Front Page Titles (by Subject) The Federal Courts' Way of Proceeding - Democracy in America: Historical-Critical Edition, vol. 1
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The Federal Courts’ Way of Proceeding - 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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The Federal Courts’ Way of Proceeding
Natural weakness of the judicial system in confederations.—Efforts that law-makers must make to place, as much as possible, only isolated individuals and not states before the federal courts.—How the Americans succeeded in doing this.—Direct action of the federal courts on ordinary individuals.—Indirect attack against states that violate the laws of the Union.—The decision of the federal judicial system does not destroy provincial law; it enervates it.
I have made known the rights of the federal courts; it is no less important to know how they are exercised.
The irresistible strength of the judicial system, in countries where sovereignty is not divided, comes from the fact that, in those countries, the courts represent the entire nation in a contest with a single individual who has been struck by a judgment. To the idea of law is joined the idea of the force that supports the law.
But in countries where sovereignty is divided, it is not always so. There, the judicial system most often finds itself facing, not an isolated individual, but a fraction of the nation. Its moral power and its physical power are diminished as a result.
So in federal States, the judicial system is naturally weaker; and the one subject to trial, stronger.
The law-maker, in confederations, must constantly work to give the courts a position analogous to the one they occupy among peoples who have not divided sovereignty. In other words, his most constant efforts must strive toward having the federal judicial system represent the nation, and having the one subject to trial represent an individual interest.
A government, whatever its nature, needs to act on the governed in order to force them to give the government what it is owed; it needs to take action against them in order to defend itself from their attacks.
As for the direct action of the government on the governed, in order to force them to obey the law, the Constitution of the United States saw to it that the federal courts, acting in the name of these laws, never had any dealing except with individuals (and that was its highest achievement). In fact, since it had been declared that the confederation formed only one and the same people within the circle drawn by the Constitution, the government, created by this Constitution and acting within its limits, was, as a result, vested with all the rights of a national government, the principal one being to have its injunctions reach ordinary citizens without an intermediary. So when the Union levied a tax, for example, it did not have to apply to the states to collect it, but to each American citizen, according to his share. In turn, the federal judicial system charged with assuring the enforcement of this law of the Union, had to condemn not the recalcitrant State, but the taxpayer. Like the judicial system of other peoples, it found only an individual facing it.d
Note that here the Union itself has chosen its adversary. It has chosen a weak one; it is entirely natural that he succumbs.
But when the Union, instead of attacking, is reduced to defending itself, the difficulty increases. The Constitution recognizes the power of the states to make laws. These laws can violate the rights of the Union. Here, necessarily, the Union finds itself in conflict with the sovereignty of the state that enacted the law. Nothing remains except to chose, from among the means of action, the least dangerous. This means was indicated in advance by the general principles that I stated before.33
You see that, in the case that I have just supposed, the Union would have been able to cite the state before a federal court that would have declared the law void; this would have followed the most natural course of ideas. But, in this way, the federal judicial system would have found itself directly facing a state, something it wanted to avoid as much as possible.
The Americans have thought that it was nearly impossible for a new law, in its execution, not to harm some individual interest.
It is on this individual interest that the authors of the federal constitution rely to attack a legislative measure about which the Union could complain. To this individual interest, they offer a protection.
A state sells lands to a company; one year later, a new law disposes of the same lands in another way, and thus violates the part of the Constitution which forbids changing rights vested by contract. When the one who bought by virtue of the new law presents himself in order to take possession, the owner, who holds his rights from the former law, brings an action before the courts of the Union and has the title of the new owner voided.34 Therefore, in reality, the federal judicial system is grappling with the sovereignty of the state; but it attacks that sovereignty only indirectly and on an application of detail. It thus strikes the law in its consequences, not in its principle. It does not destroy the law; it enervates it.
A final hypothesis remained.
Each state formed a corporation that had a separate existence and separate civil laws; consequently, it could sue or be sued before the courts. A state could, for example, bring suit against another state.
In this case, it was no longer a matter for the Union of attacking a provincial law, but of judging a case in which a state was a participant. It was a case like any other; only the status of the litigants was different. Here the danger noted at the beginning of this chapter still exists. But this time it cannot be avoided; it is inherent in the very essence of federal constitutions that they will always result in creating, in the midst of the nation, individuals powerful enough to make it difficult to use the judicial system against them.
[d. ] In the margin: “≠In this, the judicial power only follows the laws of its nature which lead it to judge only on particular cases. Only a political court can break a legislative measure.≠”
[33. ]See the chapter entitled: “Of the Judicial Power in America [in the United States (ed.)].”
[34. ]See Kent’s Commentaries, vol. I, p. 387.