Chapter Summary
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.
Judicial Power In The United States And Its Influence On Political
Society.
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 upon
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 now adopted by the Americans. The judicial
organization of the United States is the institution which a 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 of 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 the 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 be a representative of 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 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. *a
a
[ [The fifth article of the original Constitution of the United States
provides the mode in which amendments of the Constitution may be made.
Amendments must be proposed by two-thirds of both Houses of Congress,
and ratified by the Legislatures of three-fourths of the several
States. Fifteen amendments of the Constitution have been made at
different times since 1789, the most important of which are the
Thirteenth, Fourteenth, and Fifteenth, framed and ratified after the
Civil War. The original Constitution of the United States, followed by
these fifteen amendments, is printed at the end of this edition.
—Translator’s Note, 1874.]]
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.
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 reasons 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 of the judicial power for any length
of time, 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 cogency. The persons to
whose interests 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
is 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, 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 at every turn. 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
suitors, and he cannot refuse to decide it without abdicating the
duties of his post. He performs his functions as a citizen by
fulfilling the precise 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 exact 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 an efficacy which might in some
cases 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 has ever
been devised against the tyranny of political assemblies.
Other Powers Granted To American Judges
The United States all the citizens have the right of indicting public
functionaries before the ordinary tribunals—How they use this
right—Art. 75 of the French Constitution 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 had 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 are
careful not to furnish these grounds of complaint when they are afraid
of being prosecuted.
This does not depend upon the republican form of 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 the 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 has 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
stopped by the authority of the Crown, which enforced compliance with
its absolute and despotic will. It is painful to perceive how much
lower we are sunk than our forefathers, since we allow things to pass
under the color of justice and the sanction of the law which violence
alone could impose upon them.