JUDICIAL POWER IN THE UNITED STATES, AND ITS INFLUENCE ON POLITICAL
SOCIETY.
The Anglo-Americans have retained the Characteristics of judicial Power
which are common to all Nations.--They have, however, made it a
powerful political Organ.--How.--In what the judicial System of the
Anglo-Americans differs from that of all other Nations.--Why
the American Judges have the right of declaring the Laws to be
Unconstitutional.--How they use this Right.--Precautions taken by the
Legislator to prevent its abuse.
I have thought it essential to devote a separate chapter to the judicial
authorities of the United States, lest their great political importance
should be lessened in the reader's eyes by a merely incidental mention
of them. Confederations have existed in other countries beside America;
and republics have not been established on the shores of the New World
alone: the representative system of government has been adopted in
several states of Europe; but I am not aware that any nation of the
globe has hitherto organized a judicial power on the principle adopted
by the Americans. The judicial organization of the United States is
the institution which the stranger has the greatest difficulty in
understanding. He hears the authority of a judge invoked in the
political occurrences of every day, and he naturally concludes that
in the United States the judges are important political functionaries:
nevertheless, when he examines the nature of the tribunals, they offer
nothing which is contrary to the usual habits and privileges of those
bodies; and the magistrates seem to him to interfere in public affairs
by chance, but by a chance which recurs every day.
When the Parliament of Paris remonstrated, or refused to enregister an
edict, or when it summoned a functionary accused of malversation to its
bar, its political influence as a judicial body was clearly visible; but
nothing of the kind is to be seen in the United States. The Americans
have retained all the ordinary characteristics of judicial authority,
and have carefully restricted its action to the ordinary circle of its
functions.
The first characteristic of judicial power in all nations is the duty
of arbitration. But rights must be contested in order to warrant the
interference of a tribunal; and an action must be brought to obtain the
decision of a judge. As long, therefore, as a law is uncontested, the
judicial authority is not called upon to discuss it, and it may exist
without being perceived. When a judge in a given case attacks a law
relating to that case, he extends the circle of his customary duties,
without, however, stepping beyond it; since he is in some measure
obliged to decide upon the law, in order to decide the case. But if
he pronounces upon a law without resting upon a case, he clearly steps
beyond his sphere, and invades that of the legislative authority.
The second characteristic of judicial power is, that it pronounces on
special cases, and not upon general principles. If a judge, in deciding
a particular point, destroys a general principle, by passing a judgment
which tends to reject all the inferences from that principle, and
consequently to annul it, he remains within the ordinary limits of his
functions. But if he directly attacks a general principle without having
a particular case in view, he leaves the circle in which all nations
have agreed to confine his authority; he assumes a more important, and
perhaps a more useful influence than that of the magistrate, but he
ceases to represent the judicial power.
The third characteristic of the judicial power is its inability to act
unless it is appealed to, or until it has taken cognizance of an
affair. This characteristic is less general than the other two; but
notwithstanding the exceptions, I think it may be regarded as essential.
The judicial power is by its nature devoid of action; it must be put in
motion in order to produce a result. When it is called upon to repress a
crime, it punishes the criminal; when a wrong is to be redressed, it is
ready to redress it; when an act requires interpretation, it is prepared
to interpret it; but it does not pursue criminals, hunt out wrongs,
or examine into evidence of its own accord. A judicial functionary who
should open proceedings, and usurp the censorship of the laws, would in
some measure do violence to the passive nature of his authority.
The Americans have retained these three distinguishing characteristics
of the judicial power; an American judge can only pronounce a decision
when litigation has arisen, he is only conversant with special cases,
and he cannot act until the cause has been duly brought before the
court. His position is therefore perfectly similar to that of the
magistrate of other nations; and he is nevertheless invested with
immense political power. If the sphere of his authority and his means of
action are the same as those of other judges, it may be asked whence he
derives a power which they do not possess. The cause of this difference
lies in the simple fact that the Americans have acknowledged the right
of the judges to found their decisions on the constitution, rather than
on the laws. In other words, they have left them at liberty not to apply
such laws as may appear to them to be unconstitutional.
I am aware that a similar right has been claimed--but claimed in
vain--by courts of justice in other countries; but in America it is
recognized by all the authorities; and not a party, nor so much as an
individual, is found to contest it. This fact can only be explained by
the principles of the American constitution. In France the constitution
is (or at least is supposed to be) immutable; and the received theory is
that no power has the right of changing any part of it. In England, the
parliament has an acknowledged right to modify the constitution: as,
therefore, the constitution may undergo perpetual changes, it does
not in reality exist; the parliament is at once a legislative and a
constituent assembly. The political theories of America are more simple
and more rational. An American constitution is not supposed to be
immutable as in France; nor is it susceptible of modification by the
ordinary powers of society as in England. It constitutes a detached
whole, which, as it represents the determination of the whole people, is
no less binding on the legislator than on the private citizen, but
which may be altered by the will of the people in predetermined cases,
according to established rules. In America the constitution may,
therefore, vary, but as long as it exists it is the origin of all
authority, and the sole vehicle of the predominating force.[114]
It is easy to perceive in what manner these differences must act
upon the position and the rights of the judicial bodies in the three
countries I have cited. If in France the tribunals were authorized
to disobey the laws on the ground of their being opposed to the
constitution, the supreme power would in fact be placed in their hands,
since they alone would have the right of interpreting a constitution,
the clauses of which can be modified by no authority. They would,
therefore, take the place of the nation, and exercise as absolute a sway
over society as the inherent weakness of judicial power would allow them
to do. Undoubtedly, as the French judges are incompetent to declare a
law to be unconstitutional, the power of changing the constitution is
indirectly given to the legislative body, since no legal barrier would
oppose the alterations which it might prescribe. But it is better to
grant the power of changing the constitution of the people to men who
represent (however imperfectly) the will of the people, than to men who
represent no one but themselves.
It would be still more unreasonable to invest the English judges with
the right of resisting the decisions of the legislative body, since
the parliament which makes the laws also makes the constitution; and
consequently a law emanating from the three powers of the state can in
no case be unconstitutional. But neither of these remarks is applicable
to America.[115]
In the United States the constitution governs the legislator as much as
the private citizen: as it is the first of laws, it cannot be modified
by a law; and it is therefore just that the tribunals should obey the
constitution in preference to any law. This condition is essential to
the power of the judicature; for to select that legal obligation
by which he is most strictly bound, is the natural right of every
magistrate.
In France the constitution is also the first of laws, and the judges
have the same right to take it as the ground of their decisions; but
were they to exercise this right, they must perforce encroach on rights
more sacred than their own, namely, on those of society, in whose name
they are acting. In this case the state motive clearly prevails over the
motives of an individual. In America, where the nation can always reduce
its magistrates to obedience by changing its constitution, no danger of
this kind is to be feared. Upon this point therefore the political and
the logical reason agree, and the people as well as the judges preserve
their privileges.
Whenever a law which the judge holds to be unconstitutional is argued
in a tribunal of the United States, he may refuse to admit it as a rule;
this power is the only one which is peculiar to the American magistrate,
but it gives rise to immense political influence. Few laws can escape
the searching analysis; for there are few which are not prejudicial to
some private interest or other, and none which may not be brought before
a court of justice by the choice of parties, or by the necessity of the
case. But from the time that a judge has refused to apply any given law
in a case, that law loses a portion of its moral sanction. The persons
to whose interest it is prejudicial, learn that means exist of evading
its authority; and similar suits are multiplied, until it becomes
powerless. One of two alternatives must then be resorted to: the people
must alter the constitution, or the legislature must repeal the law.
The political power which the Americans have intrusted to their courts
of justice is therefore immense; but the evils of this power are
considerably diminished, by the obligation which has been imposed of
attacking the laws through the courts of justice alone. If the judge
had been empowered to contest the laws on the ground of theoretical
generalities; if he had been enabled to open an attack or to pass a
censure on the legislator, he would have played a prominent part in the
political sphere; and as the champion or the antagonist of a party, he
would have arrayed the hostile passions of the nation in the conflict.
But when a judge contests a law, applied to some particular case in an
obscure proceeding, the importance of his attack is concealed from the
public gaze; his decision bears upon the interest of an individual, and
if the law is slighted, it is only collaterally. Moreover, although it
be censured, it is not abolished; its moral force may be diminished, but
its cogency is by no means suspended; and its final destruction can only
be accomplished by the reiterated attacks of judicial functionaries. It
will readily be understood that by connecting the censorship of the
laws with the private interests of members of the community, and by
intimately uniting the prosecution of the law with the prosecution of
an individual, the legislation is protected from wanton assailants, and
from the daily aggressions of party spirit. The errors of the legislator
are exposed whenever their evil consequences are most felt; and it is
always a positive and appreciable fact which serves as the basis of a
prosecution.
I am inclined to believe this practice of the American courts to be at
once the most favorable to liberty as well as to public order. If the
judge could only attack the legislator openly and directly, he would
sometimes be afraid to oppose any resistance to his will; and at other
moments party spirit might encourage him to brave it every day. The laws
would consequently be attacked when the power from which they emanate
is weak, and obeyed when it is strong. That is to say, when it would be
useful to respect them, they would be contested; and when it would be
easy to convert them into an instrument of oppression, they would be
respected. But the American judge is brought into the political arena
independently of his own will. He only judges the law because he is
obliged to judge a case. The political question which he is called upon
to resolve is connected with the interest of the parties, and he cannot
refuse to decide it without abdicating the duties of his post. He
performs his functions as a citizen by fulfilling the strict duties
which belong to his profession as a magistrate. It is true that upon
this system the judicial censorship which is exercised by the courts of
justice over the legislation cannot extend to all laws indiscriminately,
inasmuch as some of them can never give rise to that precise species
of contestation which is termed a lawsuit; and even when such a
contestation is possible, it may happen that no one cares to bring
it before a court of justice. The Americans have often felt this
disadvantage, but they have left the remedy incomplete, lest they should
give it efficacy which in some cases might prove dangerous. Within
these limits, the power vested in the American courts of justice of
pronouncing a statute to be unconstitutional, forms one of the most
powerful barriers which have ever been devised against the tyranny of
political assemblies.
* * * * *
OTHER POWERS GRANTED TO THE AMERICAN JUDGES.
In the United States all the Citizens have the Right of indicting the
public Functionaries before the ordinary Tribunals.--How they use this
Right.--Art. 75 of the An VIII.--The Americans and the English cannot
understand the Purport of this Clause.
It is perfectly natural that in a free country like America all the
citizens should have the right of indicting public functionaries before
the ordinary tribunals, and that all the judges should have the power of
punishing public offences. The right granted to the courts of justice,
of judging the agents of the executive government, when they have
violated the laws, is so natural a one that it cannot be looked upon as
an extraordinary privilege. Nor do the springs of government appear to
me to be weakened in the United States by the custom which renders all
public officers responsible to the judges of the land. The Americans
seem, on the contrary, to have increased by this means that respect
which is due to the authorities, and at the same time to have rendered
those who are in power more scrupulous of offending public opinion. I
was struck by the small number of political trials which occur in
the United States; but I have no difficulty in accounting for this
circumstance. A lawsuit, of whatever nature it may be, is always a
difficult and expensive undertaking. It is easy to attack a public man
in a journal, but the motives which can warrant an action at law must be
serious. A solid ground of complaint must therefore exist, to induce an
individual to prosecute a public officer, and public officers careful
not to furnish these grounds of complaint, when they are afraid of being
prosecuted.
This does not depend upon the republican form of the American
institutions, for the same facts present themselves in England. These
two nations do not regard the impeachment of the principal officers of
state as a sufficient guarantee of their independence. But they hold
that the right of minor prosecutions, which are within the reach of the
whole community, is a better pledge of freedom than those great judicial
actions which are rarely employed until it is too late.
In the middle ages, when it was very difficult to overtake offenders,
the judges inflicted the most dreadful tortures on the few who were
arrested, which by no means diminished the number of crimes. It has
since been discovered that when justice is more certain and more mild,
it is at the same time more efficacious. The English and the Americans
hold that tyranny and oppression are to be treated like any other crime,
by lessening the penalty and facilitating conviction.
In the year VIII. of the French republic, a constitution was drawn up in
which the following clause was introduced: "Art. 75. All the agents of
the government below the rank of ministers can only be prosecuted for
offences relating to their several functions by virtue of a decree of
the conseil d'etat; in which case the prosecution takes place before
the ordinary tribunals." This clause survived the "Constitution de l'an
VIII.," and it is still maintained in spite of the just complaints of
the nation. I have always found the utmost difficulty in explaining its
meaning to Englishmen or Americans. They were at once led to conclude
that the conseil d'etat in France was a great tribunal, established in
the centre of the kingdom, which exercised a preliminary and somewhat
tyrannical jurisdiction in all political causes. But when I told them
that the conseil d'etat was not a judicial body, in the common sense of
the term, but an administrative council composed of men dependent on
the crown--so that the king, after having ordered one of his servants,
called a prefect, to commit an injustice, has the power of commanding
another of his servants, called a councillor of state, to prevent the
former from being punished--when I demonstrated to them that the citizen
who had been injured by the order of the sovereign is obliged to solicit
from the sovereign permission to obtain redress, they refused to credit
so flagrant an abuse, and were tempted to accuse me of falsehood or
of ignorance. It frequently happened before the revolution that a
parliament issued a warrant against a public officer who had committed
an offence; and sometimes the proceedings were annulled by the authority
of the crown. Despotism then displayed itself openly, and obedience was
extorted by force. We have then retrograded from the point which our
forefathers had reached, since we allow things to pass under the color
of justice and the sanction of the law, which violence alone could
impose upon them.
* * * * *
Notes:
[114] See Appendix L.
[115] See Appendix M.