Democracy in America

by Alexis de Tocqueville

Federal courts, it says, shall judge all cases that arise under the laws of the United States.

the jurisdiction of the federal courts extends not only to all cases that have their source in the laws of the Union, but also to all those that arise from the laws that particular states have made contrary to the Constitution.

This arrangement appears to me to attack the sovereignty of the states more profoundly than anything else.

MANNER OF PROCEEDING OF FEDERAL COURTS

The irresistible force of justice in countries where sovereignty is not partitioned comes from the fact that the courts in these countries represent the nation as a whole

To the idea of right is added the idea of the force that supports right.

in countries where sovereignt...

justice most often finds before it not an isolated individual, but a f...

In federal states, justice is therefore naturally weaker and the justici...

the Constitution of the United States made it (and there was its masterpiece) so that the federal courts act in the name of those laws, and never have any business except with individuals.

But when the Union, instead of attacking, is reduced to defending itself, the difficulty increases.

The Constitution recognizes the power of making laws in the states. These laws can violate the rights of the Union.

the Union could have cited the state before a federal court

But in that manner federal justice would have found itself directly opposed to a state, which it wanted as much as possible to avoid.

The Americans thought it was almost impossible that a new law not prejudice some particular interest in its execution. It is on that particular interest that the authors of the federal constitution rely to attack the legislative measure about which th...

in reality, federal justice finds itself doing battle with the sovereignty of the state; but it attacks it only indirectly and over an application of detail. It thus strikes the law in its consequences, not in its principle; it does not destroy it, it enervates it.

a last hypothetical situation

A state could, for example, seek justice against another state.

Here the danger indicated at the beginning of this chapter still exists, but this time one cannot avoid it;

ELEVATED RANK HELD BY THE SUPREME COURT AMONG THE GREAT POWERS OF THE STATE

The Supreme Court is placed higher than any known tribunal both by the nature of its rights and by the species of those under its jurisdiction.

none of the European nations has yet thought that every judicial question, whatever its origin might be, could be left to judges of the common law.

the Union regulates only the relations of the government with the governed and of the nation with foreigners; the relations of citizens among themselves are almost all ruled by the sovereignty of the states.

In the nations of Europe, tribunals have only particular persons under their jurisdiction; but one can say that the Supreme Court of the United States makes sovereigns appear before its bar.

In the hands of seven federal judges rest ceaselessly the peace, the prosperity, the very existence of the Union.

The president can fail without the state’s suffering because the president has only a limited duty. Congress can err without the Union’s perishing because above Congress resides the electoral body that can change its mind by changing its members. But if the Supreme Court ever came to be composed of imprudent or corrupt men, the confederation would have to fear anarchy or civil war.

the original cause of the danger is not in the constitution of the tribunal, but in the very nature of federal governments.

nowhere is it more necessary to constitute the judicial power strongly than in confederated peoples, because nowhere are the individual existences that can struggle against the social body greater and in a better state...

HOW THE FEDERAL CONSTITUTION IS SUPERIOR TO THE CONSTITUTIONS OF THE STATES

the federal constitution is superior to all the state constitutions.

due to several causes.

current constitution of the Union was formed only subsequent to those of most of the states; one could therefore pro...

The great cause of the superiority of the federal constitution is in the very character of the legislators.

they saw that a definitive revolution had been accomplished and that from then on the dangers that threatened the people could only arise from abuses of freedom.

they dared to speak of restricting it because they were sure that they did not wish to destroy it.

They lengthened the time of the electoral mandate to allow to the deputy a greater use of his free will.

The federal constitution

it varied the conditions of eligibility and the mode of election, so that if one of the two branches of the legislature did not represent different interests from the other, as in certain nations, it at least represented a superior wisdom.

In the states, the executive power was put into the hands of a magistrate apparently placed beside the legislature, but who in reality was only a blind agent and passive instrument of its will.

generally named only for a year.

legislature can reduce him to impotence by charging with the execution of its laws special committ...

The federal constitution concentrated all the rights of the executive power, like all its responsibility, in one man alone.

after having carefully traced the sphere of executive power, it sought to give it as much as possible a strong and free position within that sphere.

in all the states the legislature continued to be master in fixing the emoluments of judges, which necessarily subjects them to its immediate influence.

The federal constitution took care, on the contrary, to separate the judicial power from all the others. In addition, it rendered judges independent by declaring their salary fixed and their offices irrevocable.

the affairs of the Union are infinitely better conducted than the particular affairs of any state.

to summarize this chapter.

Two principal dangers threaten democracies:

Complete enslavement of the legislative power to the will of ...

Concentration in the legislative power of all the other po...