Guest Essayist: Robert Lowry Clinton


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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 105 – 110 (stopping at the heading “Legislative Powers”) of this edition of Democracy in America.

“…what is new in the history of societies is to see a great people, warned by its legislators that the wheels of government are stopping, turn its regard upon itself without haste and without fear, sound the depth of the ill, contain itself for two entire years in order to discover the remedy at leisure, and when the remedy is pointed out, submit voluntarily to it without its costing humanity one tear or drop of blood.” (Alexis De Tocqueville, Democracy in America).

Alexis De Tocqueville: On the Federal Constitution

After a brilliant introduction expounding the rise of democratic inclinations in Europe during the centuries leading up to the colonization of America, followed by seven chapters exploring socio-economic, geographical, cultural and political conditions on this side of the Atlantic, De Tocqueville turns to a peremptory discussion of the Federal Constitution in chapter 8. Beginning with the history of the Constitution’s emergence out of the earlier Articles of Confederation, De Tocqueville emphasizes the colonists’ strong connections to England before the War of Independence, noting the sharing of religion, language, mores and laws among the Americans and the English. This sharing, however, was not enough to prevent the War of Independence.

During the War and its immediate aftermath, the Americans were governed by the Articles (written in 1778 and adopted in 1781), which repudiated a complete union in favor of a confederation of individual states. De Tocqueville explains that once the War commenced, the principle of union prevailed anyway in the face of a common enemy. However, when the public danger subsided, states resumed their original and entire sovereignty.

The states disunited proved disastrous, exposing the states to dangers both foreign and domestic. Before long, Congress recognized its’ impotence and called for a convention to address the problems and revise the Articles. The “revision” thus produced by the Convention of 1787 turned out to be a complete replacement of the Articles, resulting in our present written Constitution.

De Tocqueville extols the greatness of the American founders in heeding the warning of the dangers of disunity, acting with resolve yet patience in devising a remedy, and accepting the remedy—though controversial—without bloodshed:

“…. what is new in the history of societies is to see a great people, warned by its legislators that the wheels of government are stopping, turn its regard upon itself without haste and without fear, sound the depth of the ill, contain itself for two entire years in order to discover the remedy at leisure, and when the remedy is pointed out, submit voluntarily to it without its costing humanity one tear or drop of blood.”

After a brief comparison of the American and French Revolutions, attending to the most obvious differences between the two wars, De Tocqueville proceeds to a summary of the Federal Constitution, stressing the crucial distinction between the character of the powers granted to the nation and those left to the states. Since the goal of the nation is to respond to “a few great general needs,” its powers are “simple and easy enough to define”. Since the goals of the state are “multiple and complicated,” thus retaining “the common rule,” their prerogatives cannot be so easily defined. De Tocqueville perceives the inevitability of conflict between state and national governments, and suggests that the Supreme Court was created, in part, to avoid having such disputes left to individual state courts.

Relying heavily on The Federalist, De Tocqueville examines more closely some of the intricacies presented by this constitutional system. For example, some national powers are made exclusive, others not. Where national power is not exclusive, states can govern freely, subject to the intervention of courts if they abuse their freedom and “compromise the security of the entire Union.” Thus the Federal Constitution establishes both a republic and a confederation, both federal and confederal.

De Tocqueville closes his section on federal prerogatives by giving some examples suggesting that on some points (e.g., having a single national court to interpret the law and a single legislature to impose taxes on everyone and commercial regulations on the states), the American Union is more centralized in some ways than some European monarchies! Though this seems a bit of a stretch, maybe not. Perhaps De Tocqueville was echoing the earlier fears of the Anti-federalist “Brutus” when he suggests in the one-sentence section that follows (entitled “Federal Powers”) that it might be difficult to confine the national government to the exercise of its delegated powers?

In sum, De Tocqueville’s preliminary remarks on the Constitution are generally sound and most helpful in drawing attention to the most important feature (and problem) of the constitutional order it established: the dual sovereignty embodied in the federal system. And in the last analysis, his cautionary suggestion about the difficulty of preventing future concentration of power in the national government would prove fully justified.

Robert Lowry Clinton is Professor Emeritus at Southern Illinois University Carbondale. He is the author of Marbury v. Madison and Judicial Review, God and Man in the Law: The Foundations of Anglo-American Constitutionalism, and numerous articles in academic and popular publications.

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