Front Page Titles (by Subject) CHAPTER 14: The Tyranny of the Majority - The Making of Tocqueville's Democracy in America
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CHAPTER 14: The Tyranny of the Majority - 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 Tyranny of the Majority
As his ongoing analysis of centralization and despotism demonstrates, Tocqueville focused, at times, largely on the saving of political liberty in democratic times. Later his emphasis shifted somewhat, and he concentrated instead on intellectual liberty. These two freedoms are not unrelated; both are connected to what was always central to Tocqueville’s understanding of liberty: the dignity and responsibility of the individual. But freedom for the development and expression of new and/or uncommon ideas was increasingly important to Tocqueville. He sought more and more, in the face of democracy’s advance, to preserve the individual who dared to think differently. He wanted neither sheep for the bureaucratic shepherd nor identical pieces of a democratic mass.
Between 1831 and 1840 Tocqueville considered at least four major democratic despotisms. One, legislative omnipotence, had a prominent place in 1835, but declined rapidly in importance after that. Another, tyranny d’un seul, also had a key part in 1835, enjoyed a second flurry of interest in 1836 and 1837 in the guise of the military dictator, and then went, as well, into eclipse. A third, administrative despotism, made a brief, relatively unheralded appearance in 1835; this modest beginning was followed by a steady increase in importance until, by 1840, Tocqueville’s image of the oppressive bureaucratic state dominated the last section of the Democracy. The fourth variety played a major role in 1835 and then, in more subtle form, entered almost as significantly into the 1840 volumes. This final vision remains perhaps the best known of Tocqueville’s concepts of democratic despotism: the tyranny of the majority.
Among the first entries in Tocqueville’s American diaries was a conversation with Albert Gallatin. While discussing the legal profession Gallatin made several points about the political roles of American judges and the influence of public opinion. “The judges ... are held in very high esteem. Being entirely dependent on public opinion, they need to make continual efforts to keep this esteem.... I look on the judges ... as the regulators of the irregular movements of our democracy, and as those who maintain the equilibrium of the system.”1
After talking of reasons for bicameralism, John Canfield Spencer of Canandaigua, New York, also focused on the connection between public opinion and American judges, but his comments were somewhat more critical. “They are a little too fond of flattering the people, and ... they will not fight courageously against a view that they believe is shared by the masses. We have seen some examples of that in cases with a political side to them.”2
In September, Jared Sparks put the whole matter into a broader context. “The political dogma of the country is that the majority is always right. By and large we are very well satisfied to have adopted it, but one can not deny that experience often gives the lie to the principle. (He quoted several examples of this.) Sometimes the majority has wished to oppress the minority.”3 This was the first mention of an idea that would become one of the fundamental themes of the Democracy.
The next day, in response to these remarks, Tocqueville fixed a new intellectual guidepost in one of his pocket notebooks. One of “two great social principles which seem to me to rule American society and to which one must always return to find the reason for all the laws and habits which govern it” was that “the majority may be mistaken on some points, but finally it is always right and there is no moral power above it.... A completely democratic government,” he continued, recalling Gallatin, Spencer, Sparks, and others, “is so dangerous an instrument that, even in America, men have been obliged to take a host of precautions against the errors and passions of Democracy. The establishment of two chambers, the governor’s veto, and above all the establishment of the judges.”4
Soon, as though to test Sparks’s observation, Tocqueville began to record specific instances of the dangers of democracy and of the majority’s occasional desire “to oppress the minority.”
“The people is always right,” that is the dogma of the republic just as, “the king can do no wrong,” is the religion of monarchic states. It is a great question to decide whether the one is more false than the other: but what is very sure is that neither the one nor the other is true.
Mr. Washington Smith told me yesterday that almost all the crimes in America were due to the abuse of alcoholic drinks. “But,” said I, “why do you not put a duty on brandy?”
“Our legislators have often thought about it,” he answered. “But are afraid of a revolt, and besides the members who voted a law like that would be very sure of not being re-elected, the drinkers being in a majority and temperance unpopular.”
Yesterday also another Mr. Smith, a very respected Quaker, told me: “The Negroes have the right to vote at elections, but they cannot go to the Poll without being ill treated.”
“And why,” said I, “is the law not carried out on their behalf?”
He answered me: “The laws have no force with us when public opinion does not support them. Now the people is imbued with very strong prejudices against the Negroes, and the magistrates feel that they have not the strength to enforce laws which are favorable to the latter.”5
The Pennsylvanians’ examples demonstrated that the majority could oppress not only by pressuring judges or other officials or by legislating unjust measures, but also by refusing either to enact or to enforce laws which countered popular prejudices. Particularly when racial minorities were involved, sovereignty of the people or majority rule sometimes led directly to great injustice.
In 1835 Tocqueville would combine this information with two other examples and conclude: “The people, surrounded by flatterers, find it hard to master themselves. Whenever anyone tries to persuade them to accept a privation or a discomfort, even for an aim that their reason approves, they always begin by refusing. The Americans rightly boast of their obedience to the laws. But one must add that in America legislation is made by the people and for the people. Therefore law in the United States patently favors those who everywhere else have the greatest interest in violating it. It is therefore fair to suppose that an irksome law of which the majority did not see the immediate utility either would not be passed or would not be obeyed.”6
On 1 November 1831, Tocqueville spoke with Mr. Stewart, “a distinguished Baltimore doctor,” and heard that public opinion had even more subtle influences. The physician described the immense power of religion in America and the pressures on men like himself to be known as “believers.”
“Does not such a state of affairs,” Tocqueville interjected, “make for many hypocrites?”
“Yes, but especially it keeps them from speaking. Public opinion does with us what the Inquisition could never do.... I have known a lot of young people who ... thought they had discovered that the Christian religion was not true; carried away by the ardor of youth they have started loudly proclaiming this opinion.... What then! Some have been forced to leave the country or to vegetate miserably there. Others, feeling the struggle unequal, have been constrained to an external religious conformity, or have at least kept quiet. The number who have thus been suppressed by public opinion is very considerable. Anti-Christian books are never published here, or at least that is very rare.”7
Tocqueville realized that what Mr. Stewart described was a different sort of democratic despotism: an almost irresistible pressure on individuals to conform to the ideas of the many. By 1835 this awesome power of public opinion would become the most disturbing and original feature of his portrait of the tyranny of the majority.
Still another episode related to Tocqueville in Baltimore demonstrated how the majority sometimes enforced conformity by violent actions which were, in turn, sanctioned or even encouraged by other popular institutions, such as the militia and jury.
“Mr. Cruse, a very talented man and editor of one of the principal newspapers in Baltimore, told me today: With us there is no power external to the people; whatever it wants, one must submit. The militia itself is the people, and is of no avail when it shares or excuses the passions of the majority. We saw a terrible instance of this twenty years ago. It was the time of the war against England, a war which was very popular in the South. A journalist ventured violently to attack war feeling. The people assembled, broke his presses, and attacked the houses where he and his friends (belonging to the first families of the town) had shut themselves up. An attempt was made to call out the militia; they refused to march against the rioters, and did not answer the call. The municipal authorities could only save the journalist and his friends by sending them to prison. The people did not feel itself satisfied. That night it assembled and marched against the prison. Again one tried to assemble the militia, but without being able to do so. The prison was taken by storm; one of the prisoners was killed on the spot and the rest left for dead; one wanted to make prosecutions, but the juries acquitted the offenders.”8
This story was a particularly troubling example of the power of the people. How apt some earlier jottings on the jury now seemed. “The jury is the most powerful and the most direct application of the sovereignty of the people. Because the jury is nothing but the people made judge of what is allowed and of what it is forbidden to do against society.”9
Leading citizens of Ohio repeatedly told Tocqueville in December about alarming democratic excesses in their state. There democracy seemed at flood level, and still rising. “At the moment we are making the experiment of a democracy without limits.”10 The result was mediocre leadership, impulsive legislation, poor administration, and, most alarming, growing judicial dependency.11
When Tocqueville asked if it were not dangerous to entrust to the legislature the powers to appoint and to limit the tenure of judges, Salmon P. Chase agreed that it was. “The judges in America are there to hold the balance between all parties, and their function is particularly to oppose the impetuosity and mistakes of democracy. [How closely he echoed Gallatin.] Sprung from it, depending on it for the future, they cannot have that independence.”12
A first reading of James Kent’s Commentaries at the end of the month underscored these concerns. The Chancellor particularly stressed the desirability of judicial independence. “It is ... salutary in protecting the constitution and laws from the encroachments and tyranny of factions.”13
The legislators, he implied, also needed a certain insulation from the immediate desires of the people. It especially disturbed Tocqueville to learn from Kent that “in several constitutions in the United States, the right of the electors to force their representatives to vote in a certain way has been recognized. The principle is contested by the best minds. If it was generally adopted, it would deal a deadly blow at the representative system, that great discovery of modern times, which seems destined to exercise so great an influence over the fate of humanity. It would then be the people itself that acted, the deputies becoming its mere passive agents.”14 So, in some states, the mandate was a significant additional means to enforce the will of the majority.
Not long afterward, another American reviewed some basic flaws in the government of Alabama and “all the new States in the South-West.” “The erroneous opinion,” he summarized, “is spreading daily more and more among us ... that the people can do everything and is capable of ruling almost directly.”15
Tocqueville’s journey in the New World had enabled him to compile a formidable list of ways in which the many in America wielded their extraordinary and apparently growing power. The majority exercised more and more direct control over legislatures, which in turn increasingly dominated the executive and judicial branches. It spoke through juries and acted (or failed to act) through the militia. Sometimes it even coerced minorities by violence or threats of violence.16 Perhaps most noteworthy was the overwhelming authority which public opinion in America had not only over judges, legislators, and other public officials, but also over minorities and private nonconforming individuals. It was this subtle but irresistible moral pressure which the majority could bring to bear, rather than any political, legal, or even physical coercion, which most troubled the visiting Frenchmen.
By the time Tocqueville finally gathered his materials in Paris and began to write, he had apparently already decided that an analysis of this worrisome trend toward popular omnipotence would be a significant part of his book. In his compilation of sources he used as one organizing theme: “Sovereignty of the people. Tyranny of the majority. Democracy, irresistible march of Democracy.—... Tyrannical power over speech. Power without counterweight.—Generating principles of American constitutions.”17 Here apparently was Tocqueville’s first written use of the phrase which would become so familiar, tyranny of the majority.
As the task of composition proceeded, Tocqueville also continued to develop a catalogue of possible checks on the power of the majority in the United States; “On What Tends to Moderate the Omnipotence of the Majority in America”: “In America there are a thousand natural causes which, so to speak, by themselves work together to moderate the omnipotence of the majority. The absence of ranks,18 the extreme harmony of interests which reigns among all in the United States, the material prosperity of the country, the diffusion of enlightenment (lumières), and the mildness of moeurs, which is the result of the progress of civilization, greatly favor the mildness of the government. I have already indicated the different causes; the time has come to examine what barriers the institutions themselves have taken care to raise against the power from which they come.”19
During the journey, Tocqueville had received a strongly negative impression of the authority of American state and national executives. In his drafts he now declared: “In America the executive power is nothing and can do nothing. All of the force of the government is confided to the society itself organized under the most democratic form that has ever existed. In America all danger comes from the people; it is never born outside of them.”20 After further reading and reflection he finally concluded that, as a result of this general executive debility, “The veto of the governor is not a barrier to the democracy; the governor proceeds entirely from it.”21 On this point, at least, Tocqueville had changed his mind, and Jared Sparks had been judged wrong.
The significance which Sparks, the Ohioans, Kent, Story, the writers of the Federalist, and others placed on the maintenance of judicial independence and the high opinion that they all had of the American judiciary made it unlikely that Tocqueville would ever similarly deemphasize the “establishment of the judges” as a check on the majority’s power.22 The drafts of the 1835 Democracy continued to declare that “the judicial power in the United States is a barrier raised by design against the omnipotence of the majority. We can consider it as the only powerful or real obstacle that American laws have placed before the steps of the people.”23
In a fragment, Tocqueville presented a thumbnail sketch of the independent judge who, armed with the power to declare laws unconstitutional, worked to maintain the balance of the system and to preserve liberty.
Influence Exercised by the Judicial Power on the Power of the Majority.
When political society in the United States is examined, at first glance one notices only a single principle which seems to bind all the parts strongly together: the people appear as the only power. Nothing seems able to oppose their will nor to thwart their plans.
But there is a man who presents himself as, in some sense, above the people; he does not hold his mandate from them; he has nothing to fear, so to speak, from their anger, nor anything to hope from their favor. However, he is clothed with more power than any of the representatives of the people; for by a single blow, he can strike with sterility the work which issued from the common will.24
But would judges in America remain truly independent? From Alexander Hamilton, Tocqueville learned that the judicial branch was by its very nature feeble. “Importance of the judicial power as barrier to Democracy; its weakness. See Federalist, p. 332.”25
In Paper Number 78, Hamilton argued: “The judiciary is beyond comparison the weakest of the three departments of power.... from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; ... as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”26
Yet the Frenchman knew from conversations and other readings that judicial independence was at that very time under attack in America. Justice Story’s book, for example, warned him once again of the growing trend to submit judges to popular election.27 Pushed on the one hand to argue how necessary and potent a barrier the judiciary was to popular passions, and on the other to recognize the inherent weakness of the courts and the growing tendency toward judicial dependence, Tocqueville was caught between contrary lessons. He finally resolved the dilemma by concluding in a draft: “So the high prerogatives granted to American magistrates never place them out of the reach of the majority, and their independence is not such that a single dominating power always exists at the heart of the society to which all must definitively submit. The judicial power retards the people, it can not stop them.”28
In the New World Tocqueville had also heard repeatedly that the states were the primary arena for popular excesses. Works by Kent and Story, read or reread in Paris, now repeated this message. He also discovered in the Federalist Papers that Madison, on more than one occasion, severely criticized the states for serious flaws in their governments. According to Madison, the proposed Constitution would be a superior frame of government precisely because it guarded against many of the weaknesses inherent in most of the state constitutions: submissive executives, dependent judges, and unchecked legislatures.29
When Tocqueville came to consider the threat of tyranny of the majority, he argued in a draft: “So in the democratic republics [of America] the majority forms a genuine power.... Yet this power of the majority can be moderated in its exercise by the efforts of the law-maker. The authors of the federal Constitution worked in this sense. They sought to hobble the march of the majority. In the individual states, on the contrary, men strove to render it more rapid and more irresistible.”30
He wrote even more strongly elsewhere: “The Union can not present a tyrannical majority. Each state would be able to do so.... Two causes: 1. The division of sovereignty [federalism]; 2. The splitting up of administration [administrative decentralization].” So like other democratic despotisms, tyranny of the majority might be checked, in part, by decentralization. “Since the national majority is thus thwarted in its designs by the majority of the inhabitants of a city or locality, the tyranny which can be very great at several points cannot become general.... And since these two majorities may find themselves opposed in their designs, liberty always finds some sanctuary and the despotism which can be exerted irresistibly at several points of the territory, cannot however become general.”31
The words of the 1835 Democracy would not be so absolute, but Tocqueville would remark that “however far the national majority may be carried away by its passions in its ardor for its projects, it cannot make all the citizens everywhere bow to its will in the same way and at the same time.”32
He would also mention in a footnote: “There is no need to remind the reader that here, and throughout this chapter [“The Omnipotence of the Majority in the United States and Its Effects”], I am speaking not of the federal government but of the governments of each state, where a despotic majority is in control.”33
On the basis of observations and readings Tocqueville was therefore at times inclined to accept the efficacy of American federalism and administrative decentralization as barriers to the tyranny of the majority on the national level.34 Apparently the people could not abuse the power of the central government as easily as they sometimes did that of the states. (Decentralization even tended to blunt the possibility of majoritarian despotism on the state level.) So at times, for Tocqueville, the tyranny of the majority—at least in its more concrete political and legal manifestations—was largely a danger within the states.
But by 1835 Tocqueville would make an important distinction which significantly qualified this positive evaluation of decentralization and the federal Constitution as barriers to popular oppression. There were dangers beyond those which threatened in the states. In America the majority actually wielded two different powers: legal and political control (“une immense puissance de fait”) and authority over opinion and thought (“une puissance d’opinion presque aussi grande”).35
The first was exercised largely through the branches of government (particularly through the legislature, the special instrument of majority), the jury system, the force publique (militia and police), and other institutions. It was this power which state constitutions had artificially enhanced and which could so easily degenerate into tyranny.
The second and more original portion of Tocqueville’s vision of majoritarian despotism resulted from the more subtle influences suggested by the narrative of Mr. Stewart. In 1835 he would observe:
It is when one comes to look into the use made of thought in America that one most clearly sees how far the power of the majority goes beyond all powers known to us in Europe.
Thought is an invisible power and one almost impossible to lay hands on, which makes sport of all tyrannies. In our day the most absolute sovereigns in Europe cannot prevent certain thoughts hostile to their power from silently circulating in their states and even in their own courts. It is not like that in America; while the majority is in doubt, one talks; but when it has irrevocably pronounced, everyone is silent, and friends and enemies alike seem to make for its bandwagon....
I know no country in which, generally speaking, there is less independence of mind and true freedom of discussion than in America.36 ...
In America the majority has enclosed thought within a formidable fence. A writer is free inside that area, but woe to the man who goes beyond it. Not that he stands in fear of an auto-da-fé, but he must face all kinds of unpleasantness and everyday persecution....
Formerly tyranny used the clumsy weapons of chains and hangmen; nowadays even despotism, though it seemed to have nothing more to learn, has been perfected by civilization.
Princes made violence a physical thing, but our contemporary democratic republics have turned it into something as intellectual as the human will it is intended to constrain....
Absolute monarchies brought despotism into dishonor; we must beware lest democratic republics rehabilitate it, and while they make it more oppressive toward some, they do not rid it of its detestable and degrading character in the eyes of the greatest number.37
In his drafts, Tocqueville attempted to explain his conclusions. “That tyranny in America acts directly on the soul and does not torment the body results from two causes: 1. that it [tyranny] is exercised by a majority and not by a man. A man, never being able to obtain the voluntary support of the mass, can not inflict on his enemy this moral punishment which arises from isolation and public contempt. He is obliged to act directly in order to get at him. 2. that, in effect, moeurs have become milder and people have perfected and intellectualized despotism.”38
In some unpublished paragraphs from the working manuscript of his chapter on the press in America, Tocqueville also pointedly declared that, on certain issues, the power of the majority over thought had effectively destroyed freedom of the press and imposed a unique and highly effective type of censorship.
“When liberty of the press, as often happens, combines with the sovereignty of the people, one sometimes sees the majority pronounce clearly in favor of one opinion; then the opposing opinion no longer finds a means of being heard.... Certain thoughts seem to disappear all of a sudden from the memory of men. Liberty of the press then exists in name, but in fact censorship reigns and a censorship a thousand times more powerful than that exercised by any power. Note: I do not know a country where on certain questions liberty of the press exists less than in America. There are few despotic countries where the censor does not lean more on the form than on the content of thought. But in America, there are subjects that cannot be touched upon in any way whatsoever.”39
The majority’s almost unlimited power over ideas and opinions thus opened the door to a frightening tyranny of a new and deceptively mild sort. Despite Tocqueville’s repeated assurances that majoritarian despotism was primarily something to fear in the states, the implications of his discussion of this other power of the majority made intellectual tyranny a national and present danger. “There is no freedom of the mind (liberté d’esprit) in America.”40
Nearly a half-century later, in The American Commonwealth (1888), James Bryce criticized Tocqueville’s “tyranny of the majority” on the grounds that the Frenchman’s theory exaggerated the dangers of active oppression of a minority by the majority and slighted the real threat: a pressure so subtle that it would paralyze the will of most dissenters and, almost without their being aware, convert them to the majority’s opinion. The very desire to be different would be undermined and what Bryce called the “fatalism of the multitude” would result.41
But Bryce, it seems, missed the richness of Tocqueville’s concept. Tocqueville did indeed worry about specific acts of oppression which a majority might commit against minorities or dissenting individuals. He also recognized, however, the quiet pressure, the benign but inescapable influence, of the moral authority of the many. In 1835 and increasingly afterward, this passive and deceptively mild side of the tyranny of the majority, this weakening of the individual’s will to stand apart from the crowd, this extremely subtle restriction on the freedom of thought and opinion were what disturbed Tocqueville most.
Tocqueville believed that in addition to barriers erected by circumstance, national character, or governmental structure, there were also limitations of an ideal or moral nature on majoritarian power. Most of the time, the republicans of the New World seemed to recognize this.
In a draft he wrote: “What one calls the Republic in the United States is the tranquil reign of the majority. The majority, after it has had the time to get to know itself and to verify its existence, is the source of all powers. But the majority itself is not all-powerful; above it in the moral realm is humanity and reason.... The majority in its omnipotence recognizes these two barriers and if it has sometimes overturned them, [it is because,] like the men who compose it, the majority has yielded to passions and felt itself carried by them beyond its rights.”42
The 1835 Democracy would declare that the highest limitation on the rule of the majority was justice. “There is one law which has been made, or at least adopted, not by the majority of this or that people, but by the majority of all men. That law is justice.
“Justice therefore forms the boundary to each people’s right.
“A nation is like a jury entrusted to represent universal society and to apply the justice which is its law. Should the jury representing society have greater power than that very society whose laws it applies?
“Consequently, when I refuse to obey an unjust law, I by no means deny the majority’s right to give orders; I only appeal from the sovereignty of the people to the sovereignty of the human race.”43
Even if these ideals did not effectively check the pretensions of the many, they at least provided a rationale for questioning the presumed moral authority of any majority—especially an oppressive one. Humanity, reason, and justice were thus for Tocqueville significant moral safeguards for any minority or individual.
Tocqueville now summarized the major obstacles to the tyranny of the majority in America. A brief outline from his working manuscript mentioned:
Omnipotence of the majority.
Its tyrannical effects....
Its counterweight in the laws—Judicial power. Lack of administrative centralization.
In the moeurs.
And in the local circumstances.
But his 1835 text would finally narrow this list and stress instead the three major institutional barriers to the despotism of the many: administrative decentralization, the legal corps (with its esprit légiste), and the jury. Most other items on his list would be transferred to the more general discussion of what helped to maintain the democratic republic in America.45
In 1835 Tocqueville would begin his textual discussion of the power of the majority with the axiom that democratic government meant rule by the majority. “The very essence of democratic government consists in the absolute sovereignty of the majority (l’empire de la majorité).”46 In America, however, attachment to the idea of the sovereignty of the people had led to the artificial heightening of majority rule in the states; only the framers of the federal Constitution had possessed the wisdom to erect barriers to the majority’s will.
According to the first part of the Democracy the key to the power of the majority was its moral authority (“l’empire moral de la majorité”),47 an authority especially strengthened in the United States by the wide acceptance of the doctrine of equality and the prevailing harmony of interests. Americans assumed that the combined intellects and judgments of the many were superior to those of the few and that the interests of the greater number were naturally to be preferred to the interests of the minority. In addition, the New World republic was not divided into great irreconcilable interest groups. So the privileges and rights of the present majority were recognized without serious quarrel.
Tocqueville would describe several familiar but important results that followed from this overwhelming power. The legislature, as the voice of the majority, became the dominant branch of government and, at the same time, closely mirrored the changing desires of the many. Projects were launched with zeal and energy when the people were stirred, but languished when popular interest waned, as often quickly happened. There was, in short, a chronic instability in the laws and administration wherever the majority reigned so unhampered. Furthermore, since American officials were armed with the moral authority of the majority which had placed them in office, they often enjoyed shockingly arbitrary powers within their own restricted spheres of responsibility.
The omnipotence of the majority, Tocqueville would observe, even more profoundly influenced the American national character. The many had constantly to be flattered and reinforced in its assumption of superiority. The demagogue, the man of little principle, the crowd-praiser, was the more politically viable figure in America; consequently, a low standard of leadership prevailed. Since the majority resisted criticism of its attitudes and actions from either its own leaders or the members of minorities, a currying of favor pervaded the society. Few were willing to speak out; a smug conformity reigned.
So unlimited was the power of the majority in the United States that tyranny threatened; the 1835 text would argue that the strength of the many became “not only predominant but irresistible.”48 “Omnipotence in itself seems a bad and dangerous thing.... So when I see the right and capacity to do all given to any authority whatsoever, whether it be called people or king, democracy or aristocracy, and whether the scene of action is a monarchy or a republic, I say: the germ of tyranny is there, and I will go look for other laws under which to live.”49
The American states, Tocqueville would insist, provided almost no real guarantees against the abuse by the many of its authority and the oppression of an individual or a minority. “When a man or a party suffers an injustice in the United States, to whom can he turn? To public opinion? That is what forms the majority. To the legislative body? It represents the majority and obeys it blindly. To the executive power? It is appointed by the majority and serves as its passive instrument. To the police (la force publique)? They are nothing but the majority under arms. A jury? The jury is the majority vested with the right to pronounce judgment; even the judges in certain states are elected by the majority. So, however iniquitous or unreasonable the measure which hurts you, you must submit.”50
He would carefully add, however, that the majority in America did not yet habitually abuse its strength. “I am not asserting that at the present time in America there are frequent acts of tyranny. I do say that one can find no guarantee against it.”51 The omnipotence of the majority did not necessarily mean the tyranny of the majority. The common and despotic misuse of power was still primarily a potentiality and something to fear in America’s future. Tocqueville left unresolved the contradiction between this conclusion and his insistence that intellectual liberty did not exist in America.
Between 1835 and 1840, as work on the final volumes of his book went forward, Tocqueville worried increasingly about the fragility of intellectual freedom in democratic times. His attention began to focus more and more on what he had called in the first half of his book the puissance d’opinion or the power which the majority in America had over thought, rather than on the majority’s legal and political control (puissance de fait). The last part of the Democracy would therefore reflect a growing sensitivity to the overwhelming intellectual authority of the crowd, and other facets of his theory of the omnipotence and possible tyranny of the majority would largely recede from view.
By 1840 the dangerous power of the majority over ideas and opinions would also be closely linked with the larger relationship between the individual and the mass in democratic societies. What he had previously almost always described as the omnipotence (l’omnipotence) or authority of the majority (l’empire de la majorité) or of the greatest number (le plus grand nombre), or the power of public opinion (opinion publique), he would now frequently call the influence of the crowd, the mass, or the public (la foule, la masse, le public).52 Among the many significant consequences of the isolation and weakness of the individual which Tocqueville would emphasize in 1840, for example, would be the tendency of the solitary person to defer intellectually to the views of his fellows. “As equality spreads and men individually become less strong, they ever increasingly let themselves glide with the stream of the crowd and find it hard to maintain alone an opinion abandoned by the rest.”53
In the chapter entitled “Concerning the Principal Source of Beliefs among Democratic Peoples,” he would identify the influence of the many as a major cause “which must in the long run hold the independence of individual thought within fixed, indeed sometimes narrow, bounds.”54
The nearer men are to a common level of uniformity, the less are they inclined to believe blindly in any man or any class. But they are readier to trust the mass, and public opinion becomes more and more mistress of the world.
Not only is public opinion the only guide left to aid private judgment, but its power is infinitely greater in democracies than elsewhere....
The citizen of a democracy comparing himself with the others feels proud of his equality with each. But when he compares himself with all his fellows and measures himself against this vast entity, he is overwhelmed by a sense of his insignificance and weakness....
So in democracies public opinion has a strange power of which aristocratic nations can form no conception. It uses no persuasion to forward its beliefs, but by some mighty pressure of the mind of all upon the intelligence of each it imposes its ideas and makes them penetrate men’s very souls.55
Tocqueville would then proceed to revive the distinction which he had originally made in 1835. He would distinguish between the omnipotence politique de la majorité (augmented by various laws) and the empire ... sur l’intelligence and then argue that, although in the United States the former enhanced the strength and danger of the latter, the intellectual authority of the majority did not necessarily need the support of excessively democratic institutions. Basic democratic social conditions, rather than particular political forms, were the most fundamental causes of the dominance which the mass exercised over thought and opinion.56
Tocqueville would conclude his chapter with a description of the possible tyranny of the majority which would almost exclusively stress the intellectual, rather than any legal or political, consequences of such despotism. “Thus it might happen that, having broken down all the bonds which classes or men formerly imposed on it, the human mind (esprit) might bind itself in tight fetters to the general will of the greatest number.
“If democratic peoples substituted the absolute power of a majority for all the various powers that used excessively to impede or hold back the upsurge of individual thought, the evil itself would only have changed its form. Men would by no means have found the way to live in independence; they would only have succeeded in the difficult task of giving slavery a new face. There is matter for deep reflection there. I cannot say this too often for all those who see freedom of the mind as something sacred and who hate not only despots but also despotism. For myself, if I feel the hand of power heavy on my brow, I am little concerned to know who it is that oppresses me; I am no better inclined to pass my head under the yoke because a million men hold it for me.”57
These and other ideas also appeared in an earlier draft of the second chapter of the 1840 Democracy.58 Previously unpublished, the manuscript, entitled “Concerning the Particular Causes Which Might Be Harmful in America to the Free Development and to the Generalization of Thought,” was a substantially different version that more emphatically stressed the ominous power of the majority over thought. It also revealed more of Tocqueville’s personal reactions to and remedies for this democratic threat to intellectual freedom.
He began in the margin with an outline of the particular causes which worked against theoretical and innovative thinking in America.
Religion (I have already discussed it).
Examine the equality of conditions. Maintained by the material condition of the country.
Despotism of the majority.
Exclusively commercial and industrial character of the country. People direct their efforts only toward certain things.
No memory of another social and political state.
Origin of the middle classes.
I demonstrated in the preceding chapter how dogmatic and traditional opinions maintained in religious matters restricted the innovating mind of the Americans on several sides, so to speak. There is another cause, less powerful, but more general, which threatens to stop and which already slows the free development of thought in the United States. This cause, which I have already indicated in another part of this work, is nothing other than the ... 59 power exercised by the majority in America.
A religion is also a power; but its movements are set in advance and move in a known sphere; and many persons believe that in this sphere its effects are beneficial, and that a dogmatic religion goes further toward obtaining the desired results than one which is rational.
The majority is a ... 60 power which, in a way, goes at random and can successively extend to all things.
Religion is the law; the omnipotence of the majority is arbitrary.
Religion inclines the human mind to stop by itself and to offer obedience, the free choice of a moral and independent being.
The majority compels the human mind to stop, despite what it may want, and by constantly forcing it to obey, ends by taking away even the desire to be free, to act for itself.
In the United States, the pernicious influence exercised on thought by the omnipotence of the majority is noticeable above all in political life. It is principally in governmental matters, on political questions that the majority’s opinion has been formed up to now; but American laws are such that, whatever direction it decides to take, the majority will make its omnipotence equally felt.
So its limits are in its own will and not in the constitution of the country. One cannot conceal the fact that the Americans have let themselves be carried in the direction common to democratic peoples. In democracies, whatever one thinks, the majority and the power that represents it are always provided with a rough strength. And even if the laws in the smallest degree favor rather than combat this tendency, it is nearly impossible to say where the limits of tyranny will be.
It could happen that in democracies people would escape from the domination of class, family, or national attitudes in order to submit to those of the majority. One cannot hide the fact that this is the natural tendency in democracies. It must be combated, not only by those who do not want political tyranny, but also by those who desire the general freedom of the human mind.61 ...
Among aristocratic peoples the interests of class forbid men to see anything other than what exists under their eyes and prevent them from noticing new roads which could lead to truth. It is probable that, once submitted to the omnipotence of the majority, men would not even seek to discover these new paths or would not follow them after they were found.62
The prejudices of all types which are born and maintained in the heart of an aristocracy limit the human mind in certain ways and prevent it from developing along these lines; but it does not attack intellectual freedom in principle and in an absolute manner. In democracies constituted in the way that I mentioned above, the majority in a way oversees the human mind; it compresses its whole scope in a permanent and general manner; and to bend men to its will, it ends by taking away from each of them the habit and the taste of thinking for himself....
... I expect people to serve the cause of democracy, but I want them to do so as moral and independent beings who, while pledging their support, retain the use of their liberty; that people see in the majority the most tolerable of all powers, I understand; but I would like them to be its counselors and not its courtiers....
I say that among democratic peoples, I clearly notice two contrary tendencies. One carries men toward new and general thoughts. The other could reduce them, so to speak, to not thinking at all.63
So if I found myself suddenly charged with giving laws to a democratic people, I would seek clearly to distinguish these two tendencies and to make it so that they did not cancel one another out, or at least that the second did not become preponderant. In this design, I would try not to destroy the authority (l’empire) of the majority, but to moderate its use. And I would do my utmost to assure that after it had overthrown all rival powers, it would limit itself.
This is why—to furnish not a complete picture, but an example—if I lived among a democratic people, I would prefer to see them adopt a monarchical constitution rather than a republican form. I would like it better if they instituted two legislative assemblies rather than one, an immovable judiciary rather than elected judges, provincial powers rather than a centralized administration. For all of these institutions can be combined with democracy without altering its essence.64
As the social state became more democratic, I would put more of a price on obtaining all or some of these things. And while proceeding thus, I would have in view not only saving political liberty, as I have said in another part of this work, but also protecting the general progress of the human mind. If you should say that such maxims are not popular, I will try to console myself with the hope that they are true.65
This draft chapter explained how natural groupings in aristocratic society tended to restrain freedom of thought and how démocratie both liberated men from these older limitations and carried the potential for new and more fearful restrictions. It also briefly contrasted the different ways in which religion and a democratic majority encircled intellectual exploration and development; and it implied that Tocqueville could much more easily concede some benefit to religious limitations on free inquiry.
What was newer about this earlier deleted variation, however, was his statement that, so far, American conformity of opinion was greatest in basic governmental and political attitudes. This explicit observation occurred solely in this draft. Also noteworthy was the program of remedies that concluded the chapter. Once again, as he did in other drafts and would in both 1835 and 1840, Tocqueville stressed decentralization and an independent judiciary. But here he also declared his preference for a democratic monarchy rather than a democratic republic. This idea too would never appear in the text of his Democracy.
Finally and most important, this variant clearly demonstrated that Tocqueville feared not only the silencing of individual and minority ideas and the resulting conformity of opinion; he also dreaded the further possibility that in democratic times new ideas might be denied a hearing and that the advance of civilization might therefore come to a halt. By 1840, these intellectual dangers had apparently become, for Tocqueville, the primary meaning of tyranny of the majority and a major focus of personal anxiety.66
[1. ]Conversation with Mr. Gallatin, New York, 10 June 1831, Non-Alphabetic Notebook 1, Mayer, Journey, p. 21.
[2. ]Conversation with Mr. Spencer, Canandaigua, 17–18 July 1831, ibid., pp. 28–29.
[3. ]My emphasis. Conversation with Mr. Sparks, 29 September 1831, Non-Alph. Notebooks 2 and 3, ibid., p. 59. Sparks also mentioned two preventive devices: the governor’s veto and the power of judges to declare laws unconstitutional.
[4. ]My emphasis, except for even in America; 30 September 1831, Pocket Notebook 3, ibid., p. 149.
[5. ]25 October 1831, ibid., p. 156. See the 1835 work where the first of these conversations is recounted: Democracy (Mayer), p. 225. Also compare a conversation with Mr. Roberts Vaux in which the majority’s occasional desire for “disorder and injustice” was discussed: 27 October 1831, Non-Alph. Notebooks 2 and 3, Mayer, Journey, pp. 68–69. It should be noted further that Tocqueville’s brief comments about the “dogma of the republic” are yet another echo of Royer-Collard. Also compare the ideas of Benjamin Constant.
[6. ]From the section entitled “American Democracy’s Power of Self-Control,” Democracy (Mayer), p. 224. The other examples cited would be American bankruptcy laws and the not-uncommon resort, in certain areas, to murder and dueling as ways to settle disputes. For a discussion with a somewhat different emphasis, consult the section entitled “Respect for Law in the United States,” ibid., pp. 240–41.
[7. ]My emphasis; conversation with Mr. Stewart, Baltimore, 1 November 1831, Non-Alph. Notebooks 2 and 3, Mayer, Journey, p. 80. Cf. in the 1835 volumes the section “The Power Exercised by the Majority in America over Thought,” Democracy (Mayer), pp. 254–56, especially p. 256.
[8. ]Conversation with Mr. Cruse, Baltimore, 4 November 1831, Pocket Notebook 3, Mayer, Journey, pp. 159–60.
[9. ]11 October 1831, ibid., p. 153. Also compare some later remarks where Tocqueville would note that under certain circumstances, such as when a powerful aristocracy makes itself master of the juries, “the jury is the most terrible weapon of which tyranny could make use” (12 January 1832, Pocket Notebooks 4 and 5, ibid., pp. 174–75).
[10. ]Second conversation with Mr. Walker: important, 3 December 1831, Non-Alph. Notebooks 2 and 3, ibid., p. 95.
[11. ]Consult especially the conversations with Storer, Chase, and Walker, 2 and 3 December 1831, ibid., pp. 89–95.
[12. ]Conversation with Mr. Chase, Cincinnati, 2 December 1831, ibid., pp. 92–93.
[13. ]Notes on Kent, ibid., pp. 228–29.
[14. ]On the Mississippi, 27 December 1831, Notebook E, Mayer, Journey, p. 255; also see other remarks on mandates, 12 January 1832, Pocket Notebooks 4 and 5, ibid., p. 173. The broader analysis of this issue which Tocqueville would later present in the 1835 Democracy would have a strong impact on the thinking of John Stuart Mill, who would subsequently heavily emphasize the distinction between direct and representative democracy; consult especially Mill’s reviews of the 1835 and 1840 Democracy; also Iris W. Mueller, John Stuart Mill and French Thought.
[15. ]Conversation with a lawyer from Montgomery, Alabama, 6 January 1832, Non-Alph. Notebooks 2 and 3, Mayer, Journey, p. 108.
[16. ]On 8 September 1834, the Journal des débats carried lengthy news about the riots which had occurred in Philadelphia, New York, and Charlestown during the preceding summer. If Tocqueville read or heard of these ugly events, his fear of the use of violence against minorities would certainly have been heightened; cf. Rémond, Etats-Unis, 2:699–700 and notes.
[17. ]Tocqueville’s emphasis; “Sources manuscrites,” Yale, CIIc.
[18. ]In the draft, “the absence of ranks” is crossed out.
[19. ]Drafts, Yale, CVh, Paquet 3, cahier 4, pp. 15–17. In the 1835 volumes Tocqueville would discuss various institutional barriers, including bicameralism, indirect elections, parties and other associations, the press, and especially the jury system, the legal and judicial establishments, and decentralization and federalism. See the pertinent chapters, but particularly “What Tempers the Tyranny of the Majority in the United States,” Democracy (Mayer), pp. 262–76.
[20. ]Drafts, Yale, CVh, Paquet 3, cahier 5, p. 21.
[21. ]Drafts, Yale, CVb, Paquet 13, p. 15. Cf. in the 1835 volumes, Democracy (Mayer), “The Executive Power of the State,” p. 86; also pp. 154, 246–47.
[22. ]The phrase “establishment of the judges” means various things to Tocqueville, but it stood especially for the generally “conservative” influence of lawyers and judges in the society, the power of judges to declare laws unconstitutional, and the institution of the jury. See especially the sections “The Temper of the American Legal Profession and How It Serves to Counterbalance Democracy” and “The Jury in the United States Considered as a Political Institution,” Democracy (Mayer), pp. 263–76.
[23. ]Drafts, Yale, CVh, Paquet 3, cahier 4, pp. 15–17. Cf. ibid., cahier 5, p. 40: “Judicial power—The most original part, and the most difficult to understand, of all the American Constitution. Elsewhere there have been confederations, a representative system, a democracy; but no where a judicial power organized like that of the Union.”
[24. ]Ibid., cahier 1, pp. 14–15.
[25. ]Ibid., CVe, Paquet 17, p. 64.
[26. ]Federalist (Mentor), pp. 464–72; the quote is from pp. 465–66.
[27. ]Drafts, Yale, CVh, Paquet 3, cahier 3, pp. 9–10. Cf. in the 1835 work, Democracy (Mayer), p. 269.
[28. ]Drafts, Yale, CVh, Paquet 3, cahier 5, p. 17. Compare especially Democracy (Mayer), pp. 269–70.
[29. ]Kent and Story particularly stressed the tendencies in the states toward mandates and the popular election of judges.
[30. ]Drafts, Yale, CVh, Paquet 3, cahier 5, p. 14. Compare Democracy (Mayer), p. 246 and footnote 1; also pp. 154–55.
[31. ]My emphasis; Drafts, Yale, CVh, Paquet 3, cahier 3, pp. 53–54. See in the 1835 volumes, Democracy (Mayer), pp. 262–63, 271, note 7.
[32. ]Democracy (Mayer), p. 262.
[33. ]Ibid., p. 260, note 7.
[34. ]Consult particularly the section “The Superiority of the Federal Constitution over That of the States,” ibid., pp. 151–55. Tocqueville also recognized the possibility that, through the Senate, a minority might effectively frustrate the will of the majority; ibid., p. 119.
[35. ]Ibid., p. 248.
[36. ]Ibid., pp. 254–55; also see the entire section entitled “The Power Exercised by the Majority in America over Thought,” pp. 254–56. A remark similar to this last sentence is found in the drafts: “All things considered, the Americans still make up the people of the world where there is the greatest number of men of the same opinion”; Drafts, Yale, CVh, Paquet 3, cahier 4, pp. 35–36.
[37. ]Democracy (Mayer), pp. 255–56.
[38. ]Drafts, Yale, CVh, Paquet 3, cahier 3, p. 59.
[39. ]Original Working Ms., Yale, CVIa, tome 2, additional paragraphs at the conclusion of the chapter on liberty of the press. Compare “Freedom of the Press in the United States,” Democracy (Mayer), pp. 180–88.
[40. ]My own translation. Cf. Démocratie, O.C. (Mayer), 1:1, p. 267.
[41. ]See James Bryce, The American Commonwealth, 2:335–53, the chapters entitled “The Tyranny of the Majority” and “The Fatalism of the Multitude.”
[42. ]Drafts, Yale, CVh, Paquet 3, cahier 2, pp. 68–69; compare Democracy (Mayer), pp. 395–96. Cf. Royer-Collard’s idea of la souveraineté de la raison.
[43. ]Democracy (Mayer), pp. 250–51.
[44. ]Original Working Ms., Yale, CVIa, tome 2; the sketch may be found next to the opening page of the second volume of the 1835 Democracy.
[45. ]Consult the chapters entitled “What Tempers the Tyranny of the Majority in the United States” and “The Main Causes Tending to Maintain a Democratic Republic in the United States,” Democracy (Mayer), pp. 262–76 and pp. 277–315, respectively.
[46. ]Democracy (Bradley), 1:264. For Tocqueville’s full discussion, see his chapters “The Omnipotence of the Majority in the United States and Its Effects” and “What Tempers the Tyranny of the Majority in the United States,” Democracy (Mayer), pp. 246–61 and pp. 262–76, respectively.
[47. ]Democracy (Mayer), p. 247.
[48. ]Ibid., p. 247; also see pp. 250–53.
[49. ]Ibid., p. 252.
[51. ]Ibid., p. 253.
[52. ]For some examples, see the 1840 volumes, Democracy (Mayer), pp. 516, 669, 704; or Démocratie, O.C. (Mayer), 1:2, pp. 115–16, 298, 337.
[53. ]Democracy (Mayer), p. 520.
[54. ]Ibid., pp. 433–36; the quote is from p. 433.
[55. ]Ibid., p. 435; cf. pp. 643–44.
[56. ]Cf. ibid., pp. 436, 643–44.
[57. ]Ibid., p. 436; cf. pp. 515–17.
[58. ]See the 1840 chapter “Concerning the Principal Source of Beliefs among Democratic Peoples,” ibid., pp. 433–36.
[59. ]Copyist indicated an illegible word.
[60. ]Copyist indicated another illegible word.
[61. ]This paragraph is written in the margin.
[62. ]This paragraph is written in the margin.
[63. ]Compare Democracy (Mayer), p. 436.
[64. ]In 1848, as a member of the committee charged with drafting a new constitution, Tocqueville would indeed have his opportunity as lawmaker. For discussion of his views and contributions at that time, consult Gargan, Critical Years, pp. 97–113, and Ponteil, Institutions, pp. 269–76.
[65. ]Drafts, Yale, CVj, Paquet 2, cahier 1, pp. 33–42. I have quoted excerpts.
[66. ]Consult chapter 16 below: “Would Démocratie Usher in a New Dark Ages?”