American Institutions and Their Influence by Alexis de Tocqueville et al

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I have shown the advantages which the Americans derive from their
federal system; it remains for me to point out the circumstances which
render that system practicable, as its benefits are not to be enjoyed by
all nations. The incidental defects of the federal system which
originate in the laws may be corrected by the skill of the legislator,
but there are farther evils inherent in the system which cannot be
counteracted by the peoples which adopt it. These nations must therefore
find the strength necessary to support the natural imperfections of the
government.

The most prominent evil of all federal systems is the very complex
nature of the means they employ. Two sovereignties are necessarily in
the presence of each other. The legislator may simplify and equalize the
action of these two sovereignties, by limiting each of them to a sphere
of authority accurately defined; but he cannot combine them into one, or
prevent them from running into collision at certain points. The federal
system therefore rests upon a theory which is necessarily complicated,
and which demands the daily exercise of a considerable share of
discretion on the part of those it governs.

A proposition must be plain to be adopted by the understanding of a
people. A false notion, which is clear and precise, will always meet
with a greater number of adherents in the world than a true principle
which is obscure or involved. Hence it arises that parties, which are
like small communities in the heart of the nation, invariably adopt some
principle or some name as a symbol, which very inadequately represents
the end they have in view, and the means which are at their disposal,
but without which they could neither act nor subsist. The governments
which are founded upon a single principle or a single feeling which is
easily defined, are perhaps not the best, but they are unquestionably
the strongest and the most durable in the world.

In examining the constitution of the United States, which is the most
perfect federal constitution that ever existed, one is startled, on the
other hand, at the variety of information and the excellence of
discretion which it presupposes in the people whom it is meant to
govern. The government of the Union depends entirely upon legal
fictions; the Union is an ideal notion which only exists in the mind,
and whose limits and extent can only be discerned by the understanding.

When once the general theory is comprehended, numerous difficulties
remain to be solved in its application; for the sovereignty of the Union
is so involved in that of the states, that it is impossible to
distinguish its boundaries at the first glance. The whole structure of
the government is artificial and conventional; and it would be
ill-adapted to a people which has not long been accustomed to conduct
its own affairs, or to one in which the science of politics has not
descended to the humblest classes of society. I have never been more
struck by the good sense and the practical judgment of the Americans
than in the ingenious devices by which they elude the numberless
difficulties resulting from their federal constitution. I scarcely ever
met with a plain American citizen who could not distinguish, with
surprising facility, the obligations created by the laws of congress
from those created by the laws of his own state; and who, after having
discriminated between the matters which come under the cognizance of the
Union, and those which the local legislature is competent to regulate,
could not point out the exact limit of the several jurisdictions of the
federal courts and the tribunals of the state.

The constitution of the United States is like those exquisite
productions of human industry which ensure wealth and renown to their
inventors, but which are profitless in any other hands. This truth is
exemplified by the condition of Mexico at the present time. The Mexicans
were desirous of establishing a federal system, and they took the
federal constitution of their neighbors the Anglo-Americans as their
model, and copied it with considerable accuracy.[157] But although they
had borrowed the letter of the law, they were unable to create or to
introduce the spirit and the sense which gave it life. They were
involved in ceaseless embarrassments between the mechanism of their
double government; the sovereignty of the states and that of the Union
perpetually exceeded their respective privileges, and entered into
collision; and to the present day Mexico is alternately the victim of
anarchy and the slave of military despotism.

The second and the most fatal of all the defects I have alluded to, and
that which I believe to be inherent in the federal system, is the
relative weakness of the government of the Union. The principle upon
which all confederations rest is that of a divided sovereignty. The
legislator may render this partition less perceptible, he may even
conceal it for a time from the public eye, but he cannot prevent it from
existing; and a divided sovereignty must always be less powerful than an
entire supremacy. The reader has seen in the remarks I have made on the
constitution of the United States, that the Americans have displayed
singular ingenuity in combining the restriction of the power of the
Union within the narrow limits of the federal government, with the
semblance, and to a certain extent with the force of a national
government. By this means the legislators of the Union have succeeded in
diminishing, though not in counteracting, the natural danger of
confederations.

It has been remarked that the American government does not apply itself
to the states, but that it immediately transmits its injunctions to the
citizens, and compels them as isolated individuals to comply with its
demands. But if the federal law were to clash with the interests and
prejudices of a state, it might be feared that all the citizens of that
state would conceive themselves to be interested in the cause of a
single individual who should refuse to obey. If all the citizens of the
state were aggrieved at the same time and in the same manner by the
authority of the Union, the federal government would vainly attempt to
subdue them individually; they would instinctively unite in the common
defence, and they would derive a ready-prepared organization from the
share of sovereignty which the institution of their state allows them to
enjoy. Fiction would give way to reality, and an organized portion of
the territory might then contest the central authority.

The same observation holds good with regard to the federal jurisdiction.
If the courts of the Union violated an important law of a state in a
private case, the real, if not the apparent contest would arise between
the aggrieved state, represented by a citizen, and the Union,
represented by its courts of justice.[158]

He would have but a partial knowledge of the world who should imagine
that it is possible, by the aid of legal fictions, to prevent men from
finding out and employing those means of gratifying their passions which
have been left open to them; and it may be doubted whether the American
legislators, when they rendered a collision between the two
sovereignties less probable, destroyed the causes of such a misfortune.
But it may even be affirmed that they were unable to ensure the
preponderance of the federal element in a case of this kind. The Union
is possessed of money and of troops, but the affections and the
prejudices of the people are in the bosom of the states. The sovereignty
of the Union is an abstract being, which is connected with but few
external objects; the sovereignty of the states is hourly perceptible,
easily understood, constantly active; and if the former is of recent
creation, the latter is coeval with the people itself. The sovereignty
of the Union is factitious, that of the states is natural, and derives
its existence from its own simple influence, like the authority of a
parent. The supreme power of the nation affects only a few of the chief
interests of society; it represents an immense but remote country, and
claims a feeling of patriotism which is vague and ill-defined; but the
authority of the states controls every individual citizen at every hour
and in all circumstances; it protects his property, his freedom, and his
life; and when we recollect the traditions, the customs, the prejudices
of local and familiar attachment with which it is connected, we cannot
doubt the superiority of a power which is interwoven with every
circumstance that renders the love of one's native country instinctive
to the human heart.

Since legislators are unable to obviate such dangerous collisions as
occur between the two sovereignties which co-exist in the federal
system, their first object must be, not only to dissuade the confederate
states from warfare, but to encourage such institutions as may promote
the maintenance of peace. Hence it results that the federal compact
cannot be lasting unless there exists in the communities which are
leagued together, a certain number of inducements to union which render
their common dependance agreeable, and the task of the government light;
and that system cannot succeed without the presence of favorable
circumstances added to the influence of good laws. All the people which
have ever formed a confederation have been held together by a certain
number of common interests, which served as the intellectual ties of
association.

But the sentiments and the principles of man must be taken into
consideration as well as his immediate interest. A certain uniformity of
civilisation is not less necessary to the durability of a confederation,
than a uniformity of interests in the states which compose it. In
Switzerland the difference which exists between the canton of Uri and
the canton of Vaud is equal to that between the fifteenth and nineteenth
centuries; and, properly speaking, Switzerland has never possessed a
federal government. The Union between these two cantons only subsists
upon the map; and their discrepancies would soon be perceived if an
attempt were made by a central authority to prescribe the same laws to
the whole territory.

One of the circumstances which most powerfully contribute to support the
federal government in America, is that the states have not only similar
interests, a common origin, and a common tongue, but that they are also
arrived at the same stage of civilisation; which almost always renders a
union feasible. I do not know of any European nation, how small soever
it may be, which does not present less uniformity in its different
provinces than the American people, which occupies a territory as
extensive as one half of Europe. The distance from the state of Maine to
that of Georgia is reckoned at about one thousand miles; but the
difference between the civilisation of Maine and that of Georgia is
slighter than the difference between the habits of Normandy and those of
Britany. Maine and Georgia, which are placed at the opposite extremities
of a great empire, are consequently in the natural possession of more
real inducements to form a confederation than Normandy and Britany,
which are only separated by a bridge.

The geographical position of the country contributed to increase the
facilities which the American legislators derived from the manners and
customs of the inhabitants; and it is to this circumstance that the
adoption and the maintenance of the federal system are mainly
attributable.

The most important occurrence which can mark the annals of a people is
the breaking out of a war. In war a people struggle with the energy of a
single man against foreign nations, in the defence of its very
existence. The skill of a government, the good sense of the community,
and the natural fondness which men entertain for their country, may
suffice to maintain peace in the interior of a district, and to favor
its internal prosperity; but a nation can only carry on a great war at
the cost of more numerous and more painful sacrifices; and to suppose
that a great number of men will of their own accord comply with the
exigencies of the state, is to betray an ignorance of mankind. All the
peoples which have been obliged to sustain a long and serious warfare
have consequently been led to augment the power of their government.
Those which have not succeeded in this attempt have been subjugated. A
long war almost always places nations in the wretched alternative of
being abandoned to ruin by defeat, or to despotism by success. War
therefore renders the symptoms of the weakness of a government most
palpable and most alarming; and I have shown that the inherent defect of
federal governments is that of being weak.

The federal system is not only deficient in every kind of centralized
administration, but the central government itself is imperfectly
organized, which is invariably an influential cause of inferiority when
the nation is opposed to other countries which are themselves governed
by a single authority. In the federal constitution of the United States,
by which the central government possesses more real force, this evil is
still extremely sensible. An example will illustrate the case to the
reader.

The constitution confers upon congress the right of "calling forth
militia to execute the laws of the Union, suppress insurrections, and
repel invasions;" and another article declares that the president of the
United States is the commander-in-chief of the militia. In the war of
1812, the president ordered the militia of the northern states to march
to the frontiers; but Connecticut and Massachusetts, whose interests
were impaired by the war, refused to obey the command. They argued that
the constitution authorizes the federal government to call forth the
militia in cases of insurrection or invasion, but that, in the present
instance, there was neither invasion nor insurrection. They added, that
the same constitution which conferred upon the Union the right of
calling forth the militia, reserved to the states that of naming the
officers; and that consequently (as they understood the clause) no
officer of the Union had any right to command the militia, even during
war, except the president in person: and in this case they were ordered
to join an army commanded by another individual. These absurd and
pernicious doctrines received the sanction not only of the governors and
legislative bodies, but also of the courts of justice in both states;
and the federal government was constrained to raise elsewhere the troops
which it required.[159]

The only safeguard which the American Union, with all the relative
perfection of its laws, possesses against the dissolution which would be
produced by a great war, lies in its probable exemption from that
calamity. Placed in the centre of an immense continent, which offers a
boundless field for human industry, the Union is almost as much
insulated from the world as if its frontiers were girt by the ocean.
Canada contains only a million of inhabitants, and its population is
divided into two inimical nations. The rigor of the climate limits the
extension of its territory, and shuts up its ports during the six months
of winter. From Canada to the Gulf of Mexico a few savage tribes are to
be met with, which retire, perishing in their retreat, before six
thousand soldiers. To the south, the Union has a point of contact with
the empire of Mexico; and it is thence that serious hostilities may one
day be expected to arise. But for a long while to come, the uncivilized
state of the Mexican community, the depravity of its morals, and its
extreme poverty, will prevent that country from ranking high among
nations. As for the powers of Europe, they are too distant to be
formidable.[160]

The great advantage of the United States does not, then, consist in a
federal constitution which allows them to carry on great wars, but in a
geographical position, which renders such enterprises improbable.

No one can be more inclined than I am myself to appreciate the
advantages of the federal system, which I hold to be one of the
combinations most favorable to the prosperity and freedom of man. I envy
the lot of those nations which have been enabled to adopt it; but I
cannot believe that any confederate peoples could maintain a long or an
equal contest with a nation of similar strength in which the government
should be centralised. A people which should divide its sovereignty into
fractional powers, in the presence of the great military monarchies of
Europe, would, in my opinion, by that very act, abdicate its power, and
perhaps its existence and its name. But such is the admirable position
of the New World, that man has no other enemy than himself; and that in
order to be happy and to be free, it suffices to seek the gifts of
prosperity and the knowledge of freedom.

* * * * *

Notes:

[119] See the constitution of the United States.

[120] See the articles of the first confederation formed in 1778. This
constitution was not adopted by all the states until 1781. See also the
analysis given of this constitution in the Federalist, from No. 15 to
No. 22 inclusive, and Story's "Commentary on the Constitution of the
United States," pp. 85-115.

[121] Congress made this declaration on the 21st of February, 1787.

[122] It consisted of fifty-five members: Washington, Madison, Hamilton,
and the two Morrises, were among the number.

[123] It was not adopted by the legislative bodies, but representatives
were elected by the people for this sole purpose; and the new
constitution was discussed at length in each of these assemblies.

[124] See the amendment to the federal constitution; Federalist, No. 32.
Story, p. 711. Kent's Commentaries, Vol. i., p. 364.

It is to be observed, that whenever the _exclusive_ right of regulating
certain matters is not reserved to congress by the constitution, the
states may take up the affair, until it is brought before the national
assembly. For instance, congress has the right of making a general law
of bankruptcy, which, however, it neglects to do. Each state is then at
liberty to make a law for itself. This point, however, has been
established by discussion in the law-courts, and may be said to belong
more properly to jurisprudence.

[125] The action of this court is indirect, as we shall hereafter show.

[126] It is thus that the Federalist, No. 45, explains the division of
supremacy between the union and the states: "The powers delegated by the
constitution to the federal government are few and defined. Those which
are to remain in the state governments are numerous and indefinite. The
former will be exercised principally on external objects, as war, peace,
negotiation, and foreign commerce. The powers reserved to the several
states will extend to all the objects which, in the ordinary course of
affairs, concern the internal order and prosperity of the state."

I shall often have occasion to quote the Federalist in this work. When
the bill which has since become the constitution of the United States
was submitted to the approval of the people, and the discussions were
still pending, three men who had already acquired a portion of that
celebrity which they have since enjoyed, John Jay, Hamilton, and
Madison, formed an association with the intention of explaining to the
nation the advantages of the measure which was proposed. With this view
they published a series of articles in the shape of a journal, which now
form a complete treatise. They entitled their journal, "The Federalist,"
a name which has been retained in the work. The Federalist is an
excellent book, which ought to be familiar to the statesmen of all
countries, although it especially concerns America.

[127] See constitution, sect. 8. Federalist, Nos. 41 and 42. Kent's
Commentaries, vol. i., p. 207. Story, pp. 358-382; 409-426.

[128] Several other privileges of the same kind exist, such as that
which empowers the Union to legislate on bankruptcy, to grant patents,
and other matters in which its intervention is clearly necessary.

[129] Even in these cases its interference is indirect. The Union
interferes by means of the tribunals, as will be hereafter shown.

[130] Federal Constitution, sect. 10, art. 1.

[131] Constitution, sect. 8, 9, and 10. Federalist, Nos. 30-36
inclusive, and 41-44. Kent's Commentaries, vol. i., pp. 207 and 381.
Story pp. 329 and 514.

[132] Every ten years congress fixes anew the number of representatives
which each state is to furnish. The total number was 69 in 1789, and 240
in 1833. (See American Almanac, 1834, p. 194.)

The constitution decided that there should not be more than one
representative for every 30,000 persons; but no minimum was fixed upon.
The congress has not thought fit to augment the number of
representatives in proportion to the increase of population. The first
act which was passed on the subject (14th April, 1792: see Laws of the
United States, by Story, vol. i., p. 235) decided that there should be
one representative for every 33,000 inhabitants. The last act, which was
passed in 1822, fixes the proportion at one for 48,000. The population
represented is composed of all the freemen and of three-fifths of the
slaves.

[133] See the Federalist, Nos. 52-66, inclusive. Story, pp. 199-314
Constitution of the United States, sections 2 and 3.

[134] See the Federalist, Nos. 67-77. Constitution of the United States,
a. t. 2. Story, pp. 115; 515-780. Kent's Commentaries, p. 255.

[135] The constitution had left it doubtful whether the president was
obliged to consult the senate in the removal as well as in the
appointment of federal officers. The Federalist (No. 77) seemed to
establish the affirmative; but in 1789, congress formally decided that
as the president was responsible for his actions, he ought not to be
forced to employ agents who had forfeited his esteem. See Kent's
Commentaries, vol. i., p. 289.

[136] The sums annually paid by the state to these officers amount to
200,000,000 francs (eight millions sterling).

[137] This number is extracted from the "National Calendar," for 1833.
The National Calendar is an American almanac which contains the names of
all the federal officers.

It results from this comparison that the king of France has eleven times
as many places at his disposal as the president, although the population
of France is not much more than double that of the Union.

[138] As many as it sends members to congress. The number of electors at
the election of 1833 was 288. (See the National Calendar, 1833.)

[139] The electors of the same state assemble, but they transmit to the
central government the list of their individual votes, and not the mere
result of the vote of the majority.

[140] In this case it is the majority of the states, and not the
majority of the members, which decides the question; so that New York
has not more influence in the debate than Rhode Island. Thus the
citizens of the Union are first consulted as members of one and the same
community; and, if they cannot agree, recourse is had to the division of
the states, each of which has a separate and independent vote. This is
one of the singularities of the federal constitution which can only be
explained by the jar of conflicting interests.

[141] Jefferson, in 1801, was not elected until the thirty-sixth time of
balloting.

[142] See chapter vi., entitled, "Judicial Power in the United States."
This chapter explains the general principles of the American theory of
judicial institutions. See also the federal constitution, art. 3. See
the Federalist, Nos. 78-83, inclusive: and a work entitled,
"Constitutional Law, being a View of the Practice and Jurisdiction of
the Courts of the United States," by Thomas Sergeant. See Story, pp.
134, 162, 489, 511, 581, 668; and the organic law of the 24th September,
1789, in the collection of the laws of the United States, by Story, vol.
i., p. 53.

[143] Federal laws are those which most require courts of justice, and
those at the same time which have most rarely established them. The
reason is that confederations have usually been formed by independent
states, which entertained no real intention of obeying the central
government, and which very readily ceded the right of commanding to the
federal executive, and very prudently reserved the right of
non-compliance to themselves.

[144] The Union was divided into districts, in each of which a resident
federal judge was appointed, and the court in which he presided was
termed a "district court." Each of the judges of the supreme court
annually visits a certain portion of the Republic, in order to try the
most important causes upon the spot; the court presided over by this
magistrate is styled a "circuit court." Lastly, all the most serious
cases of litigation are brought before the supreme court, which holds a
solemn session once a year, at which all the judges of the circuit
courts must attend. The jury was introduced into the federal courts in
the same manner, and in the same cases as into the courts of the states.