Front Page Titles (by Subject) Way of Determining the Jurisdiction TN 5 of the Federal Courts - Democracy in America: Historical-Critical Edition, vol. 1
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Way of Determining the Jurisdiction TN 5 of the Federal Courts - 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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Way of Determining the JurisdictionTN 5 of the Federal Courts
Difficulty of determining the jurisdiction of the various courts in confederations.—The courts of the Union given the right to determine their own jurisdiction.—Why this rule attacks the portion of sovereignty that the individual states reserved to themselves.—The sovereignty of these states limited by laws and by the interpretation of laws.—The individual states thus risk a danger more apparent than real.
A first question arose. The Constitution of the United States set up, face to face, two distinct sovereignties, represented in terms of judicial structure by two different court systems; no matter what care was taken to establish the jurisdiction of each of these two court systems, you could not prevent frequent conflicts between them. Now, in this case, who would have the right to establish jurisdiction?
Among peoples who form only one and the same political society, when a question of jurisdiction arises between two courts, it is usually brought before a third that serves as arbiter.
This is easily done because, among these peoples, questions of judicial jurisdiction do not have any relation to questions of national sovereignty.
But above the highest court of an individual state and the highest court of the United States, it was impossible to establish any kind of court that was not either one or the other.
So one of these two courts had to be given the right to judge in its own case and to take or accept cognizance of the matter in dispute. This privilege could not be granted to the various courts of the states; that would have destroyed the sovereignty of the Union in fact, after having established it in law; for interpretation of the Constitution would soon have given back to the individual states the portion of independence that the terms of the Constitution took away from them.
By creating a federal court, the desire had been to remove from the courts of the states the right to settle, each in its own way, questions of national interest and, by doing so, to succeed in shaping a uniform body of jurisprudence for the interpretation of the laws of the Union. The goal would not have been reached at all if the courts of the individual states, while abstaining from judging cases considered federal, had been able to judge them by pretending that they were not federal.
The Supreme Court of the United States was therefore vested with the right to decide all questions of jurisdiction.27
That was the most dangerous blow brought against the sovereignty of the states. It thus found itself limited not only by the laws, but also by the interpretation of the laws; by a known limit and by another that was unknown; by a fixed rule and by an arbitrary one. It is true that the Constitution had set precise limits to federal sovereignty; but each time this sovereignty is in competition with that of the states, a federal court must decide.
The dangers, moreover, with which this way of proceeding seemed to menace the sovereignty of the states were not as great in reality as they appeared to be.
We will see further along that, in America, real strength resides more in the provincial governments than in the federal government. Federal judges sense the relative weakness of the power in whose name they act; and they are more likely to abandon a right of jurisdiction in cases where it is granted to them by law, than they are led to claim it illegally.
[Translator’s Note 5:]Compétence, in relation to the courts, has a more narrowly legal, a more restricted meaning in French than competence would have in English; the English word jurisdiction is closer to the meaning.
[27. ] Moreover, to make the cases of jurisdiction less frequent, it was decided that, in a very large number of federal cases, the courts of the individual states would have the right to decide concurrently with the courts of the Union; but then the losing party would always have the right to appeal to the Supreme Court of the United States. The Supreme Court of Virginia contested the right of the Supreme Court of the United States to hear an appeal of its decisions, but unsuccessfully. See Kent’s Commentaries, vol. I, pp. 300, 370, and following. See Story’s Commentaries, p. 646, and the organic law of 1789, Laws of the United States, vol. I, p. 53.