American Institutions and Their Influence - Alexis de Tocqueville (i am reading a book .TXT) 📗

it was deliberately held by the supreme court that the provincial charter was a contract within the meaning of the constitution (art. i, sect. 10), and that the amendatory act was utterly void, as impairing the obligation of that charter. The college was deemed, like other colleges of private foundation, to be a private eleemosynary institution, endowed by its charter with a capacity to take property unconnected with the government. Its funds were bestowed upon the faith of the charter, and those funds consisted entirely of private donations. It is true that the uses were in some sense public, that is, for the general benefit, and not for the mere benefit of the corporators; but this did not make the corporation a public corporation. It was a private institution for general charity. It was not distinguishable in principle from a private donation, vested in private trustees, for a public charity, or for a particular purpose of beneficence. And the state itself, if it had bestowed funds upon a charity of the same nature, could not resume those funds.”

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This provision appears to me to be the most serious attack upon the independence of the states. The rights awarded to the federal government for purposes of obvious national importance are definite and easily comprehensible; but those with which this last clause invests it are not either clearly appreciable or accurately defined. For there are vast numbers of political laws which influence the obligations of contracts, which may thus furnish an easy pretext for the aggressions of the central authority.

[The fears of the author respecting the danger to the independence of the states of that provision of the constitution, which gives to the federal courts the authority of deciding when a state law impairs the obligation of a contract, are deemed quite unfounded. The citizens of every state have a deep interest in preserving the obligation of the contracts entered into by them in other states: indeed without such a controlling power, “commerce among several states” could not exist. The existence of this common arbiter is of the last importance to the continuance of the Union itself, for if there were no peaceable means of enforcing the obligations of contracts, independent of all state authority, the states themselves would inevitably come in collision in their efforts to protect their respective citizens from the consequences of the legislation of another state.

M. de Tocqueville’s observation, that the rights with which the clause in question invests the federal government “are not clearly appreciable or accurately defined,” proceeds upon a mistaken view of the clause itself. It relates to the obligation of a contract, and forbids any act by which that obligation is impaired. To American lawyers, this seems to be as precise and definite as any rule can be made by human language. The distinction between the right to the fruits of a contract, and the time, tribunal, and manner, in which that right is to be enforced, seems very palpable. At all events, since the decision of the supreme court of the United States in those cases in which this clause has been discussed, no difficulty is found, practically, in understanding the exact limits of the prohibition.

The next observation of the author, that “there are vast numbers of political laws which influence the obligations of contracts, which may thus furnish an easy pretext for the aggressions of the central authority,” is rather obscure. Is it intended that political laws may be passed by the central authority, influencing the obligation of a contract, and thus the contracts themselves be destroyed? The answer to this would be, that the question would not arise under the clause forbidding laws impairing the obligation of contracts, for that clause applies only to the states and not to the federal government.

If it be intended, that the states may find it necessary to pass political laws, which affect contracts, and that under the pretence of vindicating the obligation of contracts, the central authority may make aggressions on the states and annul their political laws:—the answer is, that the motive to the adoption of the clause was to reach laws of every description, political as well as all others, and that it was the abuse by the states of what may be called political laws, viz.: acts confiscating demands of foreign creditors, that gave rise to the prohibition.

The settled doctrine now is, that states may pass laws in respect to the making of contracts, may prescribe what contracts shall be made, and how, but that they cannot impair any that are already made.

The writer of this note is unwilling to dismiss the subject, without remarking upon what he must think a fundamental error of the author, which is exhibited in the passage commented on, as well as in other passages:—and that is, in supposing the judiciary of the United States, and particularly the supreme court, to be a part of the political federal government, and as the ready instrument to execute its designs upon the state authorities. Although the judges are in form commissioned by the United States, yet, in fact, they are appointed by the delegates of the state, in the senate of the United States, concurrently with, and acting upon, the nomination of the president. If the legislature of each state in the Union were to elect a judge of the supreme court, he would not be less a political officer of the United States than he now is. In truth, the judiciary have no political duties to perform; they are arbiters chosen by the federal and state governments, jointly, and when appointed, as independent of the one as of the other. They cannot be removed without the consent of the states represented in the senate, and they can be removed without the consent of the president, and against his wishes. Such is the theory of the constitution. And it has been felt practically, in the rejection by the senate of persons nominated as judges, by a president of the same political party with a majority of the senators. Two instances of this kind occurred during the administration of Mr. Jefferson.

If it be alleged that they are exposed to the influence of the executive of the United States, by the expectation of offices in his gift, the answer is, that judges of state courts are equally exposed to the same influence—that all state officers, from the highest to the lowest, are in the same predicament; and that this circumstance does not, therefore, deprive them of the character of impartial and independent arbiters.

These observations receive confirmation from every recent decision of the supreme court of the United States, in which certain laws of individual states have been sustained, in cases where, to say the least, it was very questionable whether they did not infringe the provisions of the constitution, and where a disposition to construe those previsions broadly and extensively, would have found very plausible grounds to indulge itself in annulling the state laws referred to. See the cases of City of New York vs. Miln, 11_th Peters_, 103; Briscor vs. the Bank of the Commonwealth of Kentucky, ib., 257; Charles River Bridge vs. Warren Bridge., ib._, 420.—_American Ed._]

* * * * * PROCEDURE OF THE FEDERAL COURTS.

Natural Weakness of the judiciary Power in Confederations.—Legislators ought to strive as much as possible to bring private Individuals, and not States, before the federal Courts.—How the Americans have succeeded in this.—Direct Prosecutions of private Individuals in the federal Courts.—Indirect Prosecution in the States which violate the Laws of the Union.—The Decrees of the Supreme Court enervate but do not destroy the provincial Laws.

I have shown what the privileges of the federal courts are, and it is no less important to point out the manner in which they are exercised. The irresistible authority of justice in countries in which the sovereignty is undivided, is derived from the fact that the tribunals of those countries represent the entire nation at issue with the individual against whom their decree is directed; and the idea of power is thus introduced to corroborate the idea of right. But this is not always the case in countries in which the sovereignty is divided: in them the judicial power is more frequently opposed to a fraction of the nation than to an isolated individual, and its moral authority and physical strength are consequently diminished. In federal states the power of the judge is naturally decreased, and that of the justiciable parties is augmented. The aim of the legislator in confederate states ought therefore to be, to render the position of the courts of justice analogous to that which they occupy in countries where the sovereignty is undivided; in other words, his efforts ought constantly to tend to maintain the judicial power of the confederation as the representative of the nation, and the justiciable party as the representative of an individual interest.

Every government, whatever may be its constitution, requires the means of constraining its subjects to discharge their obligations, and of protecting its privileges from their assaults. As far as the direct action of the government on the community is concerned, the constitution of the United States contrived, by a master-stroke of policy, that the federal courts, acting in the name of the laws, should only take cognizance of parties in an individual capacity. For, as it had been declared that the Union consisted of one and the same people within the limits laid down by the constitution, the inference was that the government created by this constitution, and acting within these limits, was invested with all the privileges of a national government, one of the principal of which is the right of transmitting its injunctions directly to the private citizen.

When, for instance, the Union votes an impost, it does not apply to the states for the levying of it, but to every American citizen, in proportion to his assessment. The supreme court, which is empowered to enforce the execution of this law of the Union, exerts its influence not upon a refractory state, but upon the private taxpayer; and, like the judicial power of other nations, it is opposed to the person of an individual. It is to be observed that the Union chose its own antagonist; and as that antagonist is feeble, he is naturally worsted.

But the difficulty increases when the proceedings are not brought forward by but against the Union. The constitution recognizes the legislative power of the state; and a law so enacted may impair the privileges of the Union, in which case a collision is unavoidable between that body and the state which had passed the law; and it only remains to select the least dangerous remedy, which is very clearly deducible from the general principles I have before established.[Footnote: See chapter vi., on judicial power in America.

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It may be conceived that, in the case under consideration, the Union might have sued the state before a federal court, which would have annulled the act; and by this means it would have adopted a natural course of proceeding: but the judicial power would have been placed in open hostility to the state, and it was desirable to avoid this predicament as much as possible. The Americans hold that it is nearly impossible that a new law should not impair the interests of some private individuals by its provisions: these private interests are assumed by the American legislators as the ground of attack against such measures as may be prejudicial to the