American Institutions and Their Influence by Alexis de Tocqueville et al

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But if these arguments are strong, perhaps still more powerful reasons
may be advanced against them. Intrigue and corruption are the natural
defects of elective government; but when the head of the state can be
re-elected, these evils rise to a great height, and compromise the very
existence of the country. When a simple candidate seeks to rise by
intrigue, his manoeuvres must necessarily be limited to a narrow sphere;
but when the chief magistrate enters the lists, he borrows the strength
of the government for his own purposes. In the former case the feeble
resources of an individual are in action; in the latter, the state
itself, with all its immense influence, is busied in the work of
corruption and cabal. The private citizen, who employs the most immoral
practices to acquire power, can only act in a manner indirectly
prejudicial to the public prosperity. But if the representative of the
executive descends into the lists, the cares of government dwindle into
second-rate importance, and the success of his election is his first
concern. All laws and negotiations are then to him nothing more than
electioneering schemes; places become the reward of services rendered,
not to the nation, but to its chief; and the influence of the
government, if not injurious to the country, is at least no longer
beneficial to the community for which it was created.

It is impossible to consider the ordinary course of affairs in the
United States without perceiving that the desire of being re-elected is
the chief aim of the president; that his whole administration, and even
his most indifferent measures, tend to this object; and that, as the
crisis approaches, his personal interest takes the place of his interest
in the public good. The principle of re-eligibility renders the corrupt
influence of elective governments still more extensive and pernicious.
It tends to degrade the political morality of the people, and to
substitute adroitness for patriotism.

In America it exercises a still more fatal influence on the sources of
national existence. Every government seems to be afflicted by some evil
inherent in its nature, and the genius of the legislator is shown in
eluding its attacks. A state may survive the influence of a host of bad
laws, and the mischief they cause is frequently exaggerated; but a law
which encourages the growth of the canker within must prove fatal in the
end, although its bad consequences may not be immediately perceived.

The principle of destruction in absolute monarchies lies in the
excessive and unreasonable extension of the prerogative of the crown;
and a measure tending to remove the constitutional provisions which
counterbalance this influence would be radically bad, even if its
consequences should long appear to be imperceptible. By a parity of
reasoning, in countries governed by a democracy, where the people is
perpetually drawing all authority to itself, the laws which increase or
accelerate its action are the direct assailants of the very principle of
the government.

The greatest proof of the ability of the American legislators is, that
they clearly discerned this truth, and that they had the courage to act
up to it. They conceived that a certain authority above the body of the
people was necessary, which should enjoy a degree of independence,
without however being entirely beyond the popular control; an authority
which would be forced to comply with the _permanent_ determinations of
the majority, but which would be able to resist its caprices, and to
refuse its most dangerous demands. To this end they centred the whole
executive power of the nation in a single arm; they granted extensive
prerogatives to the president, and they armed him with the veto to
resist the encroachments of the legislature.

But by introducing the principle of re-election, they partly destroyed
their work; and they rendered the president but little inclined to exert
the great power they had invested in his hands. If ineligible a second
time, the president would be far from independent of the people, for his
responsibility would not be lessened; but the favor of the people would
not be so necessary to him as to induce him to court it by humoring its
desires. If re-eligible (and this is more especially true at the present
day, when political morality is relaxed, and when great men are rare),
the president of the United States becomes an easy tool in the hands of
the majority. He adopts its likings and its animosities, he hastens to
anticipate its wishes, he forestalls its complaints, he yields to its
idlest cravings, and instead of guiding it, as the legislature intended
that he should do, he is ever ready to follow its bidding. Thus, in
order not to deprive the state of the talents of an individual, those
talents have been rendered almost useless, and to reserve an expedient
for extraordinary perils the country has been exposed to daily dangers.

[The question of the propriety of leaving the president re-eligible, is
one of that class which probably must for ever remain undecided. The
author himself, at page 125, gives a strong reason for re-eligibility,
"so that the chance of a prolonged administration may inspire him with
hopeful undertakings for the public good, and with the means of carrying
them into execution,"--considerations of great weight. There is an
important fact bearing upon this question, which should be stated in
connexion with it. President Washington established the practice of
declining a third election, and every one of his successors, either from
a sense of its propriety or from apprehensions of the force of public
opinion, has followed the example. So that it has become as much a part
of the constitution, that no citizen can be a third time elected
president, as if it were expressed in that instrument in words. This may
perhaps be considered a fair adjustment of objections on either side.
Those against a continued and perpetual re-eligibility are certainly
met: while the arguments in favor of an opportunity to prolong an
administration under circumstances that may justify it, are allowed
their due weight. One effect of this practical interpolation of the
constitution unquestionably is, to increase the chances of a president's
being once re-elected; as men will be more disposed to acquiesce in a
measure that thus practically excludes the individual from ever again
entering the field of competition.--_American Editor_]

* * * * *

FEDERAL COURTS.[142]

Political Importance of the Judiciary in the United States.--Difficulty
of treating this Subject.--Utility of judicial Power in Confederations--
What Tribunals could be introduced into the Union.--Necessity of
establishing federal Courts of Justice.--Organization of the national
Judiciary.--The Supreme Court.--In what it differs from all known
Tribunals.

I have inquired into the legislative and executive power of the Union,
and the judicial power now remains to be examined; but in this place I
cannot conceal my fears from the reader. Judicial institutions exercise
a great influence on the condition of the Anglo-Americans, and they
occupy a prominent place among what are properly called political
institutions: in this respect they are peculiarly deserving of our
attention. But I am at a loss to explain the political action of the
American tribunals without entering into some technical details on their
constitution and their forms of proceeding; and I know not how to
descend to these minutiae without wearying the curiosity of the reader
by the natural aridity of the subject, or without risking to fall into
obscurity through a desire to be succinct. I can scarcely hope to escape
these various evils; for if I appear too prolix to a man of the world, a
lawyer may on the other hand complain of my brevity. But these are the
natural disadvantages of my subject, and more especially of the point
which I am about to discuss.

The great difficulty was, not to devise the constitution of the federal
government, but to find out a method of enforcing its laws. Governments
have in general but two means of overcoming the opposition of the people
they govern, viz., the physical force which is at their own disposal,
and the moral force which they derive from the decisions of the courts
of justice.

A government which should have no other means of exacting obedience than
open war, must be very near its ruin; for one of two alternatives would
then probably occur: if its authority was small, and its character
temperate, it would not resort to violence till the last extremity, and
it would connive at a number of partial acts of insubordination, in
which case the state would gradually fall into anarchy; if it was
enterprising and powerful, it would perpetually have recourse to its
physical strength, and would speedily degenerate into a military
despotism. So that its activity would not be less prejudicial to the
community than its inaction.

The great end of justice is to substitute the notion of right for that
of violence; and to place a legal barrier between the power of the
government and the use of physical force. The authority which is awarded
to the intervention of a court of justice by the general opinion of
mankind is so surprisingly great, that it clings to the mere formalities
of justice, and gives a bodily influence to the shadow of the law. The
moral force which courts of justice possess renders the introduction of
physical force exceedingly rare, and it is very frequently substituted
for it; but if the latter proves to be indispensable, its power is
doubled by the association of the idea of law.

A federal government stands in greater need of the support of judicial
institutions than any other, because it is naturally weak, and opposed
to formidable opposition.[143] If it were always obliged to resort to
violence in the first instance, it could not fulfil its task. The Union,
therefore, required a national judiciary to enforce the obedience of the
citizens to the laws, and to repel the attacks which might be directed
against them. The question then remained what tribunals were to exercise
these privileges; were they to be intrusted to the courts of justice
which were already organized in every state? or was it necessary to
create federal courts? It may easily be proved that the Union could not
adapt the judicial power of the state to its wants. The separation of
the judiciary from the administrative power of the state, no doubt
affects the security of every citizen, and the liberty of all. But it is
no less important to the existence of the nation that these several
powers should have the same origin, should follow the same principles,
and act in the same sphere; in a word, that they should be correlative
and homogeneous. No one, I presume, ever suggested the advantage of
trying offences committed in France, by a foreign court of justice, in
order to ensure the impartiality of the judges. The Americans form one
people in relation to their federal government; but in the bosom of this
people divers political bodies have been allowed to subsist, which are
dependent on the national government in a few points, and independent in
all the rest--which have all a distinct origin, maxims peculiar to
themselves, and special means of carrying on their affairs. To intrust
the execution of the laws of the Union to tribunals instituted by these
political bodies, would be to allow foreign judges to preside over the
nation. Nay more, not only is each state foreign to the Union at large,
but it is in perpetual opposition to the common interests, since
whatever authority the Union loses turns to the advantage of the states.
Thus to enforce the laws of the Union by means of the tribunals of the
states, would be to allow not only foreign, but partial judges to
preside over the nation.

But the number, still more than the mere character, of the tribunals of
the states rendered them unfit for the service of the nation. When the
federal constitution was formed, there were already thirteen courts of
justice in the United States which decided causes without appeal. That
number is now increased to twenty-four. To suppose that a state can
subsist, when its fundamental laws may be subjected to four-and-twenty
different interpretations at the same time, is to advance a proposition
alike contrary to reason and to experience.

The American legislators therefore agreed to create a federal judiciary
power to apply the laws of the Union, and to determine certain questions
affecting general interests, which were carefully determined beforehand.
The entire judicial power of the Union was centred in one tribunal,
which was denominated the supreme court of the United States. But, to
facilitate the expedition of business, inferior courts were appended to
it, which were empowered to decide causes of small importance without
appeal, and with appeal causes of more magnitude. The members of the
supreme court are named neither by the people nor the legislature, but
by the president of the United States, acting with the advice of the
senate. In order to render them independent of the other authorities,
their office was made inalienable; and it was determined that their
salary, when once fixed, should not be altered by the legislature.[144]
It was easy to proclaim the principle of a federal judiciary, but
difficulties multiplied when the extent of its jurisdiction was to be
determined.

* * * * *

MEANS OF DETERMINING THE JURISDICTION OF THE FEDERAL COURTS.

Difficulty of determining the Jurisdiction of separate courts of Justice
in Confederation.--The Courts of the Union obtained the Right of fixing
their own Jurisdiction.--In what Respect this Rule attacks the Portion
of Sovereignty reserved to the several States.--The Sovereignty of these
States restricted by the Laws, and the Interpretation of the Laws.--
Consequently, the Danger of the several States is more apparent than
real.

As the constitution of the United States recognized two distinct powers,
in presence of each other, represented in a judicial point of view by
two distinct classes of courts of justice, the utmost care which could
be taken in defining their separate jurisdictions would have been
insufficient to prevent frequent collisions between those tribunals. The
question then arose, to whom the right of deciding the competency of
each court was to be referred.

In nations which constitute a single body politic, when a question is
debated between two courts relating to their mutual jurisdiction, a
third tribunal is generally within reach to decide the difference; and
this is effected without difficulty, because in these nations the
questions of judicial competency have no connexion with the privileges
of the national supremacy. But it was impossible to create an arbiter
between a superior court of the Union and the superior court of a
separate state, which would not belong to one of these two classes. It
was therefore necessary to allow one of these courts to judge its own
cause, and to take or to retain cognizance of the point which was
contested. To grant this privilege to the different courts of the
states, would have been to destroy the sovereignty of the Union _de
facto_, after having established it _de jure_; for the interpretation of
the constitution would soon have restored that portion of independence
to the states of which the terms of that act deprived them. The object
of the creation of a federal tribunal was to prevent the courts of the
states from deciding questions affecting the national interests in their
own department, and so to form a uniform body of jurisprudence for the
interpretation of the laws of the Union. This end would not have been
accomplished if the courts of the several states had been competent to
decide upon cases in their separate capacities, from which they were
obliged to abstain as federal tribunals. The supreme court of the United
States was therefore invested with the right of determining all
questions of jurisdiction.[145]

This was a severe blow upon the independence of the states, which was
thus restricted not only by the laws, but by the interpretation of them;
by one limit which was known, and by another which was dubious; by a
rule which was certain, and a rule which was arbitrary. It is true the
constitution had laid down the precise limits of the federal supremacy,
but whenever this supremacy is contested by one of the states, a federal
tribunal decides the question. Nevertheless, the dangers with which the
independence of the states was threatened by this mode of proceeding are
less serious than they appear to be. We shall see hereafter that in
America the real strength of the country is vested in the provincial far
more than in the federal government. The federal judges are conscious of
the relative weakness of the power in whose name they act, and they are
more inclined to abandon a right of jurisdiction in cases where it is
justly their own, than to assert a privilege to which they have no legal
claim.

* * * * *

DIFFERENT CASES OF JURISDICTION.

The Matter and the Party are the first Conditions of the federal
Jurisdiction.--Suits in which Ambassadors are engaged.--Suits of the
Union.--Of a separate State.--By whom tried.--Causes resulting from the
Laws of the Union.--Why judged by the federal Tribunal.--Causes relating
to the Non-performance of Contracts tried by the federal Courts.--
Consequences of this Arrangement.

After having appointed the means of fixing the competency of the federal
courts, the legislators of the Union defined the cases which should come
within their jurisdiction. It was established, on the one hand, that
certain parties must always be brought before the federal courts,
without any regard to the special nature of the cause; and, on the
other, that certain causes must always be brought before the same
courts, without any regard to the quality of the parties in the suit.
These distinctions were therefore admitted to be the bases of the
federal jurisdiction.

Ambassadors are the representatives of nations in a state of amity with
the Union, and whatever concerns these personages concerns in some
degree the whole Union. When I an ambassador is a party in a suit, that
suit affects the welfare of the nation, and a federal tribunal is
naturally called upon to decide it.

The Union itself may be involved in legal proceedings, and in this case
it would be alike contrary to the customs of all nations, and to common
sense, to appeal to a tribunal representing any other sovereignty than
its own; the federal courts, therefore, take cognizance of these
affairs.

When two parties belonging to two different states are engaged in a
suit, the case cannot with propriety be brought before a court of either
state. The surest expedient is to select a tribunal like that of the
Union, which can excite the suspicions of neither party, and which
offers the most natural as well as the most certain remedy.

When the two parties are not private individuals, but states, an
important political consideration is added to the same motive of equity.
The quality of the parties, in this case, gives a national importance to
all their disputes; and the most trifling litigation of the states may
be said to involve the peace of the whole Union.[146]

The nature of the cause frequently prescribes the rule of competency.
Thus all the questions which concern maritime commerce evidently fall
under the cognizance of the federal tribunals.[147] Almost all these
questions are connected with the interpretation of the law of nations;
and in this respect they essentially interest the Union in relation to
foreign powers. Moreover, as the sea is not included within the limits
of any peculiar jurisdiction, the national courts can only hear causes
which originate in maritime affairs.

The constitution comprises under one head almost all the cases which by
their very nature come within the limits of the federal courts. The rule
which it lays down is simple, but pregnant with an entire system of
ideas, and with a vast multitude of facts. It declares that the judicial
power of the supreme court shall extend to all cases in law and equity
_arising under the laws of the United States_.

Two examples will put the intentions of the legislator in the clearest
light:--

The constitution prohibits the states from making laws on the value and
circulation of money: if, notwithstanding this prohibition, a state
passes a law of this kind, with which the interested parties refuse to
comply because it is contrary to the constitution, the case must come
before a federal court, because it arises under the laws of the United
States. Again, if difficulties arise in the levying of import duties
which have been voted by congress, the federal court must decide the
case, because it arises under the interpretation of a law of the United
States.

This rule is in perfect accordance with the fundamental principles of
the federal constitution. The Union as it was established in 1789,
possesses, it is true, a limited supremacy; but it was intended that
within its limits it should form one and the same people.[148] Within
those limits the Union is sovereign. When this point is established and
admitted, the inference is easy; for if it be acknowledged that the
United States constitute one and the same people within the bounds
prescribed by their constitution, it is impossible to refuse them the
rights which belong to other nations. But it has been allowed, from the
origin of society, that every nation has the right of deciding by its
own courts those questions which concern the execution of its own laws.
To this it is answered, that the Union is in so singular a position,
that in relation to some matters it constitutes a people, and that in
relation to all the rest it is a nonentity. But the inference to be
drawn is, that in the laws relating to these matters the Union possesses
all the rights of absolute sovereignty. The difficulty is to know what
these matters are; and when once it is resolved (and we have shown how
it was resolved, in speaking of the means of determining the
jurisdiction of the federal courts), no farther doubt can arise; for as
soon as it is established that a suit is federal, that is to say, that
it belongs to the share of sovereignty reserved by the constitution to
the Union, the natural consequence is that it should come within the
jurisdiction of a federal court.

Whenever the laws of the United States are attacked, or whenever they
are resorted to in self-defence, the federal courts must be appealed to.
Thus the jurisdiction of the tribunals of the Union extends and narrows
its limits exactly in the same ratio as the sovereignty of the Union
augments or decreases. We have shown that the principal aim of the
legislators of 1789 was to divide the sovereign authority into two
parts. In the one they placed the control of all the general interests
of the Union, in the other the control of the special interest of its
component states. Their chief solicitude was to arm the federal
government with sufficient power to enable it to resist, within its
sphere, the encroachments of the several states. As for these
communities, the principle of independence within certain limits of
their own was adopted in their behalf; and they were concealed from the
inspection, and protected from the control, of the central government.
In speaking of the division of the authority, I observed that this
latter principle had not always been held sacred, since the states are
prevented from passing certain laws, which apparently belong to their
own particular sphere of interest. When a state of the Union passes a
law of this kind, the citizens who are injured by its execution can
appeal to the federal courts.

[The remark of the author, that whenever the laws of the United States
are attacked, or whenever they are resorted to in self-defence, the
federal courts _must be_ appealed to, which is more strongly expressed
in the original, is erroneous and calculated to mislead on a point of
some importance. By the grant of power to the courts of the United
States to decide certain cases, the powers of the state courts are not
suspended, but are exercised concurrently, subject to an appeal to the
courts of the United States. But if the decision of the state court is
_in favor_ of the right, title, or privilege claimed under the
constitution, a treaty, or under a law of congress, no appeal lies to
the federal courts. The appeal is given only when the decision _is
against_ the claimant under the treaty or law. See 3d Cranch, 268. 1
Wheaton, 304.--_American Editor._]

Thus the jurisdiction of the general courts extends not only to all the
cases which arise under the laws of the Union, but also to those which
arise under laws made by the several states in opposition to the
constitution. The states are prohibited from making _ex-post-facto_ laws
in criminal cases; and any person condemned by virtue of a law of this
kind can appeal to the judicial power of the Union. The states are
likewise prohibited from making laws which may have a tendency to impair
the obligations of contracts.[149] If a citizen thinks that an
obligation of this kind is impaired by a law passed in his state, he may
refuse to obey it, and may appeal to the federal courts.[150]