Guest Essayist: Eric Wise

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The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 130 – 143 of this edition of Democracy in America.

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On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 15-19

In the hands of seven federal judges rest ceaselessly the peace, the prosperity, the very existence of the Union. Without them, the Constitution is a dead letter…”

– Alexis De Tocqueville

 

The great observer of the American regime is Alexis De Tocqueville. An observer is most often distinct from a participant. De Tocqueville sees America from the outside.

But to say he sees America from the outside is insufficient. We are invited to ask from what vantage point of the outside does De Tocqueville observe.

It would be easy to conclude he observes from another great young democracy, France. After all, his subject, democracy in America, suggests that democracy is going on somewhere else.

Democracy in America was first published in 1835. This is the period of the July Monarchy in France, which began with the overthrow of one Bourbon monarch, Charles X, to replace him with another Bourbon monarch, Louis Phillipe. De Tocqueville could have accurately titled his book Democracy Today, given that democracy in America was at that time the only democracy game in town.

Why digress so? Because in reading De Tocqueville it helps to understand that, as astute an observer as he is, he is in fact an alien to the system in America. De Tocqueville truly knows only monarchy.

In this spirit he writes, “a federal government ought more than any other to desire to obtain the support of justice, because in its nature it is weaker, and one can more easily organize resistance against it.” Is this observation made because for an observer looking down from a monarchical perch, that is how the American system appears?

In America, they have put this theory into practice. The Supreme Court of the United States is the sole, unique tribunal of the nation,” writes De Tocqueville. “Sole” reminds us of the root “mono”, which is one half the root of “monarchy”, which means rule of one. This idea foreshadows a potential corruption of the institutions of the United States, which we will get to later.

Let’s look at De Tocqueville’s perspective and then at the possible corruption.

De Tocqueville appreciates how the United States’ federal government and the United States’ state governments are both ground up institutions. That is, each part of the federal system represents delegations of sovereign authority from people to the government. The people of each state lend certain aspects of their sovereignty to the state governments, and the people of the United States lend their sovereignty collectively to the United States.

As De Tocqueville wrote, “The first question which awaited the Americans … was so to divide the authority of the different States…, whilst the entire nation, represented by the Union, should continue to form a compact body, and to provide for the general exigencies of the people.

This sense of the sovereignty of individuals, which is the basis of consent in America, is bred in the bone. Perhaps the first instance of this practice occurs in Connecticut through the adoption of the Fundamental Orders of Connecticut without any reference to royal authority. As Thomas Hooker, a leading Puritan minister in New England, had said in 1638, well before Hobbes and Locke wrote any jot or tittle on the subject, “The foundation of authority is laid firstly in the free consent of the people.

That ethos as reflected in the United States Constitution leads to dual sovereignties that are derivative of the sovereignty and consent of the people. With that dual sovereignty comes dual judicial systems, one state and one federal. And while De Tocqueville makes no mention of Puritans such as Hooker, he appears to understand this.

Thus De Tocqueville observes with interest that “It may easily be proved that the Union could not adapt the judicial power of the States….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 I venture an American of De Tocqueville’s time would have seen this procedurally requirement slightly differently, as they would not have admitted the possibility of a sole power precisely because there cannot be two sole powers, of course. If the sole power of the American regime is the consent of the people, then there is no room for judicial supremacy. De Tocqueville, one dares say, may have mistaken, ever so slightly, or as a modern man might say, subconsciously, the power of the Supreme Court with the power of a king.

This brings us to corruption. At the time De Tocqueville was writing the United States was experiencing a drought of new amendments to the Constitution, new affirmative and formal acts of consent, that began in 1804 and would not end until after the Civil War with the 13th Amendment. To fill the gap, the Supreme Court, after De Tocqueville, handed down the Dred Scott decision to settle once and for all a regime question that could only be resolved through the consent process. Justice Taney, the author of Dred Scott, assured a credulous President James Buchanan that the regime question of popular sovereignty set forth in his Dred Scott opinion, would put to rest the political instability over slavery that troubled the regime. Taney could scarcely have been more wrong.

Today we suffer from a similar drought of amendments, the last fully consummated and unified process for the 26th Amendment having been completed in 1971 (the 27th Amendment having been a drawn-out event that began as the Congressional Compensation Act of 1789). De Tocqueville might see the change as an example of the power of the Supreme Court analogous to a monarch. But from the perspective of an American participant it is hard to unsee it as the ebb of the true sole power in America, the people, which ought to be restored through a process like a convention of states, where the people of the United States might take on regime questions after the manner of the Founders, and in the manner the Founders intended, as reflected in Article V.

 

   J. Eric Wise is a partner in the law firm of Alston & Bird.

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3 replies
  1. Jim Jenness
    Jim Jenness says:

    Very insighful essay. Happy to see the advocation for an Article V convention of states. I will research this essayist to see if has written more about it.

    (No book entry for this comment please.)

    Reply
  2. Harry Stumpf
    Harry Stumpf says:

    I like the ‘drought’ of Amendments. Amending the Constitution should be rare and difficult. The main consideration is that is be possible if enough citizens want it and are willing to go through the lengthy process. This way short-lived political considerations don’t make it into the Constitution.

    The Constitution should continue forever to reflect the original intentions of the founders. Tweaks can be made to reflect a changing world.

    My favorite change would be to repeal the 17th amendment. It violates the original intent of the founders.

    Reply
  3. Barbara Zakszewski
    Barbara Zakszewski says:

    Our constitution was written specifically to make it difficult to amend. An Article V convention of States is one of only a few ways the constitution can be amended and perhaps give We the People some recounts when a decision, for whatever reason, goes off the rails.

    Reply

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