Front Page Titles (by Subject) Summary Picture of the Federal Constitution j - Democracy in America: Historical-Critical Edition, vol. 1
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Summary Picture of the Federal Constitution j - Alexis de Tocqueville, Democracy in America: Historical-Critical Edition, vol. 1 
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.
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.
This bilingual edition of Tocqueville’s work contains a new English translation of the French critical edition published in 1990. The copyright to the French version is held by J. Vrin and it is not available online. The copyright to the English translation, the translator’s note, and index is held by Liberty Fund.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Summary Picture of the Federal Constitutionj
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 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
[j. ] Union./
The Union has an artificial sovereignty; the states, a natural sovereignty; cause of difference in real strength (perhaps subtle)./
Power of the Union in what concerns it: The Union has more extensive and more essential prerogatives, in what concerns it, than a number of States forming only a single body have had (YTC, CVh, 1, p. 51).
[k. ] In the margin: “I believe that the principle of the unity of the American people regarding the matters provided for in the Constitution—principle rich in consequences and which you come back to constantly—must be placed at the beginning of this part (I do not know where).”
[6. ]See amendments to the federal Constitution. Federalist, No. 32. Story [Commentaries (ed.)], p. 711. Kent’s Commentaries, vol. I, p. 364.
Note indeed that, whenever the Constitution has not reserved to Congress the exclusive right to regulate certain matters, the states can do so, while waiting for Congress to choose to take charge of them. Example: Congress has the right to pass a general bankruptcy law; it doesn’t do so; each state could pass one in its own way. This point was established, moreover, only after discussion before the courts. It is only jurisprudence.
[7. ] The action of this court is indirect, as we will see later.