American Institutions and Their Influence by Alexis de Tocqueville et al

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This provision appears to me to be the most serious attack upon the
independence of the states. The rights awarded to the federal government
for purposes of obvious national importance are definite and easily
comprehensible; but those with which this last clause invests it are not
either clearly appreciable or accurately defined. For there are vast
numbers of political laws which influence the obligations of contracts,
which may thus furnish an easy pretext for the aggressions of the
central authority.

[The fears of the author respecting the danger to the independence of
the states of that provision of the constitution, which gives to the
federal courts the authority of deciding when a state law impairs the
obligation of a contract, are deemed quite unfounded. The citizens of
every state have a deep interest in preserving the obligation of the
contracts entered into by them in other states: indeed without such a
controlling power, "commerce among several states" could not exist. The
existence of this common arbiter is of the last importance to the
continuance of the Union itself, for if there were no peaceable means of
enforcing the obligations of contracts, independent of all state
authority, the states themselves would inevitably come in collision in
their efforts to protect their respective citizens from the consequences
of the legislation of another state.

M. De Tocqueville's observation, that the rights with which the clause
in question invests the federal government "are not clearly appreciable
or accurately defined," proceeds upon a mistaken view of the clause
itself. It relates to the _obligation_ of a contract, and forbids any
act by which that obligation is impaired. To American lawyers, this
seems to be as precise and definite as any rule can be made by human
language. The distinction between the _right_ to the fruits of a
contract, and the time, tribunal, and manner, in which that right is to
be enforced, seems very palpable. At all events, since the decision of
the supreme court of the United States in those cases in which this
clause has been discussed, no difficulty is found, practically, in
understanding the exact limits of the prohibition.

The next observation of the author, that "there are vast numbers of
political laws which influence the obligations of contracts, which may
thus furnish an easy pretext for the aggressions of the central
authority," is rather obscure. Is it intended that political laws may be
passed by the central authority, influencing the obligation of a
contract, and thus the contracts themselves be destroyed? The answer to
this would be, that the question would not arise under the clause
forbidding laws impairing the obligation of contracts, for that clause
applies only to the states and not to the federal government.

If it be intended, that the states may find it necessary to pass
political laws, which affect contracts, and that under the pretence of
vindicating the obligation of contracts, the central authority may make
aggressions on the states and annul their political laws:--the answer
is, that the motive to the adoption of the clause was to reach laws of
every description, political as well as all others, and that it was the
abuse by the states of what may be called political laws, viz.: acts
confiscating demands of foreign creditors, that gave rise to the
prohibition. The settled doctrine now is, that states may pass laws in
respect to the making of contracts, may prescribe what contracts shall
be made, and how, but that they cannot impair any that are already made.

The writer of this note is unwilling to dismiss the subject, without
remarking upon what he must think a fundamental error of the author,
which is exhibited in the passage commented on, as well as in other
passages:--and that is, in supposing the judiciary of the United States,
and particularly the supreme court, to be a part of the _political_
federal government, and as the ready instrument to execute its designs
upon the state authorities. Although the judges are in form commissioned
by the United States, yet, in fact, they are appointed by the delegates
of the state, in the senate of the United States, concurrently with, and
acting upon, the nomination of the president. If the legislature of each
state in the Union were to elect a judge of the supreme court, he would
not be less a political officer of the United States than he now is. In
truth, the judiciary have no political duties to perform; they are
arbiters chosen by the federal and state governments, jointly, and when
appointed, as independent of the one as of the other. They cannot be
removed without the consent of the states represented in the senate, and
they can be removed without the consent of the president, and against
his wishes. Such is the theory of the constitution. And it has been felt
practically, in the rejection by the senate of persons nominated as
judges, by a president of the same political party with a majority of
the senators. Two instances of this kind occurred during the
administration of Mr. Jefferson.

If it be alleged that they are exposed to the influence of the executive
of the United States, by the expectation of offices in his gift, the
answer is, that judges of state courts are equally exposed to the same
influence--that all state officers, from the highest to the lowest, are
in the same predicament; and that this circumstance does not, therefore,
deprive them of the character of impartial and independent arbiters.

These observations receive confirmation from every recent decision of
the supreme court of the United States, in which certain laws of
individual states have been sustained, in cases where, to say the least,
it was very questionable whether they did not infringe the provisions of
the constitution, and where a disposition to construe those previsions
broadly and extensively, would have found very plausible grounds to
indulge itself in annulling the state laws referred to. See the cases of
_City of New York vs. Miln_, 11th _Peters_, 103; _Briscoe vs. the Bank
of the Commonwealth of Kentucky_, ib., 257; _Charles River Bridge vs.
Warren Bridge_, ib., 420.--_American Ed._]

* * * * *

PROCEDURE OF THE FEDERAL COURTS.

Natural Weakness of the judiciary Power in Confederations.--Legislators
ought to strive as much as possible to bring private Individuals, and
not States, before the federal Courts.--How the Americans have succeeded
in this.--Direct Prosecutions of private Individuals in the federal
Courts.--Indirect Prosecution in the States which violate the Laws of
the Union.--The Decrees of the Supreme Court enervate but do not destroy
the provincial Laws.

I have shown what the privileges of the federal courts are, and it is no
less important to point out the manner in which they are exercised. The
irresistible authority of justice in countries in which the sovereignty
is undivided, is derived from the fact that the tribunals of those
countries represent the entire nation at issue with the individual
against whom their decree is directed; and the idea of power is thus
introduced to corroborate the idea of right. But this is not always the
case in countries in which the sovereignty is divided: in them the
judicial power is more frequently opposed to a fraction of the nation
than to an isolated individual, and its moral authority and physical
strength are consequently diminished. In federal states the power of the
judge is naturally decreased, and that of the justiciable parties is
augmented. The aim of the legislator in confederate states ought
therefore to be, to render the position of the courts of justice
analogous to that which they occupy in countries where the sovereignty
is undivided; in other words, his efforts ought constantly to tend to
maintain the judicial power of the confederation as the representative
of the nation, and the justiciable party as the representative of an
individual interest.

Every government, whatever may be its constitution, requires the means
of constraining its subjects to discharge their obligations, and of
protecting its privileges from their assaults. As far as the direct
action of the government on the community is concerned, the constitution
of the United States contrived, by a master-stroke of policy, that the
federal courts, acting in the name of the laws, should only take
cognizance of parties in an individual capacity. For, as it had been
declared that the Union consisted of one and the same people within the
limits laid down by the constitution, the inference was that the
government created by this constitution, and acting within these limits,
was invested with all the privileges of a national government, one of
the principal of which is the right of transmitting its injunctions
directly to the private citizen. When, for instance, the Union votes an
impost, it does not apply to the states for the levying of it, but to
every American citizen, in proportion to his assessment. The supreme
court, which is empowered to enforce the execution of this law of the
Union, exerts its influence not upon a refractory state, but upon the
private taxpayer; and, like the judicial power of other nations, it is
opposed to the person of an individual. It is to be observed that the
Union chose its own antagonist; and as that antagonist is feeble, he is
naturally worsted.

But the difficulty increases when the proceedings are not brought
forward _by_ but _against_ the Union. The constitution recognizes the
legislative power of the state; and a law so enacted may impair the
privileges of the Union, in which case a collision is unavoidable
between that body and the state which had passed the law; and it only
remains to select the least dangerous remedy, which is very clearly
deducible from the general principles I have before established.[151]

It may be conceived that, in the case under consideration, the Union
might have sued the state before a federal court, which would have
annulled the act; and by this means it would have adopted a natural
course of proceeding: but the judicial power would have been placed in
open hostility to the state, and it was desirable to avoid this
predicament as much as possible. The Americans hold that it is nearly
impossible that a new law should not impair the interests of some
private individuals by its provisions: these private interests are
assumed by the American legislators as the ground of attack against such
measures as may be prejudicial to the Union, and it is to these cases
that the protection of the supreme court is extended.

Suppose a state vends a certain portion of its territory to a company,
and that a year afterwards it passes a law by which the territory is
otherwise disposed of, and that clause of the constitution, which
prohibits laws impairing the obligation of contracts, is violated. When
the purchaser under the second act appears to take possession, the
possessor under the first act brings his action before the tribunals of
the Union, and causes the title of the claimant to be pronounced null
and void.[152] This, in point of fact, the judicial power of the Union
is contesting the claims of the sovereignty of a state; but it only acts
indirectly and upon a special application of detail: it attacks the law
in its consequences, not in its principle, and it rather weakens than
destroys it.

The last hypothesis that remained was that each state formed a
corporation enjoying a separate existence and distinct civil rights, and
that it could therefore sue or be sued before a tribunal. Thus a state
could bring an action against another state. In this instance, the Union
was not called upon to contest a provincial law, but to try a suit in
which a state was a party. This suit was perfectly similar to any other
cause, except that the quality of the parties was different; and here
the danger pointed out at the beginning of this chapter exists with less
chance of being avoided. The inherent disadvantage of the very essence
of federal constitutions is, that they engender parties in the bosom of
the nation which present powerful obstacles to the free course of
justice.

* * * * *

HIGH RANK OF THE SUPREME COURTS AMONG THE GREAT POWERS OF STATE.

No Nation ever constituted so great a judicial Power as the Americans.
Extent of its Prerogative.--Its political Influence.--The Tranquillity
and the very Existence of the Union depend on the Discretion of the
seven federal Judges.

When we have successfully examined in detail the organization of the
supreme court, and the entire prerogatives which it exercises, we shall
readily admit that a more imposing judicial power was never constituted
by any people. The supreme court is placed at the head of all known
tribunals, both by the nature of its rights and the class of justiciable
parties which it controls.

In all the civilized countries of Europe, the government has always
shown the greatest repugnance to allow the cases to which it was itself
a party to be decided by the ordinary course of justice. This repugnance
naturally attains its utmost height in an absolute government; and, on
the other hand, the privileges of the courts of justice are extended
with the increasing liberties of the people; but no European nation has
at present held that all judicial controversies, without regard to their
origin, can be decided by the judges of common law.

In America this theory has been actually put in practice; and the
supreme court of the United States is the sole tribunal of the nation.
Its power extends to all the cases arising under laws and treaties made
by the executive and legislative authorities, to all cases of admiralty
and maritime jurisdiction, and in general to all points which affect the
law of nations. It may even be affirmed that, although its constitution
is essentially judicial, its prerogatives are almost entirely political.
Its sole object is to enforce the execution of the laws of the Union;
and the Union only regulates the relations of the government with the
citizens, and of the nation with foreign powers: the relations of
citizens among themselves are almost exclusively regulated by the
sovereignty of the states.

A second and still greater cause of the preponderance of this court may
be adduced. In the nations of Europe the courts of justice are only
called upon to try the controversies of private individuals; but the
supreme court of the United States summons sovereign powers to its bar.
When the clerk of the court advances on the steps of the tribunal, and
simply says, "The state of New York _versus_ the state of Ohio," it is
impossible not to feel that the court which he addresses is no ordinary
body; and when it is recollected that one of these parties represents
one million, and the other two millions of men, one is struck by the
responsibility of the seven judges whose decision is about to satisfy or
to disappoint so large a number of their fellow-citizens.

The peace, the prosperity, and the very existence of the Union, are
invested in the hands of the seven judges. Without their active
co-operation the constitution would be a dead letter: the executive
appeals to them for assistance against the encroachments of the
legislative powers; the legislature demands their protection from the
designs of the executive; they defend the Union from the disobedience of
the states, the states from the exaggerated claims of the Union, the
public interest against the interests of private citizens, and the
conservative spirit of order against the fleeting innovations of
democracy. Their power is enormous, but it is clothed in the authority
of public opinion. They are the all-powerful guardians of a people which
respects law; but they would be impotent against popular neglect or
popular contempt. The force of public opinion is the most intractable of
agents, because its exact limits cannot be defined; and it is not less
dangerous to exceed, than to remain below the boundary prescribed.

The federal judges must not only be good citizens, and men possessed of
that information and integrity which are indispensable to magistrates,
but they must be statesmen--politicians, not unread in the signs of the
times, not afraid to brave the obstacles which can be subdued, nor slow
to turn aside such encroaching elements as may threaten the supremacy of
the Union and the obedience which is due to the laws.

The president, who exercises a limited power, may err without causing
great mischief in the state. Congress may decide amiss without
destroying the Union, because the electoral body in which congress
originates may cause it to retract its decision by changing its members.
But if the supreme court is ever composed of imprudent men or bad
citizens, the Union may be plunged into anarchy or civil war.

The real cause of this danger, however, does not lie in the constitution
of the tribunal, but in the very nature of federal governments. We have
observed that in confederate peoples it is especially necessary to
consolidate the judicial authority, because in no other nations do those
independent persons who are able to cope with the social body, exist, in
greater power or in a better condition to resist the physical strength
of the government. But the more a power requires to be strengthened, the
more extensive and independent it must be made; and the dangers which
its abuse may create are heightened by its independence and its
strength. The source of the evil is not, therefore, in the constitution
of the power, but in the constitution of those states which renders its
existence necessary.

* * * * *

IN WHAT RESPECTS THE FEDERAL CONSTITUTION IS SUPERIOR TO THAT OF THE
STATES.

In what respects the Constitution of the Union can be compared to that
of the States.--Superiority of the Constitution of the Union
attributable to the Wisdom of the federal Legislators.--Legislature of
the Union less dependent on the People than that of the States.--
Executive Power more independent in its Sphere.--Judicial Power less
subjected to the Inclinations of the Majority.--Practical Consequences
of these Facts.--The Dangers inherent in a democratic Government eluded
by the federal Legislators, and increased by the Legislators of the
States.

The federal constitution differs essentially from that of the states in
the ends which it is intended to accomplish; but in the means by which
these ends are promoted, a greater analogy exists between them. The
objects of the governments are different, but their forms are the same;
and in this special point of view there is some advantage in comparing
them together.

I am of opinion that the federal constitution is superior to all the
constitutions of the states, for several reasons.

The present constitution of the Union was formed at a later period than
those of the majority of the states, and it may have derived some
melioration from past experience. But we shall be led to acknowledge
that this is only a secondary cause of its superiority, when we
recollect that eleven new states have been added to the American
confederation since the promulgation of the federal constitution, and
that these new republics have always rather exaggerated than avoided the
defects which existed in the former constitutions.

The chief cause of the superiority of the federal constitution lay in
the character of the legislators who composed it. At the time when it
was formed the dangers of the confederation were imminent, and its ruin
seemed inevitable. In this extremity the people chose the men who most
deserved the esteem, rather than those who had gained the affections of
the country. I have already observed, that distinguished as almost all
the legislators of the Union were for their intelligence, they were
still more so for their patriotism. They had all been nurtured at a time
when the spirit of liberty was braced by a continual struggle against a
powerful and predominant authority. When the contest was terminated,
while the excited passions of the populace persisted in warring with
dangers which had ceased to threaten them, these men stopped short in
their career; they cast a calmer and more penetrating look upon the
country which was now their own; they perceived that the war of
independence was definitely ended, and that the only dangers which
America had to fear were those which might result from the abuse of the
freedom she had won. They had the courage to say what they believed to
be true, because they were animated by a warm and sincere love of
liberty; and they ventured to propose restrictions, because they were
resolutely opposed to destruction.[153]

The greater number of the constitutions of the states assign one year
for the duration of the house of representatives, and two years for that
of the senate; so that members of the legislative body are constantly
and narrowly tied down by the slightest desires of their constituents.
The legislators of the Union were of opinion that this excessive
dependence of the legislature tended to alter the nature of the main
consequences of the representative system, since it vested the source
not only of authority, but of government, in the people. They increased
the length of the time for which the representatives were returned, in
order to give them freer scope for the exercise of their own judgment.

The federal constitution, as well as the constitutions of the different
states, divided the legislative body into two branches. But in the
states these two branches were composed of the same elements and elected
in the same manner. The consequence was that the passions and
inclinations of the populace were as rapidly and as energetically
represented in one chamber as in the other, and that laws were made with
all the characteristics of violence and precipitation. By the federal
constitution the two houses originate in like manner in the choice of
the people; but the conditions of eligibility and the mode of election
were changed, to the end that if, as is the case in certain nations, one
branch of the legislature represents the same interests as the other, it
may at least represent a superior degree of intelligence and discretion.
A mature age was made one of the conditions of the senatorial dignity,
and the upper house was chosen by an elected assembly of a limited
number of members.

To concentrate the whole social force in the hands of the legislative
body is the natural tendency of democracies; for as this is the power
which emanates the most directly from the people, it is made to
participate most fully in the preponderating authority of the multitude,
and it is naturally led to monopolise every species of influence. This
concentration is at once prejudicial to a well-conducted administration,
and favorable to the despotism of the majority. The legislators of the
states frequently yielded to these democratic propensities, which were
invariably and courageously resisted by the founders of the Union.

In the states the executive power is vested in the hands of a
magistrate, who is apparently placed upon a level with the legislature,
but who is in reality nothing more than the blind agent and the passive
instrument of its decisions. He can derive no influence from the
duration of his functions, which terminate with the revolving year, or
from the exercise of prerogatives which can scarcely be said to exist.
The legislature can condemn him to inaction by intrusting the execution
of the laws to special committees of its own members, and can annul his
temporary dignity by depriving him of his salary. The federal
constitution vests all the privileges and all the responsibility of the
executive power in a single individual. The duration of the presidency
is fixed at four years; the salary of the individual who fills that
office cannot be altered during the term of his functions; he is
protected by a body of official dependents, and armed with a suspensive
veto. In short, every effort was made to confer a strong and independent
position upon the executive authority, within the limits which had been
prescribed to it.

In the constitution of all the states the judicial power is that which
remains the most independent of the legislative authority: nevertheless,
in all the states the legislature has reserved to itself the right of
regulating the emoluments of the judges, a practice which necessarily
subjects these magistrates to its immediate influence. In some states
the judges are only temporarily appointed, which deprives them of a
great portion of their power and their freedom. In others the
legislative and judicial powers are entirely confounded: thus the senate
of New York, for instance, constitutes in certain cases the superior
court of the state. The federal constitution, on the other hand,
carefully separates the judicial authority from all external influences:
and it provides for the independence of the judges, by declaring that
their salary shall not be altered, and that their functions shall be
inalienable.