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Of the Federal Courts 24 - 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.
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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.
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Of the Federal Courts24
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 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 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
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.
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
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.
[24. ] See ch. VI entitled “Of the Judicial Power in the United States.” This chapter shows the general principles of the Americans in the matter of the judicial system. Also see the federal Constitution, art. 3.
See the work with the title: The Federalist, Nos. 78-83 inclusive. Constitutional Law, Being a View of the Practice and Jurisdiction of the Courts of the United States, by Thomas Sergeant.
See Story [Commentaries (ed.)], pp. 134-62, 489-511, 581-668. See the organic law of September 24, 1789, in the collection entitled: Laws of the United States, by Story, vol. I, p. 53.
[Kent’s Commentaries, vol. I, p. 275 [273 (ed.)] and following.]
[25. ]It is federal laws that most need courts, and yet federal laws have least accepted them. The cause is that most confederations have been formed by independent states that had no real intention of obeying the central government; and, while giving it the right to command, they carefully reserved to themselves the ability to disobey.