Democracy in America

by Alexis de Tocqueville

it does not go by itself to prosecute criminals, search for injustice, and examine facts.

Americans have preserved these three distinctive characteristics in the judicial power.

The American judge can only pronounce when there is litigation. He is never occupied except with a particular case; and in order to act he must always wait until he has been seised [of a matter].

The American judge therefore resembles perfectly the magistrates of other nations. Nevertheless, he is vested ...

The cause of it is in this sole fact: Americans have recognized in judges the right to found their rulings on the Constitution rather than on the laws. In other words, they have permitted them not to apply laws that might appear to them unconstitutional.

An American constitution is not supposed to be immutable as in France; it cannot be modified by the ordinary powers of society as in England.

It forms a separate work that, representing the will of all the people,

but that can be changed by the will of the people following forms that have been established and in c...

If, in France, the courts could disobey the laws on the ground that they find them unconstitutional, the constituting power would really be in their hands, since they alone would have the right to interpret a constitution whose terms no one could change.

It would be much more unreasonable yet to give English judges the right to resist the will of the legislative body, since Parliament, which makes the law, also makes the constitution,

and since, consequently, one cannot in any case call a law unconstitutional

Americans have therefore entrusted an immense political power to their courts; but in obliging them to attack the laws only by judicial means, they have much diminished the dangers of this power.

Confined within its limits, the power granted to American courts to pronounce on the unconstitutionality of laws still forms one of the most powerful barriers that has ever been raised against the tyranny of political assemblies.

OTHER POWERS GRANTED TO AMERICAN JUDGES

all citizens have the right to accuse public officials before ordinary judges and all judges have the right to sentence public officials,

Americans in so acting had increased the respect that is owed to those who govern, as the latter take much more care to escape criticism.

The Americans and the English think that one must treat arbitrary power and tyranny like theft: make prosecution easy and make the penalty milder.

Chapter 7 ON POLITICAL JUDGMENT IN THE UNITED STATES

By political judgment I mean the decree that a political body, temporarily vested with the right to judge, pronounces.

In England and France, the House of Lords forms the high criminal court of the nation.

In the United States as in Europe, one of the two branches of the legislature is vested with the right to accuse, and the other with the right to judge. The [House of] Representatives denounces the guilty one, the Senate punishes him. But the Senate can be seised only by the representatives, and the representatives can accuse only public officials before it.

here is the greatest difference

in Europe, political tribunals can apply all the provisions of the penal code; in America, when they have taken away from a guilty person the public character with which he had been vested and have declared him unworthy of occupying any political office in the future, their right is exhausted and the task of ordinary tribunals begins.

In Europe, political judgment is therefore a judicial act rather than an administrative measure.

in the United States,

political judgment there is indeed an administrative measure rather...

The principal goal of political judgment in the United States is therefore to withdraw power from someone who makes a bad use of it and to prevent this same citizen from being vested with it in the future. It is, as one sees, an administrative action to which they have given the solemnity of a [judicial] decree.

one then discovers why American constitutions submit all civil officials to the jurisdiction of the Senate and exempt the military from it,

In the civil order, the Americans have so to speak no dismissible officials: some are irremovable, others have their rights by a mandate that cannot be abrogated. In order to take power away from them, it is therefore necessary to judge them

the military depend on the head of state, who is himself...

In France and England political judgment is considered as an extraordinary arm that society ought not to make use of except to save itself in moments of great peril.

Political judgment in the United States makes only an indirect attack on the principle of the division of powers; it does not threaten the existence of citizens; it does not hang over all heads, as in Europe, since it strikes only those who, by accepting public offices, have submitted in advance to its rigors.

Europeans, in establishing political tribunals, had for their principal object to punish the guilty; Americans, to take power away from them.

in Europe, political tribunals are vested with terrible rights that they sometimes do not know how to use; and it happens that they do not punish for fear of punishing too much.

in America, they do not recoil before a penalty that does not make humanity tremble:

Chapter 8 ON THE FEDERAL CONSTITUTION

HISTORY OF THE FEDERAL CONSTITUTION

initial difficulty

apportioning sovereignty in such a way that the different states that formed the Union might continue to govern themselves in all that concerned only their internal prosperity, without having the entire nation, represented by the Union, cease to make up a body and to provide for all its general needs.

The prerogatives of the federal government were therefore carefully defined, and it was declared that everything that was not comprised in that definition returned to the prerogatives of the state governments.

Thus the state governments remained the common rule; the federal government was the exception.

The Union, therefore, was granted the exclusive right to make peace and war; to conclude commercial treaties; to raise armies, to equip fleets.

To the Union was given over the right to regulate all that relates to the value of money; it was charged with the postal service; it was given the right to open the great [lines of] communication that would unite the various parts of the territory.

in those rare cases, defined in advance, the federal government is permitted to intervene in the internal affairs of the states.

Finally, as it was necessary that the federal government be able to fulfill the obligations that were imposed on it, it was given the unlimited right to levy taxes.

its national authority was in some regards more centralized than it was in the same period in several of the absolute monarchies of Europe.

The Union has only a single court to interpret the law, like the single legislature that makes it; the tax voted by the representatives of the nation obliges all citizens.

Congress alone has the right to regulate the commercial relations of the states among themselves.

LEGISLATIVE POWERS

Some wanted to make the Union a league of independent states,