American Institutions and Their Influence

by Alexis de Tocqueville

The greater number of the constitutions of the states assign one year for the duration of the house of representatives, and two years for that of the senate; so that members of the legislative body are constantly and narrowly tied down by the slightest desires of their constituents. The legislators of the Union were of opinion that this excessive dependence of the legislature tended to alter the nature of the main consequences of the representative system, since it vested the source not only of authority, but of government, in the people. They increased the length of the time for which the representatives were returned, in order to give them freer scope for the exercise of their own judgment.

The federal constitution, as well as the constitutions of the different states, divided the legislative body into two branches. But in the states these two branches were composed of the same elements and elected in the same manner. The consequence was that the passions and inclinations of the populace were as rapidly and as energetically represented in one chamber as in the other, and that laws were made with all the characteristics of violence and precipitation. By the federal constitution the two houses originate in like manner in the choice of the people; but the conditions of eligibility and the mode of election were changed, to the end that if, as is the case in certain nations, one branch of the legislature represents the same interests as the other, it may at least represent a superior degree of intelligence and discretion. A mature age was made one of the conditions of the senatorial dignity, and the upper house was chosen by an elected assembly of a limited number of members.

To concentrate the whole social force in the hands of the legislative body is the natural tendency of democracies; for as this is the power which emanates the most directly from the people, it is made to participate most fully in the preponderating authority of the multitude, and it is naturally led to monopolise every species of influence. This concentration is at once prejudicial to a well-conducted administration, and favorable to the despotism of the majority. The legislators of the states frequently yielded to these democratic propensities, which were invariably and courageously resisted by the founders of the Union.

In the states the executive power is vested in the hands of a magistrate, who is apparently placed upon a level with the legislature, but who is in reality nothing more than the blind agent and the passive instrument of its decisions. He can derive no influence from the duration of his functions, which terminate with the revolving year, or from the exercise of prerogatives which can scarcely be said to exist. The legislature can condemn him to inaction by intrusting the execution of the laws to special committees of its own members, and can annul his temporary dignity by depriving him of his salary. The federal constitution vests all the privileges and all the responsibility of the executive power in a single individual. The duration of the presidency is fixed at four years; the salary of the individual who fills that office cannot be altered during the term of his functions; he is protected by a body of official dependents, and armed with a suspensive veto. In short, every effort was made to confer a strong and independent position upon the executive authority, within the limits which had been prescribed to it.

In the constitution of all the states the judicial power is that which remains the most independent of the legislative authority: nevertheless, in all the states the legislature has reserved to itself the right of regulating the emoluments of the judges, a practice which necessarily subjects these magistrates to its immediate influence. In some states the judges are only temporarily appointed, which deprives them of a great portion of their power and their freedom. In others the legislative and judicial powers are entirely confounded: thus the senate of New York, for instance, constitutes in certain cases the superior court of the state. The federal constitution, on the other hand, carefully separates the judicial authority from all external influences: and it provides for the independence of the judges, by declaring that their salary shall not be altered, and that their functions shall be inalienable.

{It is not universally correct, as supposed by the author, that the state legislatures can deprive their governor of his salary at pleasure. In the constitution of New York it is provided, that the governor "shall receive for his services a compensation which shall neither be increased nor diminished during the term for which he shall have been elected;" and similar provisions are believed to exist in other states. Nor is the remark strictly correct, that the federal constitution "provides for the independence of the judges, by declaring that their salary shall not be altered." The provision of the constitution is, that they shall, "at stated times, receive for their services a compensation which shall not be diminished during their continuance in office."—American Editor.}

The practical consequences of these different systems may easily be perceived. An attentive observer will soon remark that the business of the Union is incomparably better conducted than that of any individual state. The conduct of the federal government is more fair and more temperate than that of the states; its designs are more fraught with wisdom, its projects are more durable and more skilfully combined, its measures are put into execution with more vigor and consistency.

I recapitulate the substance of this chapter in a few words:—

The existence of democracies is threatened by two dangers, viz.: the complete subjection of the legislative body to the caprices of the electoral body; and the concentration of all the powers of the government in the legislative authority.

The growth of these evils has been encouraged by the policy of the legislators of the states; but it has been resisted by the legislators of the Union by every means which lay within their control.