Democracy in America — Volume 1Tocqueville, Alexis de
History
Democracy in America — Volume 1
Tocqueville, Alexis de
Democracy -- United States; United States -- Politics and government; United States -- Social conditions
A federal government stands in greater need of the support of judicial
institutions than any other, because it is naturally weak and exposed
to formidable opposition. *c If it were always obliged to resort to
violence in the first instance, it could not fulfil its task. The
Union, therefore, required a national judiciary to enforce the
obedience of the citizens to the laws, and to repeal the attacks which
might be directed against them. The question then remained as to what
tribunals were to exercise these privileges; were they to be entrusted
to the courts of justice which were already organized in every State?
or was it necessary to create federal courts? It may easily be proved
that the Union could not adapt the judicial power of the States to its
wants. The separation of the judiciary from the administrative power of
the State no doubt affects the security of every citizen and the
liberty of all. But it is no less important to the existence of the
nation that these several powers should have the same origin, should
follow the same principles, and act in the same sphere; in a word, that
they should be correlative and homogeneous. No one, I presume, ever
suggested the advantage of trying offences committed in France by a
foreign court of justice, in order to secure the impartiality of the
judges. The Americans form one people in relation to their Federal
Government; but in the bosom of this people divers political bodies
have been allowed to subsist which are dependent on the national
Government in a few points, and independent in all the rest; which have
all a distinct origin, maxims peculiar to themselves, and special means
of carrying on their affairs. To entrust the execution of the laws of
the Union to tribunals instituted by these political bodies would be to
allow foreign judges to preside over the nation. Nay, more; not only is
each State foreign to the Union at large, but it is in perpetual
opposition to the common interests, since whatever authority the Union
loses turns to the advantage of the States. Thus 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.
c
[ 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 command to the
federal executive, and very prudently reserved the right of
non-compliance to themselves.]
Public-domain text, read in full here on John Shaqi.
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