restricted access Chapter 8. Of the Federal Constitution
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186 s4s4s4s4s4 c h a p t e r 8 Of the Federal Constitution Until now I have considered each state as forming a complete whole, and I have shown the different mechanisms that the people put inmotionthere, as well as the means of action that they use. But all these states that I have envisaged as independent are, in certain cases, forced to obey a supreme authority, which is that of the Union. The time has come to examine the portion of sovereignty that has been conceded to the Union, and to cast a rapid glance over the federal constitution.1 Historical Background of the Federal Constitutiona Origin of the first Union.—Its weakness.—Congress summons the constituent power.—Interval of two years that 1. See the text of the federal Constitution. [In Appendix in the first editions (ed.)] a. In the margin: “⫽Where to find the outline of the first federation? “Bad result of the first federation. See Federalist, p. 60 [No. 15 (ed.)].⫽” The Federalist is, without any doubt, the work that Tocqueville cites most often. Its decisive influence on the drafting of this chapter must be recognized, even if such an influence on the whole book is difficult to define and remains to be determined. When Tocqueville reads the Federalist, he certainly has in mind, and at hand, Montesquieu and Rousseau. He rediscovers many of their ideas in the American work. An initial examination of the citations taken from the work seems to indicate that,aboveall,Tocqueville found in it a confirmation of his own ideas. This does not mean, as has often been asserted, that he intentionally omitted citations of the text in other chapters. If undeniable similarities exist between the American text and the Democracy, they demonstrate the result of a shared origin of ideas between the two texts more than a direct influence of the first book on the second. Another important work concerning information on the political organization of the United States is the commentaries on the Constitution by Justice Joseph Story. In a letter to Francis Lieber of May 9, 1840, Story, apparently federal constitution 187 passes between this moment and that when the new Constitution is promulgated. [⫽I am not among those who profess a blind faith in legal prescriptions and who think that it is sufficient to change the laws of a people in order to modify easily their social and political state. Laws act only in two ways, either by their long duration, when a power superior to society manages to impose them over many years, or by their perfect harmony with the mores, habits and civilization of the people. In this last case, the laws are only the conspicuous and legal manifestation of a preexistent fact.b But I admit that when laws are found to be in harmony with the needs {the social state} of a country, its mores and its habits, their effect is often something of a miracle. unable to recognize the significance of the Democracy, judges that Lieber’s knowledge of the American political system is much superior to that of Tocqueville; according to Story, Tocqueville simply took his ideas from the Federalist and from Story’s own book on the American Constitution (Life and Letters of Joseph Story, Boston: Charles C. Little and James Brown, 1851, vol. II, p. 330). John W. Henry Canoll (“The Authorship of Democracy in America,” Historical Magazine 8, no. 9 (1864): 332–33), who reports the words of Mgr. Alexander Vattemare, asserts that the American author who had a direct influence on Tocqueville’s thought isJohnC.Spencer.AccordingtoCanoll,Tocqueville would have shown Spencer a plan of his work; the latter would have reviewed and criticized it and, after numerous interviews, would have given the canvas of the Democracy to the author. b. In the margin: ⫽The government of the United States is not truly speaking a federal government, it is a national government whose powers are limited. Important./ Mixture of national and federal in the constitution. See Federalist, p. 166 [No. 28 (ed.)]./ The Union enters most profoundly into the government of the United States by the right to invalidate laws that are contrary to vested rights. Note that it is the federal judicial power alone that acts in this case./ [To the side: I am not among those who believe that there is a force in the laws that commands obedience to such an extent that all the present and all the future of a people...