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By Root 269 0

histories and experiences are far different in that they include life under tyrannies. In America, the government is innocuous and dispersed—that is, society does not evolve around the government. “Nothing is more striking to a European traveler in the United States than the absence of what we term the government, or the administration. Written laws exist in America, and one sees the daily execution of them; but although everything moves regularly, the mover can nowhere be discovered. The hand that directs the social machine is invisible. Nevertheless, as all persons must have recourse to certain grammatical forms, which are the foundation of human language, in order to express their thoughts; so all communities are obliged to secure their existence by submitting to a certain amount of authority, without which they fall into anarchy. This authority may be distributed in several ways, but it must always exist somewhere.…” (I, 70) “The administrative power in the United States presents nothing either centralized or hierarchical in its constitution; this accounts for its passing unperceived. The power exists, but its representative is nowhere to be seen” (I, 71).

Tocqueville observed that the shape of the American government, especially and prominently its decentralization of governmental authority, was designed with forethought and intended to preserve and secure the existing American society. “Division of authority between the Federal government and the states—The government of the states is the rule, the Federal government the exception.… The obligation and the claims of the Federal government were simple and easily definable because the Union had been formed with the express purpose of meeting certain great general wants; but the claims and obligations of the individual states, on the other hand, were complicated and various because their government had penetrated into all the details of social life. The attributes of the Federal government were therefore carefully defined, and all that was not included among them was declared to remain to the governments of the several states. Thus the government of the states remained the rule, and that of the confederation was the exception” (I, 114–15).

Notwithstanding the authority of federal courts to decide disputes between the federal and state governments, Tocqueville concluded that federal judges were well aware of the limits placed on the federal government vis-à-vis the states. “It is true, the Constitution had laid down the precise limits of the Federal supremacy; but whenever this supremacy is contested by one of the states, a Federal tribunal decides the question. Nevertheless, the dangers with which the independence of the states is threatened by this mode of proceeding are less serious than they appear to be.… [I]n America the real power is vested in the states far more than the Federal government” (I, 143). Therefore, Tocqueville argued, federal judges would refrain from abusing their public trust by remaining faithful to the original intent of the Framers and the federal government’s constitutional limits. He wrote, “The Federal judges are conscious of the relative weakness of the power in whose name they act; and they are more inclined to abandon the right of jurisdiction in cases where the law gives it to them than to assert a privilege to which they have no legal claim” (I, 143). The point being that while federal judges are of the federal government, they are not detached from the character of American society, the history of the founding, and the purposes of the Constitution. Hence, if federal judges are virtuous, they are not a threat to the society for they will not use their positions to aggrandize the federal government and their own roles. In essence, Tocqueville is restating Montesquieu’s case respecting representative government. Montesquieu wrote that “in a popular state there must be an additional spring, which is VIRTUE.… [I]n a popular government when the laws have ceased to be executed, as this can come only from the corruption of the republic, the