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Legislative Powers: r [difference between the constitution of the senate and that of the house of representatives] - 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 Powers:r[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 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

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.

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.

[r. ] In the manuscript: “legislative power.”

[s. ] Senate./

The constitution of the Senate is the least logical and the least rational part of the Constitution of the United States. That is what Hamilton remarks in the Federalist. All of his discussion on this point shows great distress to see this system introduced, though he considers it a necessity given the state of opinion.

The equal representation of the states in the Senate goes directly against the principle of the Constitution to create a national, not a federal government.

In practice, however, I believe few disadvantages result from this anomaly. Once the majority is well and constitutionally established in the House of Representatives, a power enormously popular by its nature, the Senate is forced to go along.

You could be astonished to see the Senate charged with participating in a treaty. . . . But this power, though not expressed in all constitutions, exists in fact among all free peoples, even in monarchies.

In America, as among us, all the preliminary negotiations are done, moreover, by the executive power acting alone. It is the treaty itself that needs the support of the Senate (YTC, CVh, 1, pp. 42-43).

[t. ] “Political assemblies./

“The more numerous they are, the more prone they are to the oligarchical direction of some members. See Federalist, p. 235 [No. 58 (ed.)].

“January 30, 1832, Washington. Small number of the members of Congress” (YTC, CVe, p. 51; this note is not reproduced in Voyage,OC, V, 1).

[u. ] “Ask Mr. Livingston or other Americans at the nomination of the King what the current rule of apportionment for the representatives is” (YTC, CVb, p. 34).

[14. ]Every ten years, Congress again fixes the number of deputies that each state must send to the House of Representatives. The total number was 69 [65 (ed.)] in 1789; it was 240 in 1833. (American Almanac, 1834, p. 194 [124 (ed.)].)

The Constitution had said that there would not be more than one representative for 30,000 inhabitants; but it did not set a lower limit. Congress has not believed that it had to increase the number of representatives in proportion to the growth of the population. By the first law that dealt with this subject, April 14, 1792 (see Laws of the United States by Story, vol. I, p. 235), it was decided that there would be one representative for 33,000 inhabitants. The last law, which occurred in 1832, set the number at 1 representative for 48,000 inhabitants. The population represented is composed of all free men and three-fifths of the number of slaves.

[v. ] Hervé de Tocqueville: “I would prefer new, for if they are young in terms of establishment, they are old in terms of civilization” (YTC, CIIIb, 3, p. 12).