the project. From the beginning of the voyage, Tocqueville, as a lawyer, showed a lively interest in how the American judicial power functioned. Notebook F of his travel notes is devoted exclusively to civil and criminal law in America (YTC, BIIa, and Voyage, OC, V, 1, pp. 296-335); and in the first plans of the book (YTC, CVh, 1, pp. 20-31) the judicial power, as well as the civil and criminal laws, occupy an important place. Beyond the notebook cited, a great number of commentaries on the American judicial power appear in the other notebooks of the travel diaries and in the correspondence. There are certain indications that Tocqueville had in particular asked his friend, Élie de Beaumont, judge at Versailles, for information about the French judicial power. We recall that Tocqueville used this method of comparing the situation in France with that in the United States when he considered centralization. A letter from Tocqueville to another magistrate, Ernest de Chabrol, dated November 26, 1831 (YTC, BI a2) contains, along with a description of the American jurisdictional organization, a reference to an earlier note on justices of the peace; the note was a reflection made in a letter (apparently lost) addressed to Élie de Beaumont. Another possible source of information is mentioned in a rough draft: “Speak to Mr. Livingston about the American judicial system” (YTC, CVh, 3, p. 10).

[b. ] Judicial power./

The most original and most difficult part to understand of all the American constitution. Elsewhere there have been confederations, a representative system, a democracy; but no where a judicial power organized as that of the Union.

How the judicial power of the Union is conservative without harming that great principle of the necessity of a single dominating principle in constitutions. It slows, it cannot stop the people, because the latter by changing the constitution can always arrive at what they desire.

How all the laws that challenge the judicial power in America are truly destructive of order and of liberty (YTC, CVh, 5, p. 40).

[c. ] “≠In my eyes, the constitution of the judicial power forms the newest and most original portion of the entire political system of the Americans≠” (YTC, CVh, 4, pp. 16-17).

[d. ] In the margin: “≠The oath is therefore a very rational consequence of very absurd principles.≠”

[e. ] In the margin, with a mark: “≠Is this true?≠”

[g. ] “In France {during the Restoration}, we have often seen the executive power seek to reduce judicial authority, while the democratic party sought with all its efforts to raise it up. It seems to me that on both sides they acted against themselves” (YTC, CVh, 5, pp. 26-27).

[h. ] Note: “≠This is what happened particularly at the time of the constitution of the year VIII. The senate was established as overseer of the other powers, and it had to denounce to the legislative bodies attacks against the constitution. We know that it refrained from doing so on any occasion. Under Napoleon’s son, this very senate could perhaps have hindered the legal course of government.≠”

[j. ] “≠The absence of administrative centralization is more a fortunate circumstance than the result of the wisdom of the law-maker. But the judicial power in the United States is a barrier raised by design against the omnipotence of the majority. It can be considered as the only powerful or real obstacle that the American laws have placed before the steps of the people≠” (YTC, CVh, 4, pp. 16-17).

“Judicial power in general./

“Utility of the judicial power to oppose the encroachments of popular power. See Kent, vol. 1, p. 275” (YTC, CVh, 5, p. 41).