Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow How the Federal Constitution Is Superior to the State Constitutions - Democracy in America: Historical-Critical Edition, vol. 1

Return to Title Page for Democracy in America: Historical-Critical Edition, vol. 1

Search this Title:

How the Federal Constitution Is Superior to the State Constitutions - 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.


How the Federal Constitution Is Superior to the State Constitutions

How the Constitution of the Union can be compared to those of the individual states.—The superiority of the federal Constitution must be attributed particularly to the wisdom of the federal law-makers.—The legislature of the Union less dependent on the people than those of the states.—The executive power freer in its sphere.—The judicial power less subject to the desires of the majority.—Practical consequences of this.—The federal law-makers have mitigated the dangers inherent in democratic government; the law-makers of the states have heightened these= dangers.

The federal Constitution differs essentially from the constitutions of the states in the purpose that it intends, but it is highly similar in the means to achieve this purpose. The object of government is different, but the forms of government are the same. From this special point of view, they can usefully be compared.

I think that the federal Constitution is superior to all of the state constitutions. This superiority stems from several causes.

The present Constitution of the Union was formed only after those of most of the states; so the Union could profit from acquired experience.

You will be convinced, nonetheless, that this cause is only secondary, if you consider that, since the establishment of the federal Constitution, the American confederation has increased by eleven new states, and that these new states have nearly always exaggerated rather than mitigated the defects existing in the constitutions of their precursors.

The great cause of the superiority of the federal Constitution is in the very character of the law-makers.

At the time when it was formed, the ruin of the American confederation seemed imminent; it was obvious to all, so to speak. In this extremity, the people chose, perhaps not the men they loved most, but those they respected most.

I have already pointed out above that nearly all the law-makers of the Union had been remarkable by their enlightenment and more remarkable still by their patriotism.

They had all risen in the midst of a social crisis, during which the spirit of liberty had constantly to struggle against a strong and dominating authority. When the struggle ended, and while the excited passions of the crowd were, as usual, still fixed on combating dangers that for a long time no longer existed, these men had stopped; they had cast a calmer and more penetrating eye on their country; they had seen that a definitive revolution was accomplished, and that henceforth the perils that threatened the people could only arise from the abuses of liberty.e What they thought, they had the courage to say, because deep in their hearts they felt a sincere and passionate love for this very liberty; they dared to speak of limiting it, because they were certain of not wanting to destroy it.35

Most of the constitutions of the states give a term of one year to the house of representatives and two years to the senate. In this way the members of the legislative body are tied constantly and in the closest way to the slightest desires of their constituents.

The law-makers of the Union thought that this extreme dependence of the legislature distorted the principal effects of the representative system, by placing in the people themselves not only the source of powers, but also the government.

They increased the length of the electoral mandate in order to allow the deputy greater use of his free will.

The federal Constitution, like the different constitutions of the states, divided the legislative body into two branches.

But in the states, these two parts of the legislature were composed of the same elements and followed the same mode of election. As a result, the passions and will of the majority emerged as easily and found an organ and an instrument as rapidly in one as in the other of the houses. This gave a fierce and hasty character to the making of laws.

The federal Constitution also had the two houses come out of the votes of the people; but it varied the conditions of eligibility and the mode of election. So, if one of the two legislative branches did not represent interests different from those represented by the other, as in certain nations, at least it represented a higher wisdom.

To be a Senator you had to have reached a mature age; and a small assembly, itself already elected, was charged with the election.

Democracies are naturally led to concentrate all social force in the hands of the legislative body. The latter, being the power that comes most directly from the people, is also the one that most partakes of the omnipotence of the people.

So, in the legislative body, you notice an habitual tendency that leads it to gather all kinds of authority within itself.

This concentration of powers, at the same time that it singularly harms the good management of public affairs, establishes the despotism of the majority.

The law-makers of the states have frequently surrendered to these democratic instincts; those of the Union always fought courageously against them.

In the states, executive power is placed in the hands of a magistrate who appears to be placed alongside the legislature, but who, in reality, is only a blind agent and passive instrument of its will. From where would he draw his strength? In the length of his term in office? Generally, he is named for only one year. In his prerogatives? He has, so to speak, none at all. The legislature can reduce him to impotence by granting the execution of its laws to special committees drawn from its midst. If it wanted, it could, in a way, nullify him by taking away his salary.

The federal Constitution has concentrated all the rights of the executive power, as well as all of its responsibility, in a single man. It gave the President a four-year term; it assured him his salary during the entire length of his term in office; it created a group of supporters for him and armed him with a qualified veto. In a word, after carefully drawing the sphere of executive power, it sought, within this sphere, to give the executive power as strong and as free a position as possible.

The judicial power, of all the powers, is the one that, in the state constitutions, remained least dependent on the legislative power.

Nonetheless, in all the states, the legislature retained the authority to set the salaries of judges, which necessarily subjected the former to immediate legislative influence.

In certain states, judges are appointed only for a time, which again removes a large part of their strength and freedom.

In others, legislative and judicial powers are entirely mixed. The Senate of New York, for example, serves as the highest court of the state for certain trials.

The federal Constitution has, on the contrary, carefully separated the judicial power from all the others. In addition, it made judges independent by declaring their salaries fixed and making their office irrevocable.

The practical consequences of these differences are easy to see. It is clear to all attentive observers that the affairs of the Union are conducted infinitely better than the particular affairs of any state.

The federal government is more just and more moderate in its action than the state governments. There is more wisdom in its views, more continuity and intelligent design in its projects, more skill, steadiness and firmness in the execution of its measures.

A few words suffice to summarize this chapter.

Two principal dangers menace the existence of democracies:

The complete subservience of the legislative power to the will of the electoral body.

The concentration, in the legislative power, of all the other powers of government.

The law-makers of the states favored the development of these dangers. The law-makers of the Union did what they could to make them less to be feared.

[e. ] In the manuscript: “of their power {of their liberty}.”

[35. ]In this period, the celebrated Alexander Hamilton, one of the most influential framers of the Constitution, was not afraid to publish the following in the Federalist, No. 71 [p. 307]. He said:

There are some,” he said, “who would be inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted.

The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.

It is a just observation that the people commonly intend the public good. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset as they continually are by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it.

When occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.