American Institutions and Their Influence by Alexis de Tocqueville et al

A >> Alexis de Tocqueville et al >> American Institutions and Their Influence

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 | 40 | 41 | 42 | 43 | 44 | 45 | 46 | 47 | 48 | 49

PREROGATIVE OF THE FEDERAL GOVERNMENT.

Power of declaring War, making Peace, and levying general Taxes vested
in the Federal Government.--What Part of the internal Policy of the
Country it may direct.--The Government of the Union in some respects
more central than the King's Government in the old French monarchy.

The external relations of a people may be compared to those of private
individuals, and they cannot be advantageously maintained without the
agency of the single head of a government. The exclusive right of making
peace and war, of concluding treaties of commerce, of raising armies,
and equipping fleets, was therefore granted to the Union.[127] The
necessity of a national government was less imperiously felt in the
conduct of the internal affairs of society; but there are certain
general interests which can only be attended to with advantage by a
general authority. The Union was invested with the power of controlling
the monetary system, of directing the post-office, and of opening the
great roads which were to establish communication between the different
parts of the country.[128] The independence of the government of each
state was formally recognized in its sphere; nevertheless the federal
government was authorized to interfere in the internal affairs of the
states[129] in a few predetermined cases, in which an indiscreet abuse
of their independence might compromise the security of the Union at
large. Thus, while the power of modifying and changing their legislation
at pleasure was preserved in all the republics, they were forbidden to
enact _ex post facto_ laws, or to create a class of nobles in their
community.[130] Lastly, as it was necessary that the federal government
should be able to fulfil its engagements, it was endowed with an
unlimited power of levying taxes.[131]

In examining the balance of power as established by the federal
constitution; in remarking on the one hand the portion of sovereignty
which has been reserved to the several states, and on the other the
share of power which the Union has assumed, it is evident that the
federal legislators entertained the clearest and most accurate notions
on the nature of the centralisation of government. The United States
form not only a republic, but a confederation; nevertheless the
authority of the nation is more central than it was in several of the
monarchies of Europe when the American constitution was formed. Take,
for instance, the two following examples:--

Thirteen supreme courts of justice existed in France, which, generally
speaking, had the right of interpreting the law without appeal; and
those provinces, styled _pays d'etats_, were authorized to refuse their
assent to an impost which had been levied by the sovereign who
represented the nation.

In the Union there is but one tribunal to interpret, as there is one
legislature to make the laws; and an impost voted by the representatives
of the nation is binding upon all the citizens.

In these two essential points, therefore, the Union exercises more
central authority than the French monarchy possessed, although the Union
is only an assemblage of confederate republics.

In Spain certain provinces had the right of establishing a system of
customhouse duties peculiar to themselves, although that privilege
belongs, by its very nature, to the national sovereignty. In America the
congress alone has the right of regulating the commercial relations of
the states. The government of the confederation is therefore more
centralized in this respect than the kingdom of Spain. It is true that
the power of the crown in France or in Spain was always able to obtain
by force whatever the constitution of the country denied, and that the
ultimate result was consequently the same; and I am here discussing the
theory of the constitution.

* * * * *

FEDERAL POWERS.

After having settled the limits within which the federal government was
to act, the next point was to determine the powers which it was to
exert.

* * * * *

LEGISLATIVE POWERS.

Division of the legislative Body into two Branches.--Difference in the
Manner of forming the two Houses.--The Principle of the Independence of
the States predominates in the Formation of the Senate.--The Principle
of the Sovereignty of the Nation in the Composition of the House of
Representatives.--Singular Effects of the Fact that a Constitution can
only be Logical in the early Stages of a Nation.

The plan which had been laid down beforehand for the constitution of the
several states was followed, in many points, in the organization of the
powers of the Union. The federal legislature of the Union was composed
of a senate and a house of Representatives. A spirit of conciliation
prescribed the observance of distinct principles in the formation of
each of these two assemblies. I have already shown that two contrary
interests were opposed to each other in the establishment of the federal
constitution. These two interests had given rise to two opinions. It was
the wish of one party to convert the Union into a league of independent
states, or a sort of congress, at which the representatives of the
several peoples would meet to discuss certain points of their common
interests. The other party desired to unite the inhabitants of the
American colonies into one sole nation, and to establish a government,
which should act as the sole representative of the nation, as far as the
limited sphere of its authority would permit. The practical consequences
of these two theories were exceedingly different.

The question was, whether a league was to be established instead of a
national government; whether the majority of the states, instead of a
majority of the inhabitants of the Union, was to give the law; for every
state, the small as well as the great, then retained the character of an
independent power, and entered the Union upon a footing of perfect
equality. If, on the contrary, the inhabitants of the United States were
to be considered as belonging to one and the same nation, it was natural
that the majority of the citizens of the Union should prescribe the law.
Of course the lesser states could not subscribe to the application of
this doctrine without, in fact, abdicating their existence in relation
to the sovereignty of the confederation; since they would have passed
from the condition of a co-equal and co-legislative authority, to that
of an insignificant fraction of a great people. The former system would
have invested them with an excessive authority, the latter would have
annulled their influence altogether. Under these circumstances, the
result was, that the strict rules of logic were evaded, as is usually
the case when interests are opposed to arguments. A middle course was
hit upon by the legislators, which brought together by force two systems
theoretically irreconcilable.

The principle of the independence of the states prevailed in the
formation of the senate, and that of the sovereignty of the nation
predominated in the composition of the house of representatives. It was
decided that each state should send two senators to congress, and a
number of representatives proportioned to its population.[132] It
results from this arrangement that the state of New York has at the
present day forty representatives, and only two senators; the state of
Delaware has two senators, and only one representative; the state of
Delaware is therefore equal to the state of New York in the senate,
while the latter has forty times the influence of the former in the
house of representatives. Thus, if the minority of the nation
preponderates in the senate, it may paralyze the decisions of the
majority represented in the other house, which is contrary to the spirit
of constitutional government.

The facts show how rare and how difficult it is rationally and logically
to combine all the several parts of legislation. In the course of time
different interests arise, and different principles are sanctioned by
the same people; and when a general constitution is to be established,
these interests and principles are so many natural obstacles to the
rigorous application of any political system, with all its consequences.
The early stages of national existence are the only periods at which it
is possible to maintain the complete logic of legislation; and when we
perceive a nation in the enjoyment of this advantage, before we hasten
to conclude that it is wise, we should do well to remember that it is
young. When the federal constitution was formed, the interest of
independence for the separate states, and the interest of union for the
whole people, were the only two conflicting interests which existed
among the Anglo-Americans; and a compromise was necessarily made between
them.

It is, however, just to acknowledge that this part of the constitution
has not hitherto produced those evils which might have been feared. All
the states are young and contiguous; their customs, their ideas, and
their wants, are not dissimilar; and the differences which result from
their size or inferiority do not suffice to set their interests at
variance. The small states have consequently never been induced to
league themselves together in the senate to oppose the designs of the
larger ones; and indeed there is so irresistible an authority in the
legitimate expression of the will of a people, that the senate could
offer but a feeble opposition to the vote of the majority of the house
of representatives.

It must not be forgotten, on the other hand, that it was not in the
power of the American legislators to reduce to a single nation the
people for whom they were making laws. The object of the federal
constitution was not to destroy the independence of the states, but to
restrain it. By acknowledging the real authority of these secondary
communities (and it was impossible to deprive them of it), they
disavowed beforehand the habitual use of constraint in enforcing the
decisions of the majority. Upon this principle the introduction of the
influence of the states into the mechanism of the federal government was
by no means to be wondered at; since it only attested the existence of
an acknowledged power, which was to be humored, and not forcibly
checked.

* * * * *

A FARTHER DIFFERENCE BETWEEN THE SENATE AND THE HOUSE OF
REPRESENTATIVES.

The Senate named by the provincial Legislature--the Representatives, by
the People.--Double Election of the Former--Single Election of the
Latter.--Term of the different Offices.--Peculiar Functions of each
House.

The senate not only differs from the other house in the principle which
it represents, but also in the mode of its election, in the term for
which it is chosen, and in the nature of its functions. The house of
representatives is named by the people, the senate by the legislators of
each state; the former is directly elected; the latter is elected by an
elected body; the term for which the representatives are chosen is only
two years, that of the senators is six. The functions of the house of
representatives are purely legislative, and the only share it takes in
the judicial power is in the impeachment of public officers. The senate
co-operates in the work of legislation, and tries those political
offences which the house of representatives submits to its decision. It
also acts as the great executive council of the nation; the treaties
which are concluded by the president must be ratified by the senate; and
the appointments he may make must be definitively approved by the same
body.[133]

* * * * *

THE EXECUTIVE POWER.[134]

Dependence of the President--He is Elective and Responsible.--He is Free
to act in his own Sphere under the Inspection, but not under the
Direction, of the Senate.--His Salary fixed at his Entry into
Office.--Suspensive Veto.

The American legislators undertook a difficult task in attempting to
create an executive power dependent on the majority of the people and
nevertheless sufficiently strong to act without restraint in its own
sphere. It was indispensable to the maintenance of the republican form
of government that the representatives of the executive power should be
subject to the will of the nation.

The president is an elective magistrate. His honor, his property, his
liberty, and his life, are the securities which the people has for the
temperate use of his power. But in the exercise of his authority he
cannot be said to be perfectly independent; the senate takes cognizance
of his relations with foreign powers, and of the distribution of public
appointments, so that he can neither be bribed, nor can he employ the
means of corruption. The legislators of the Union acknowledged that the
executive power would be incompetent to fulfill its task with dignity
and utility, unless it enjoyed a greater degree of stability and of
strength than had been granted to it in the separate states.

The president is chosen for four years, and he may be re-elected; so
that the chances of a prolonged administration may inspire him with
hopeful undertakings for the public good, and with the means of carrying
them into execution. The president was made the sole representative of
the executive power of the Union; and care was taken not to render his
decisions subordinate to the vote of a council--a dangerous measure,
which tends at the same time to clog the action of the government and to
diminish its responsibility. The senate has the right of annulling
certain acts of the president; but it cannot compel him to take any
steps, nor does it participate in the exercise of the executive power.

The action of the legislature on the executive power may be direct; and
we have just shown that the Americans carefully obviated this influence;
but it may, on the other hand, be indirect. Public assemblies which have
the power of depriving an officer of state of his salary, encroach upon
his independence; and as they are free to make the laws, it is to be
feared lest they should gradually appropriate to themselves a portion of
that authority which the constitution had vested in his hands. This
dependence of the executive power is one of the defects inherent in
republican constitutions. The Americans have not been able to counteract
the tendency which legislative assemblies have to get possession of the
government, but they have rendered this propensity less irresistible.
The salary of the president is fixed, at the time of his entering upon
office, for the whole period of his magistracy. The president is,
moreover, provided with a suspensive veto, which allows him to oppose
the passing of such laws as might destroy the portion of independence
which the constitution awards him. The struggle between the president
and the legislature must always be an unequal one, since the latter is
certain of bearing down all resistance by persevering in its plans; but
the suspensive veto forces it at least to reconsider the matter, and, if
the motion be persisted in, it must then be backed by a majority of
two-thirds of the whole house. The veto is, in fact, a sort of appeal to
the people. The executive power, which, without this security, might
have been secretly oppressed, adopts this means of pleading its cause
and stating its motives. But if the legislature is certain of
overpowering all resistance by persevering in its plans, I reply, that
in the constitutions of all nations, of whatever kind they may be, a
certain point exists at which the legislator is obliged to have recourse
to the good sense and the virtue of his fellow-citizens. This point is
more prominent and more discoverable in republics, while it is more
remote and more carefully concealed in monarchies, but it always exists
somewhere. There is no country in the world in which everything can be
provided for by the laws, or in which political institutions can prove a
substitute for common sense and public morality.

* * * * *

DIFFERENCE BETWEEN THE POSITION OF THE PRESIDENT OF THE UNITED STATES
AND THAT OF A CONSTITUTIONAL KING OF FRANCE.

Executive Power in the United States as Limited and as Partial as the
Supremacy which it Represents.--Executive Power in France as Universal
as the Supremacy it Represents.--The King a Branch of the Legislature.--
The President the mere Executor of the Law.--Other Differences resulting
from the Duration of the two Powers.--The President checked in the
Exercise of the executive Authority.--The King Independent in its
Exercise.--Notwithstanding these Discrepancies, France is more akin to a
Republic than the Union to a Monarchy.--Comparison of the Number of
public Officers depending upon the executive Power in the two countries.

The executive power has so important an influence on the destinies of
nations that I am inclined to pause for an instant at this portion of my
subject, in order more clearly to explain the part it sustains in
America. In order to form an accurate idea of the position of the
president of the United States, it may not be irrelevant to compare it
to that of one of the constitutional kings of Europe. In this comparison
I shall pay but little attention to the external signs of power, which
are more apt to deceive the eye of the observer than to guide his
researches. When a monarchy is being gradually transformed into a
republic, the executive power retains the titles, the honors, the
etiquette, and even the funds of royalty, long after its authority has
disappeared. The English, after having cut off the head of one king, and
expelled another from his throne, were accustomed to accost the
successors of those princes upon their knees. On the other hand, when a
republic falls under the sway of a single individual, the demeanor of
the sovereign is simple and unpretending, as if his authority was not
yet paramount. When the emperors exercised an unlimited control over the
fortunes and the lives of their fellow-citizens, it was customary to
call them Caesar in conversation, and they were in the habit of supping
without formality at their friends' houses. It is therefore necessary to
look below the surface.

The sovereignty of the United States is shared between the Union and the
states, while in France it is undivided and compact: hence arises the
first and the most notable difference which exists between the president
of the United States and the king of France. In the United States the
executive power is as limited and partial as the sovereignty of the
Union in whose name it acts; in France it is as universal as the
authority of the state. The Americans have a federal, and the French a
national government.

The first cause of inferiority results from the nature of things, but it
is not the only one; the second in importance is as follows: sovereignty
may be defined to be the right of making laws: in France, the king
really exercises a portion of the sovereign power, since the laws have
no weight till he has given his assent to them; he is moreover the
executor of all they ordain. The president is also the executor of the
laws, but he does not really co-operate in their formation, since the
refusal of his assent does not annul them. He is therefore merely to be
considered as the agent of the sovereign power. But not only does the
king of France exercise a portion of the sovereign power, he also
contributes to the nomination of the legislature, which exercises the
other portion. He has the privilege of appointing the members of one
chamber, and of dissolving the other at his pleasure; whereas the
president of the United States has no share in the formation of the
legislative body, and cannot dissolve any part of it. The king has the
same right of bringing forward measures as the chambers; a right which
the president does not possess. The king is represented in each assembly
by his ministers, who explain his intentions, support his opinions, and
maintain the principles of the government. The president and his
ministers are alike excluded from congress; so that his influence and
his opinions can only penetrate indirectly into that great body. The
king of France is therefore on an equal footing with the legislature,
which can no more act without him, than he can without it. The president
exercises an authority inferior to, and depending upon, that of the
legislature.

Even in the exercise of the executive power, properly so called, the
point upon which his position seems to be almost analogous to that of
the king of France--the president labors under several causes of
inferiority. The authority of the king, in France, has, in the first
place, the advantage of duration over that of the president: and
durability is one of the chief elements of strength; nothing is either
loved or feared but what is likely to endure. The president of the
United States is a magistrate elected for four years. The king, in
France, is an hereditary sovereign.

In the exercise of the executive power the president of the United
States is constantly subject to jealous scrutiny. He may make, but he
cannot conclude a treaty; he may designate, but he cannot appoint, a
public officer.[135] The king of France is absolute in the sphere of the
executive power.

The president of the United States is responsible for his actions; but
the person of the king is declared inviolable by the French charter.

Nevertheless, the supremacy of public opinion is no less above the head
of one than of the other. This power is less definite, less evident, and
less sanctioned by the laws in France than in America, but in fact
exists. In America it acts by elections and decrees; in France it
proceeds by revolutions; but notwithstanding the different constitutions
of these two countries, public opinion is the predominant authority in
both of them. The fundamental principle of legislation--a principle
essentially republican--is the same in both countries, although its
consequences may be different, and its results more or less extensive.
Whence I am led to conclude, that France with its king is nearer akin to
a republic, than the Union with its president is to a monarchy.

In what I have been saying I have only touched upon the main points of
distinction; and if I could have entered into details, the contrast
would have been rendered still more striking.

I have remarked that the authority of the president in the United States
is only exercised within the limits of a partial sovereignty, while that
of the king, in France, is undivided. I might have gone on to show that
the power of the king's government in France exceeds its natural limits,
however extensive they may be, and penetrates in a thousand different
ways into the administration of private interests. Among the examples of
this influence may be quoted that which results from the great number of
public functionaries, who all derive their appointments from the
government. This number now exceeds all previous limits; it amounts to
138,000[136] nominations, each of which may be considered as an element
of power. The president of the United States has not the exclusive right
of making any public appointments, and their whole number scarcely
exceeds 12,000.[137]

[Those who are desirous of tracing the question respecting the power of
the president to remove every executive officer of the government
without the sanction of the senate, will find some light upon it by
referring to 5th Marshall's Life of Washington, p. 196: 5 Sergeant and
Rawle's Reports (Pennsylvania), 451: Elliot's Debates on the Federal
Constitution, vol iv., p. 355, contains the debate in the House of
Representatives, June 16, 1799, when the question was first mooted:
Report of a committee of the senate in 1822, in Niles's Register of 29th
August in that year. It is certainly very extraordinary that such a vast
power, and one so extensively affecting the whole administration of the
government, should rest on such slight foundations, as an _inference_
from an act of congress, providing that when the secretary of the
treasury should be removed by the president, his assistant should
discharge the duties of the office. How congress could confer the power,
even by a direct act, is not perceived. It must be a necessary
implication from the words of the constitution, or it does not exist. It
has been repeatedly denied in and out of congress, and must be
considered, as yet, an unsettled question.--_American Editor_.]

* * * * *

ACCIDENTAL CAUSES WHICH MAY INCREASE THE INFLUENCE OF THE EXECUTIVE.

External security of the Union.--Army of six thousand Men.--Few
Ships.--The President has no Opportunity of exercising his great
Prerogatives.--In the Prerogatives he exercises he is weak.

If the executive power is feebler in America than in France, the cause
is more attributable to the circumstances than to the laws of the
country.

It is chiefly in its foreign relations that the executive power of a
nation is called upon to exert its skill and vigor. If the existence of
the Union were perpetually threatened, and its chief interest were in
daily connexion with those of other powerful nations, the executive
government would assume an increased importance in proportion to the
measures expected of it, and those which it would carry into effect. The
president of the United States is the commander-in-chief of the army,
but of an army composed of only six thousand men; he commands the fleet,
but the fleet reckons but few sail; he conducts the foreign relations of
the Union, but the United States are a nation without neighbors.
Separated from the rest of the world by the ocean, and too weak as yet
to aim at the dominion of the seas, they have no enemies, and their
interests rarely come into contact with those of any other nation of the
globe.