Guest Essayist: Christopher C. Burkett


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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 110 (starting at the “Legislative Powers heading”) – 113 (stopping at the “On the Executive Power Heading”) of this edition of Democracy in America.

Alexis De Tocqueville: On The Federal Constitution

“In this state of things, what happened was what almost always happens when interests are opposed to reasonings: they bent the rules of logic.” (Alexis De Tocqueville, Democracy in America).

As De Tocqueville notes, the Constitution of the United States is federal in nature. This makes it quite unusual – in fact, unique – among all historical constitutions in Europe. This is so, in part, because Americans have discovered a new understanding of what “federal” means, which in turn requires De Tocqueville to carefully point out to his European readers some subtle characteristics of the Constitution.

De Tocqueville begins to explain the federal nature of the Constitution of the United States by describing what he calls “Legislative Powers.” By this, De Tocqueville means to show how the bicameral Congress is composed of two legislative bodies – a House of Representatives and a Senate – and, though the concurrence of both is needed to pass laws, each has some unique characteristics, responsibilities, and powers. This difference between the two houses of Congress arises from the compound nature of the American political union: it is intended, by the Federal Constitution, to be a union of the whole American people under a national government with national laws, while each of the member states simultaneously retains its own government, laws, and powers.

This compound or “federal” nature of the American Union and Constitution is an important factor in shaping American democracy, but was established legally in the new Constitution as a way to reconcile the natural tension that would exist between a national government and a state government. De Tocqueville reveals how this new kind of federalism came into being, beginning with the first attempts at establishing a government for the Union during the American Revolution. In the years when the Articles of Confederation were legally in effect (1781-1787), disagreements rose to the surface in the Confederation Congress over whether the Union of the American states comprised a real nation or a mere treaty-based agreement between sovereign and independent nation-states. As De Tocqueville writes:

“[T]wo opposed interests were presented to each other. Those two interests had given birth to two opinions. Some wanted to make the Union a league of independent states, a kind of congress, where the representatives of distinct peoples would come to discuss certain points of common interest. Others wanted to unite all the inhabitants of the former colonies into one and the same people.”

These were the prevailing opinions when the Confederation Congress authorized a Federal Convention to meet in Philadelphia in 1787 to discuss amendments to the Articles of Confederation. Delegates such as David Brearly and Robert Paterson of New Jersey, for example, strongly defended the former point of view that, in order to protect the various interests of the states, the Union should be more like a treaty-based league with a very limited general congress. Others, such as James Madison of Virginia, argued for the creation of a national union under a strengthened national government with real legislative powers. From the beginning of the debates at the Convention, when delegates agreed to create a bicameral legislature it became clear that this question would be resolved primarily through the composition of the two bodies of Congress (the House of Representatives and the Senate). Brearly and Paterson, among others, insisted that each state be equally represented in both houses, and that members of each house be selected by the state legislatures, ensuring that the interests of the states would be sufficiently expressed, supported, and protected in Congress. Madison and his supporters, on the other hand, insisted on creating a national government in which each state would be represented proportionally (based, for example, on population) in both houses, and in which state legislatures would select members in either house of Congress.

Ultimately delegates agreed to compromise on these questions (as proposed in part by Roger Sherman and Oliver Ellsworth of Connecticut): the states would be proportionally represented in the House of Representatives by members elected directly by the people; and the states would be represented equally in the Senate by members chosen by the state legislatures. By this compromise the framers established a Constitution that was “partly national, partly federal.” De Tocqueville writes:

“In this state of things, what happened was what almost always happens when interests are opposed to reasonings: they bent the rules of logic. The legislators adopted a middle term that reconciled by force two theoretically irreconcilable systems. The principle of the independence of the states triumphed in the formation of the Senate; the dogma of national sovereignty, in the composition of the House of Representatives.”

With careful insight, De Tocqueville reveals the uniquely complex nature of the Constitution of the United States in the composition of Congress, as an important factor of American democracy.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

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3 replies
  1. Harry Stumpf
    Harry Stumpf says:

    I like the logic of having the Senate represent the states equally. And it makes sense that senators be chosen by the state legislatures. That logic is subverted by the present system, which chooses senators by popular vote.

    Reply
    • Cathy Gillespie
      Cathy Gillespie says:

      Hi Jim – Thank you for your comment and participation! You are the winner of this week’s free copy of De Tocqueville’s Democracy in America book drawing! Please email us your preferred mailing address to orders@constitutingamerica.org and we will send you your book! We are glad you are enjoying our study:
      The Genius of America: A Journey Into Our Republic
      A Study on Alexis de Tocqueville’s Democracy In America

      Please keep reading and commenting! We value your input!

      Reply

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