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CHAPTER 7: The Bond between the States and the Central Government - James T. Schleifer, The Making of Tocqueville’s Democracy in America 
The Making of Tocqueville’s Democracy in America, Foreword by George W. Pierson (2nd edition) (Indianapolis: Liberty Fund, 2000).
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The Bond between the States and the Central Government
During his first six months in the New World, Tocqueville had had little chance to understand the workings of American federalism.1 He had heard frequently about state and local government in the United States, but few of his hosts had spoken about the complex relationship between the federal government in Washington and the governments of the twenty-four states. An early impression that “in this lucky country, there truly is no government” had seemed particularly true of the republic’s central authority.2
Only twice had he learned anything specific about the nature of the federal bond in America. In a conversation of October 1831 Tocqueville had asserted to a Mr. Clay that “your country is composed of little almost entirely separate nations,” and Clay had reacted with hearty but misleading agreement. Two months later more profound remarks had come from Timothy Walker of Cincinnati, who had stressed the inherent rivalry between the state and federal governments by describing various “points of collision” between the states and the Union and noting that “in all the States there is a fund of jealousy of the central government.”3 In early December 1831, these two comments constituted Tocqueville’s meager stock of recorded ideas about the connection between the American federal and state governments. But somewhere along his route he had purchased a copy of the Federalist,4 and on 27 December he began to repair the gap in his knowledge.
Since previous scholars have consistently either overlooked or neglected to pursue various clues contained in his travel diaries, drafts, and original working manuscript, the edition of the Federalist which Tocqueville used has until now been unknown. Several English passages copied from the famous essays into Tocqueville’s papers indicate that he relied upon an American edition of “Publius’s” work.5 (Occasionally rough French translations accompany these excerpts, but these versions duplicate no French edition of the Federalist and are presumably Tocqueville’s own.)6
Other hints consist of the many references in drafts and working manuscript to specific pages of his copy. By securing samples of all American editions published before 18357 and comparing each to these citations, it has been possible to identify the matching edition and to conclude a search which has always promised to provide new insights about the Frenchman’s reliance on “Publius.”
Tocqueville’s Federalist was the one published as a single volume in the year 1831 by Thompson and Homans of Washington, D.C., and labeled as “A New Edition with a Table of Contents and a Copious Alphabetical Index. The Numbers Written by Mr. Madison Corrected by Himself.” The recent date, the full index, and the imprimatur of Madison had all probably appealed to the curious visitor.
From 27 to 29 December 1831, Tocqueville read and took notes on his acquisition, filling several pages of travel notebook E with observations and excerpts collected under the titles “Union: Central Government” and “Sovereignty of the People.” He specifically cited numbers 12, 15, 21, 23, and 18, referred to “others” (probably numbers 19 and 20, which continued the discussion of topics introduced in 18), and presumably had at least glanced at several additional papers as well.8 It is noteworthy that his initiation came largely from the pen of Alexander Hamilton, who had written or collaborated on all of the essays which Tocqueville read first and who most vehemently argued for a strong and energetic central government.9
In papers 15 through 22, in order to demonstrate the unique advantages of the proposed American Constitution, the authors of the Federalist surveyed the histories of previous confederations and recounted the misfortunes of the American republic under the Articles of Confederation.10 The Constitution, they observed, would remedy the chronic weakness which had plagued the nation during the period of the Articles by adopting a novel principle: the new national government would act directly upon individuals.
Tocqueville quickly grasped the significance of “Publius’s” point. “The old Union,” he wrote in his notebook, “governed the States, not the individuals.... The new federal government is in very truth the government of the Union in all things within its competence; it addresses, not the States, but individuals; its orders are addressed to each of the American citizens, whether he is born in Massachusetts or in Georgia, and not to Massachusetts or to Georgia.”11
At the same time, the Federalist also taught him that in theory each government in America had its own area of interest, but that in fact these spheres were not always clearly delimited. “If the circumstances of our country,” wrote Hamilton, “are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the objects, as far as it can be done, which shall appertain to the different provinces or departments of power.”12 So Tocqueville was quickly aware that the problem of separating the responsibilities of the state and national governments was a chronically troublesome characteristic of American federalism.
Readings from the Federalist and recollections of earlier lessons also led him to observe in a note dated 29 December 1831:
This much can be stated, that it is only a very enlightened people that could invent the federal constitution of the United States and that only a very enlightened people and one accustomed to the representative system, could make such complicated machinery work, and know how to maintain the different powers within their own spheres.... The constitution of the United States is an admirable work, nevertheless one may believe that its founders would not have succeeded, had not the previous 150 years given the different States of the Union the taste for, and practice of, provincial governments, and if a high civilization had not at the same time put them in a position to maintain a strong, though limited, central government.”13
Several already familiar ideas hid just beneath the surface of these comments. Tocqueville here implied, first of all, that the political precepts involved in the workings of American federalism appeared on all political levels in the United States. Concerning, for example, the hard task of assigning state and federal responsibilities, he had noted only the day before that “it is an axiom of American public law that every power must be given full authority in its own sphere which must be defined in a way that prevents it stepping beyond it: that is a great principle and one worth thinking about.”14
Secondly, he once again acknowledged that such basic principles were deeply embedded in the national experience. As he would later declare in the 1835 Democracy: “The federal government was the last to take shape in the United States; the political principles on which it was based were spread throughout society before its time, existed independently of it, and only had to be modified to form the republic.... The great political principles which now rule American society were born and grew up in the state; there is no room for doubt about that.”15
Finally it seemed to him that the Americans, as a whole, were the most broadly educated and politically experienced of all peoples. This conviction, first announced in Boston three months earlier,16 would soon find an additional proponent in Joel Poinsett, who would remark to Tocqueville in January 1832: “The Mexicans have ended by adopting, bar some unimportant exceptions, the United States Constitution. But they are not yet advanced enough to use it as we do. It is a complicated and difficult instrument.”17
Later, in the 1835 Democracy, Tocqueville would combine his own observations based on the Federalist with the evidence supplied by Poinsett and others and describe at length the fragile intricacy of the American Constitution.
The government of the Union rests almost entirely on legal fictions. The Union is an ideal nation which exists, so to say, only in men’s minds and whose extent and limits can only be discerned by the understanding.
When the general theory is well understood, there remain difficulties of application; these are innumerable, for the sovereignty of the Union is so involved with that of the states that it is impossible at first glance to see their limits. Everything in such a government depends on artificially contrived conventions, and it is only suited to a people long accustomed to manage its affairs ...
... The Constitution of the United States is like one of those beautiful creations of human diligence which gives their inventors glory and riches but remains sterile in other hands.18
A second important printed source of information about American federalism which Tocqueville first used during December came from Chancellor James Kent, who had met the two French visitors in New York and had later thoughtfully forwarded the four thick volumes of his Commentaries on American Law.19 While assimilating parts of the Federalist, Tocqueville also perused the first two volumes of Kent’s massive work, which he would later describe as “highly respected; it presents a tableau of all the principles contained in the political and civil laws of the United States.”20
During the early months of his American voyage, he had learned from Albert Gallatin, John Canfield Spencer, and others that in the United States judges possessed the right to declare laws unconstitutional and were, therefore, a considerable force in the political affairs of the nation, serving as a barrier to democratic excesses and to legislative aggression against the other branches of government.21 So many Americans had concurred in these ideas that on 16 October Tocqueville had remarked in his notebook on “Civil and Criminal Law in America” that “the provisions concerning the powers of the judges are among the most interesting features of American constitutions.”22
But not until he read the Chancellor’s tomes in December did he realize that the American judiciary also played a necessary role in the relationship between the states and federal government. “I see clearly,” he concluded after reading Kent’s discussion of the problem of conflicting jurisdictions, “that the Court of the United States should have the effect of forcing each State to submit to the laws of the Union, but only when it is seized of a case. But when there is a violation of the laws of the Union and no one complains, what happens then?”23
So by New Year’s Day 1832, after dipping into the writings of both “Publius” and Kent, Tocqueville had not only learned to appreciate the astounding subtlety of American federalism and discerned the principle which distinguished the Union from all other confederations—the central government acted directly upon individuals—but he had also perceived the major weak point in the system: the definition and maintenance of proper bounds for the state and national governments. Discovery had also been made by then of the admittedly inadequate device, the power of judges to declare laws unconstitutional, which the Americans had invented to remedy this dangerous flaw. Already the essential points of a penetrating analysis of American federalism were firmly in Tocqueville’s mind.
After the return to France, he and his two American aides, Francis J. Lippitt and Theodore Sedgwick, began, in the early months of 1833, to digest an already formidable collection of materials on the legal and political structures of the United States. Tocqueville now added several other works to his list of major authorities, including two volumes of Thomas Jefferson’s papers, selected by L. P. Conseil and entitled Mélanges politiques et philosophiques extraits des mémoires et de la correspondance de Thomas Jefferson,24 and Joseph Story’s one-volume abridgement of his larger work, Commentaries on the Constitution of the United States.25 “The book of M. Conseil,” Tocqueville would later write, “is assuredly the most valuable document that has been published in France on the history and the legislation of the United States.”26
From his study of these and other sources, a more complete picture of America’s federal system began to emerge. As early as 3 December 1831, Timothy Walker had voiced deep concern over the internal rivalries which strained the federal bonds, and now, during a rereading of the Federalist, Tocqueville noticed that the authors manifested an anxiety not unlike Walker’s about the antagonism between the states and the Union. Normally, Hamilton observed, “Power controlled or abridged is almost always the rival or enemy of that power, by which it is controlled or abridged.”27 Applied to the American federation, this principle exposed the states as “a complete counterpoise, and, not infrequently, dangerous rivals to the power of the Union.”28 Moreover, Hamilton assured his reader in Paper Number 17, the advantage in any clash between these natural competitors rested unquestionably with the states. “It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities.”29
Here was an idea far beyond Walker’s comment about conflict. According to Hamilton, one of the architects of the Union, the states rather than the national government dominated the American federation. As Tocqueville developed a late revision of his large chapter entitled “The Federal Constitution,”30 he recalled the statesman’s words: “It is even easy to go farther and it is necessary to say with the celebrated Hamilton in the Federalist that of the two sovereignties the strongest is certainly the sovereignty of the state. In fact the more one examines the constitutions of the United States the more one begins to think that if the power of the law-maker has gone as far as lessening the probability of a struggle between the two rival sovereignties, it has not been able to assure that, in case of struggle, the strength of the Union will be preponderant or even equal to that of the states.”31
In 1835 Tocqueville would offer a similar version of this passage, but with two significant changes. First, in the published Democracy Tocqueville would refrain from flatly declaring that “of the two sovereignties the strongest is certainly the sovereignty of the state.” Secondly and more interestingly, all mention of Hamilton or the Federalist would be deleted, and he would therefore neglect to indicate a major source of his ideas about the power and the aggressiveness of the states.32
In Number 17, Hamilton had also summarized the reasons for the alleged predominance of the state governments:
“It is a known fact in human nature,” the American explained, “that its affections are commonly weak in proportion to the distance or diffusiveness of the object: Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each state would be apt to feel a stronger bias towards their local governments than towards the government of the Union.... This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation.
“The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations ... will form so many rivulets of influence, running through every part of the society.... The operations of the national government, on the other hand, [fall] less immediately under the observation of the mass of the citizens.... Relating to more general interests, they will be less apt to come home to the feelings of the people.”33
Similar arguments appeared elsewhere in the Federalist. “Many considerations ... seem to place it beyond doubt that the first and most natural attachment of the people will be to the government of their respective States,” James Madison remarked in Number 46. “By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant. And with the members of these will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected more strongly to incline.”34
Although nowhere in Tocqueville’s papers is there any hint that he noted these particular paragraphs by Hamilton and Madison, his explanation in the 1835 Democracy of why the states kept “the love and the prejudices of the people” would strongly echo their words. If the similarity between his arguments and those in the Federalist was not merely coincidental, then Tocqueville once again neglected to give credit to “Publius.”35
One author of the Federalist also attempted a general description of the American Union. “The government of the United States,” Tocqueville wrote in his manuscript, “is not truly speaking a federal government. It is a national government of which the powers are limited. Important. Blend of national and federal in the Constitution.” A citation followed: “See Federal. [Federalist] p. 166.”36
In Paper Number 39, Madison presented a detailed analysis of the nature of the Union and, on page 166, concluded: “The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both.”37
“Neither, nor, but a mixture” was hardly enough to satisfy Tocqueville, who proceeded to create a label of his own for the American federation. In the margin of the working manuscript, after cataloguing four general types of government, “temporary alliance—league; durable alliance—confederation; incomplete national government; complete national government,” he declared that “the Union is not a confederation,38 but an incomplete national government.”39
This original classification, based in part upon the thirty-ninth paper of the Federalist, would appear in the 1835 Democracy:
A form of society is ... discovered in which several peoples really fused into one in respect of certain common interests, but remained separate and no more than confederate in all else.
Here the central power acts without intermediary on the governed, administering and judging them itself, as do national governments, but it only acts thus within a restricted circle. Clearly here we have not a federal government but an incomplete national government. Hence a form of government has been found which is neither precisely national nor federal; but things have halted there, and the new word to express this new thing does not yet exist.40
Justice Story’s Commentaries amply reinforced the impressions which Tocqueville had received from Chancellor Kent about the special role of the American judiciary,41 but it was primarily directly from the Federalist that he gathered additional information about how the courts operated to resolve conflicts between Washington and the states and how the federal judiciary also influenced the balance between the rival powers.
In a draft entitled “Federal Courts,” he wrote: “Utility and necessity for a federal court. Disadvantages resulting from the contrary. Fed. [Federalist] p. 93.”42
There Hamilton, special champion of a strong and independent judiciary, discussed
A circumstance which crowns the defects of the Confederation...—the want of a judicial power.... Laws are a dead letter without courts to expound and define their true meaning and operation.... To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL.... If there is in each state a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts.... To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest....
This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradiction to be expected from difference of opinion there will be much to fear from the bias of local views and prejudices and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws.43
Tocqueville continued in his draft: “It is quite true that the sovereignty of the Union is circumscribed; but when it is in competition with the sovereignty of the States, it is a federal court which decides. p. 165.”44
“It is true,” Madison explained, again in Number 39, “that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general government.... Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and it ought to be established under the general rather than under the local governments, or to speak more properly, that it could be safely established under the first alone, is a proposition not likely to be combated.”45
The lesson was obvious. Only the federal judiciary promised to check the aggressive power of the states without, at the same time, inflaming the dangerous rivalry which was built into the Union. The 1835 Democracy would read:
To entrust the execution of the Union’s laws to courts established by [the states] would be handing over the nation to foreign judges.
Furthermore, each state is not only foreign to the Union at large but is its perpetual adversary, since whatever authority the Union loses turns to the advantage of the states.
Thus, to make the state courts enforce the laws of the Union would be handing the nation over to judges who are prejudiced as well as foreign.
Besides this, it was not only their character which made the state courts incapable of serving the national end, but even more their number.
... How could [a government] carry on if its fundamental laws could be interpreted and applied in twenty-four different ways at the same time? Such a system would be equally contrary to reason and to the lessons of experience....46
The intention in creating a federal tribunal was to deprive the state courts of the right to decide, each in its own way, questions of national interest.... That aim would not have been achieved if the courts of the particular states, while abstaining from judging cases as federal, had been able to judge them by pretending that they were not federal.
The Supreme Court of the United States was therefore entrusted with the right to decide all questions of competence.
That was the most dangerous blow dealt against the sovereignty of the states. It was now restricted not only by the laws but also by the interpretation of the laws.... It is true that the Constitution had fixed precise limits to federal sovereignty, but each time that that sovereignty is in competition with that of the states, it is a federal tribunal that must decide.47
Here once again was a silent reflection of the views of Hamilton and Madison.
Tocqueville’s analysis of America’s federal machinery had its weak points. Despite an apparently sound understanding of the complexities involved in the state-federal connection,48 he would occasionally exhibit a lingering confusion in his published work, sometimes speaking of the Union as forming a single people, and at other times describing it as merely “an assemblage of confederated republics.”49
Perhaps this persistent contradiction arose from Clay’s overly enthusiastic acceptance of his earlier statement about twenty-four “little, almost entirely separate nations.” But a more likely reason was Tocqueville’s tendency to focus so intensely from time to time on one facet of a problem that he momentarily excluded other perspectives from his mind. The American federation was, after all, as the Democracy would repeatedly assert, both a single nation (or an incomplete nation) and a collection of small political societies (or a federation or a confederation).
Also, in at least one instance, the Democracy would push the arguments from the Federalist and other sources beyond what the authors had originally intended.
One of Madison’s attempts to separate the legitimate interests of the states from those of the Union impressed Tocqueville so much that he would quote it in his text: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”50
Possibly he also stumbled upon the concurring opinions of Joseph Story and Thomas Jefferson. “The powers of the general government,” the Justice announced in his Commentaries, “will be, and indeed must be, principally employed upon external objects.... In its internal operations it can touch but few objects.... The powers of the states, on the other hand, extend to all objects, which, in the ordinary course of affairs, concern the lives, the liberties, and property of the people.”51
And in a letter appearing in Conseil’s volumes, Jefferson advanced a similar thesis: “To the State governments are reserved all legislation and administration, in affairs which concern their own citizens only, and to the federal government is given whatever concerns foreigners, or the citizens of other States; these functions alone being made federal. The one is the domestic, the other the foreign branch of the same government.”52
In apparent agreement with these voices, Tocqueville would twice conclude in his work of 1835: “The federal government is something of an exception, whereas the government of each state is the normal authority (règle commune),”53 and would also declare, in what he probably assumed to be obvious harmony with unimpeachable authorities, “The federal government is hardly concerned with anything except foreign affairs; it is the state governments which really control American society.”54
Such conclusions, if not erroneous, were at least controversial and later drew criticism from some readers of the Democracy.55
By repeatedly mining the treasure contained in the Federalist, Tocqueville gathered so many arguments and ideas that he could not always separate “Publius’s” thinking from his own. In 1835 he would warmly praise and often acknowledge obligations to the American essays, but the uncovering of additional undeclared debts56 makes his reliance seem even more substantial than perhaps he himself realized.
What then of Justice Story’s severe accusation of 1840 that the Democracy contained information and theories largely pirated from the Federalist and his Commentaries? Certainly, more than once, Tocqueville would obscure links between his ideas and their origins by failing to include in the Democracy specific citations which appeared in drafts or the working manuscript. But repeated references to Story and the Federalist and several quotations from each would make it clear that there was no intention in his published volumes to hide his heavy use of the two works. Also, when Tocqueville and Beaumont visited the United States, the viewpoints espoused by “Publius” and the Justice were part of the knowledge common to practically every educated American whom the two visitors met, so the travelers could hardly avoid absorbing them.57
Moreover, Story evidently overlooked one significant departure made by the author of the Democracy from the Federalist or “orthodox” school of thought. The apparently acceptable opinion that the states held the balance of power within the Union led Tocqueville to conclude, more heretically, that the duration of the American republic depended upon the will of the states. On this matter he adopted an idea repugnant to the Justice and to most of the other authors whom he read.
His working manuscript observed that the Union, like other confederations, rested “on a contract obligatory for all parties.”58 But contracts broken by one party could be terminated by the other, and in 1835 Tocqueville would write that the Union rested on the freely given consent of the states. The states, he would boldly declare, were parties to the contract, and, if one or more decided to withdraw, the federal government could not constitutionally prevent them from doing so. “The confederation was formed by the free will of the states; these, by uniting, did not lose their nationality or become fused in one single nation. If today one of those same states wished to withdraw its name from the contract, it would be hard to prove that it could not do so. In resisting it the federal government would have no obvious source of support either in strength or in right.”59
Neither Story nor the Federalist granted the states the right to secede, so where might Tocqueville have encountered such doctrine?
In 1825, William Rawle, a lesser-known commentator, had published a volume of analysis entitled A View of the Constitution of the United States,60 and although Tocqueville’s papers give no indication that he read Rawle’s exposition while drafting the Democracy, he was, nevertheless, exposed to Rawle’s somewhat eccentric explanation of the nature of the American Union. Conseil’s Mélanges contained a short treatise and annotations on the Constitution of the United States “taken, for the most part, from the work published on this Constitution by William Rawle, L.L.D.,”61 and in a footnote, Rawle, through Conseil, perhaps sowed the seeds of confusion: “It is necessary to note that the United States, in their present form, constitute a society composed not only of a people divided into other secondary societies, but also, in certain respects, of these secondary societies themselves. The State, as well as the people who inhabit it, is a member and integral part of the Union; however, it does not take part as a confederated power.”62
Presumably Rawle entered Tocqueville’s thinking even more substantially through the person of Francis J. Lippitt. Sixty years after his service to Tocqueville, Lippitt would recollect “certain particulars not wholly mal-à-propos.” “In my senior year in college we had Rawle on the Constitution for six months.” The young American possibly analyzed and summarized Rawle into many of Tocqueville’s materials, and if he and his employer ever discussed the states and the Union, Rawle almost certainly appeared repeatedly as a third participant in their conversations.63
The treatise which Conseil used and which Lippitt studied at Brown reproduced, for the most part, the standard account of the Constitution and of the nature of the Union as told by Story, Kent, Hamilton, or Madison, but it differed substantially on one vital issue. While professing the usual affection for the Union, Rawle insisted that “the states ... may wholly withdraw from the Union.”64
A minor scandal erupted among the followers of the Chancellor and the Justice when they discovered this strange opinion at the end of Rawle’s book,65 but evidently Tocqueville—at least at times—approved of the unusual doctrine; echoes of it would occasionally sound in the 1835 Democracy.
Tocqueville’s view of the relationship between the American federal and state governments, as presented in the Democracy, was a profound and largely accurate one, particularly when compared to the explanations of most other French travelers who committed their impressions to paper.66 Even the traces of confusion and possible error in Tocqueville’s work pale into insignificance with the realization that in 1835 the Americans themselves remained unsure of what their Union was or how it was supposed to function.67
His heavy reliance on the dominant nationalist interpretation as expounded by “Publius,” Kent, Story, and others exposed Tocqueville to some of the best of American constitutional thought and was, therefore, primarily advantageous to his understanding. But in 1835, his affaire américaine would reflect the Federalist probably more than he realized and certainly more than the Democracy would disclose.
In his use of those famous essays, Tocqueville also apparently failed to detect any noteworthy differences between Hamilton’s and Madison’s accounts of the Constitution or of the nature of the American Union. In Hamilton he found reinforcement for beliefs about the threat of the states, the necessity for a strong central government, and the desirability of a powerful and independent federal judiciary. From Madison he learned that the Union, though clearly not an historically familiar confederation, was also not quite a unified nation, but rather a new and unique political form. It was also Madison who helped to convince him that the central authority was, after all, a government of severely restricted jurisdiction and decidedly the exception rather than the rule. Tocqueville evidently did not notice that these two embodiments of “Publius” frequently offered views with significantly different points of emphasis.
Finally, even in 1835, he would entertain two unreconciled ideas about the states’ supposed right to secede. On the one hand, faithful to his eminent teachers, he would summarize, then denounce as essentially destructive, the theories of John C. Calhoun and the nullificateurs. Yet elsewhere he would grant the states the full constitutional right to withdraw from the Union whenever they might choose to do so. Either unaware of his self-contradiction, or unable finally to decide, he would strangely present both of these conflicting opinions in the pages of his grand ouvrage.
[1. ]In this and the following chapter, I have attempted to indicate some specific origins for certain of Tocqueville’s ideas about American federalism. In some cases, his travel notebooks, drafts, or working manuscript of the Democracy offer precise references not contained in the published text of 1835, thus making new links between sources and ideas clear and incontrovertible. At other times, I have quoted materials not specifically cited by Tocqueville, but contained, nevertheless, in works which he consulted. In the latter cases, any connection between sources and ideas is, admittedly, only probable. Too often those searching for the origins of ideas forget that an author’s citation of one work does not exclude the possibility of his reliance on others. I have tried to avoid this error and, by drawing attention to certain of Tocqueville’s sources, have not intended to imply that he did not use others as well.
[2. ]Tocqueville to Ernest de Chabrol, New York, 20 June 1831, Toc. letters, Yale, BIa2. Also see another letter to Chabrol, New York, 9 June 1831, ibid.
[3. ]Other Americans often described to Tocqueville and Beaumont the advantages and dangers of federalism, but rarely detailed the mechanics of the interrelation of state and nation. For the conversation with Mr. Clay, see 2 October 1831, Non-Alphabetic Notebooks 2 and 3, Mayer, Journey, pp. 65–66. For Mr. Walker, consult second conversation, which Tocqueville labeled important, 3 December 1831, Non-Alphabetic Notebooks 2 and 3, Mayer, Journey, p. 96. According to Elizabeth Kelley Bauer, Walker had been a student of Justice Joseph Story and actively disseminated Story’s gospel to the West; see Bauer’s Commentaries on the Constitution, 1790–1860, pp. 162–67; hereafter cited as Bauer, Commentaries.
[4. ]See Tocqueville’s compliment to the authors of the Federalist; Democracy (Mayer), p. 115 note.
[5. ]See for example, quotations in the travel diaries, Notebook E, Mayer, Journey, pp. 247, 249, 249–50; also in the various stages of the Democracy, Drafts, Yale, CVh, Paquet 3, cahier 1, pp. 48, 49; and pertinent chapters in the Original Working Ms., Yale, CVIa, tome 1. (“Publius” is the pseudonym of Alexander Hamilton, James Madison, and John Jay, each of whom wrote parts of the Federalist.)
[6. ]Samples may be found in the pertinent chapters of Tocqueville’s Original Working Ms., Yale, CVIa, tome 1; these translations might also have been made by Francis Lippitt.
[7. ]For information about these editions, consult Paul Leicester Ford, A List of Editions of the Federalist.
[8. ]“Union: Central Government” and “Sovereignty of the People,” 27–29 December 1831, Notebook E, Mayer, Journey, pp. 245–50. Some of Tocqueville’s comments (pp. 246–47) strongly hint that he also read numbers 16 and 17, even though he did not mention them. There is also an undated reference to Number 83 in his diaries; see Notebook F, ibid., p. 289 note.
[9. ]For two excellent discussions of the authorship of the Federalist and the differences in emphasis between the papers by Hamilton and those by Madison, see Alpheus Thomas Mason, “The Federalist—A Split Personality,” pp. 625–43; and Douglass Adair, “The Authorship of the Disputed Federalist Papers,” pp. 97–122, 235–64.
[10. ]Federalist, Papers 15–22. For convenience, I have drawn all of my citations to the Federalist from the widely available Mentor edition, which contains an introduction, elaborate table of contents, and index of ideas by Clinton Rossiter; hereafter cited as Federalist (Mentor).
[11. ]See “Union: Central Government,” 28 December 1831, Notebook E, Mayer, Journey, p. 245. This idea was presented most forcefully in Number 15, which Tocqueville cited in his travel notebooks. In 1835, he would declare: “This Constitution ... rests on an entirely new theory, a theory that should be hailed as one of the great discoveries of political science in our age”; Democracy (Mayer), p. 156.
[12. ]Number 23, Federalist (Mentor), p. 155. This passage was quoted somewhat inaccurately by Tocqueville in his travel diaries: “Union: Central Government,” 28 December 1831, Notebook E, Mayer, Journey, p. 247.
[13. ]“Union: Central Government,” 29 December 1831, Notebook E, Mayer, Journey, p. 248. Tocqueville’s emphasis. These remarks are particularly reminiscent of conversations and lessons in Boston. See especially “General Comments,” Boston, 18 September 1831, Non-Alphabetic Notebook 1, Mayer, Journey, p. 48; and conversations with Mr. Quincy, 20 September 1831, and Mr. Sparks, [29 September 1831], Non-Alph. Notebooks 2 and 3, ibid., pp. 50–52, 58–59.
[14. ]“Union: Central Government,” 28 December 1831, Notebook E, Mayer, Journey, p. 247.
[15. ]Democracy (Mayer), p. 61; also p. 162. In the basic organization of the 1835 Democracy, we have already encountered an earlier echo of these ideas which resulted from the many lessons about America’s local and state government that the visitors had learned during the first months of their American journey. It was also a message carried in Jared Sparks’s essay “On the Government of Towns in Massachusetts,” which the historian wrote for Tocqueville and Beaumont. See as well Sparks’s remarks about the “spirit of locality,” 29 September 1831, Non-Alphabetic Notebooks 2 and 3, Mayer, Journey, pp. 58–59. Also consult Pierson’s discussion of Sparks’s influence, Toc. and Bt., pp. 397–416.
[16. ]See Tocqueville’s remarks of 18 September 1831, Non-Alphabetic Notebook 1, and his undated “Reflection,” Non-Alphabetic Notebooks 2 and 3, Mayer, Journey, pp. 48 and 56–57, respectively. Also consult George Pierson’s account of the Boston experience, Toc. and Bt., pp. 355–425.
[17. ]Conservations with Mr. Poinsett, 12–17 January 1832, Non-Alphabetic Notebooks 2 and 3, Mayer, Journey, p. 118.
[18. ]Democracy (Mayer), pp. 164–65.
[19. ]Pierson, Toc. and Bt., p. 136.
[20. ]“Sources. Nature des livres où je puis puiser—Livres de droit,” Reading Lists, Yale, CIIa. Tocqueville devoted a separate travel diary to his notes and observations on Kent’s Commentaries: “Notes on Kent,” undated, Mayer, Journey, pp. 228–33. Also see his comments on Kent’s work under various headings in Notebook E, 27 and 29 December 1831, ibid., pp. 245, 249–57; and in Notebook F, 31 December 1831, ibid., pp. 297–302.
[21. ]Conversation with Gallatin, 10 June 1831, and with Spencer, Canandaigua, 17–18 July 1831, Non-Alphabetic Notebook 1, Mayer, Journey, pp. 21, 28–29. Also consult conversations with Mr. Gray, Boston, 21 September 1831; with Jared Sparks, 29 September 1831; and with Mr. Chase, 2 December 1831; Non-Alph. Notebooks 2 and 3, ibid., pp. 53, 59, 93, respectively. Cf. Tocqueville’s own comments of 30 September 1831, Pocket Notebook 3, ibid., p. 149.
[22. ]16 October 1831, Notebook F, Mayer, Journey, p. 313.
[23. ]“Reflection,” undated, Notes on Kent, Mayer, Journey, pp. 229–30. Compare this to “Judicial Power in the United States and Its Effect on Political Society,” Democracy (Mayer), pp. 102–3.
[24. ]Hereafter cited as Conseil, Mélanges.
[25. ]Hereafter cited as Story, Commentaries. The complete edition (3 vols.) also appeared in 1833. Pierson, Toc. and Bt., p. 729, mistakenly cited the larger edition as the one which Tocqueville used, but the Frenchman’s own page references are drawn from the abridgement. Tocqueville also used Story’s The Public and General Statutes Passed by the Congress of the United States of America from 1789–1827; hereafter cited as Story, Laws. (Two additional volumes of this work appeared in 1837 and 1847.)
[26. ]In 1848, in the twelfth edition of the Democracy, Tocqueville would add translations of the Federal and New York state constitutions drawn from Conseil’s work and would also at that time include the praises quoted above; see Démocratie, 12th ed., 1:307.
[27. ]Number 15, Federalist (Mentor), p. 111.
[28. ]Number 17, ibid., p. 120.
[29. ]Ibid., p. 119; cf. Number 45, pp. 295–300.
[30. ]Democracy (Mayer), pp. 112–70.
[31. ]The chapter on the federal constitution, Original Working Ms., Yale, CVIa, tome 1.
[32. ]See Democracy (Mayer), p. 166.
[33. ]Number 17, Federalist (Mentor), pp. 119–20.
[34. ]Number 46, ibid., pp. 294–95; cf. Number 45, pp. 290–93.
[35. ]See Democracy (Mayer), p. 167; also pp. 365–67.
[36. ]The chapter on the federal constitution, Original Working Ms., Yale, CVIa, tome 1.
[37. ]Number 39, Federalist (Mentor), p. 246.
[38. ]Alternative written above “confederation”: “federal government.” Neither is effaced.
[39. ]The chapter on the federal constitution, Original Working Ms., Yale, CVIa, tome 1. Contrast this and other statements about the nature of the Union to a criticism that Tocqueville, in his description of the structure of the American government, failed to distinguish between “la forme fédérale” and “la forme confédérale,” Paul Bastid, “Tocqueville et la doctrine constitutionnelle,” Toc.: centenaire, p. 46.
[40. ]Democracy (Mayer), p. 157. Here is an additional instance of Tocqueville’s inclination to give names to new phenomena.
[41. ]On the subjects of the importance of the federal courts and of the necessity for a strong and independent judiciary, the Commentaries of the two jurists are strikingly similar. The drafts of the Democracy indicate that, between 1832 and 1835, Tocqueville relied more heavily on Story than on Kent.
[42. ]Drafts, Yale, CVh, Paquet 3, cahier 1, pp. 39–40.
[43. ]Number 22, Federalist (Mentor), pp. 150–51.
[44. ]Drafts, Yale, CVh, Paquet 3, cahier 1, pp. 39–40. Tocqueville’s own emphasis.
[45. ]Number 39, Federalist (Mentor), pp. 245–46. Compare Tocqueville’s paragraph from the 1835 text, Democracy (Mayer), p. 115.
[46. ]“The Federal Courts,” Democracy (Mayer), p. 140.
[47. ]“Means of Determining the Competence of the Federal Courts,” ibid., pp. 142–43. Nowhere in his sections on the American judiciary would Tocqueville cite either Number 22 or Number 39 of the Federalist.
[48. ]See various descriptions of those complexities in the 1835 volumes. Democracy (Mayer), pp. 61, 114–15, 155–58, 164–65.
[49. ]Compare passages containing the phrases “one single people” or “one and the same people” (Democracy [Mayer], pp. 140, 145) with others that mention “twenty-four little sovereign nations” or “an assemblage of confederated republics” or “the association of several peoples” or “a society of nations,” ibid., pp. 61, 117, 364, 376.
[50. ]Number 45, Federalist (Mentor), pp. 292–93; this passage would be included in the 1835 Democracy as a footnote, Democracy (Mayer), p. 115 note.
[51. ]Story, Commentaries, p. 192.
[52. ]Jefferson to Major John Cartwright, Monticello, 5 June 1824, Conseil, Mélanges, 2:404–12. For the English version, see A. A. Lipscomb and A. E. Bergh, eds., The Writings of Thomas Jefferson, 16:47; hereafter cited as Jefferson, Memorial Ed.
[53. ]Democracy (Mayer), p. 61; the second instance occurs on page 115.
[54. ]Ibid., p. 246 note.
[55. ]In a challenging essay entitled “Tocqueville on American Federalism,” Robert C. Hartnett, S.J., described the author of the Democracy as hopelessly confused about the nature of the Union. The piece is found in William J. Schlaerth, S.J., ed., A Symposium on Alexis de Tocqueville’s Democracy in America, pp. 22–30.
[56. ]The obligations demonstrated above concern the relationship between the states and the Union, but Tocqueville’s drafts and working manuscript reveal several additional borrowings in other areas treated in the Democracy, such as the threat of legislative tyranny, the necessity of an independent judiciary, the powers of the President, and the dangers of frequent elections.
[57. ]See Pierson’s discussion, Toc. and Bt., pp. 730–35.
[58. ]The chapter on the federal constitution, Original Working Ms., Yale, CVIa, tome 1. Nowhere in his published chapter on the federal Constitution did Tocqueville use the term contract to describe the Union; consult Democracy (Mayer), pp. 112–70. The word contract appears elsewhere in the 1835 text, however; see ibid., p. 369.
[59. ]Democracy (Mayer), p. 369 (my emphasis); cf. pp. 367–68, 369–70, 383–84. Elsewhere in the Democracy, however, by implication at least, Tocqueville would contradict this position. Compare the statement quoted immediately above to his repudiation of John C. Calhoun’s nullification doctrine, ibid., pp. 390–91.
[60. ]Hereafter cited as Rawle, View. According to Bauer, Commentaries, pp. 27, 63, Rawle’s work was the first textbook on the Constitution designed for use on the college and law school levels and was highly popular.
[61. ]Conseil, Mélanges, 1:127–28 note.
[62. ]Ibid., 1:129–30 note; cf. Rawle, View, pp. 25–26.
[63. ]For a complete account of Lippitt’s memories, see Daniel C. Gilman, “Alexis de Tocqueville and His Book on America—Sixty Years After.” Also consult Pierson’s description in his Toc. and Bt., pp. 732–34 and notes.
[64. ]Rawle, View, p. 290; cf. pp. 288–90, 295–301. Pierson indicated that Tocqueville had been exposed to Rawle through Lippitt, but stated incorrectly that Rawle was merely a further translation of Story, Kent, and the Federalist, Pierson, Toc. and Bt., pp. 733–34 and notes.
[65. ]For a description of Rawle’s work and its reception, see Bauer, Commentaries, pp. 58–65.
[66. ]Rémond, Etats-Unis, 1:382; Rémond’s work contains a particularly perceptive discussion of Tocqueville’s originality, ibid., 1:377–90.
[67. ]For elaboration on this idea, consult Paul C. Nagel, One Nation Indivisible: The Union in American Thought, 1776–1861.