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ABSTRACT
Few studies of Democracy in America give substantial weight to Tocqueville’s analysis of the United States Constitution in volume 1, part 1, chapter 8. In this article, I argue that Tocqueville’s analysis deserves closer study. Tocqueville provides a nuanced critique of the institutional design of the federal government lauded in The Federalist, expressing grave concerns about the legislative and executive branches, in particular. While Tocqueville praises the judicial branch, he is more concerned than Publius is about the potential vulnerabilities of this branch. Moreover, these faults that Tocqueville finds with the Constitution’s institutional design are rooted in his belief that it is the social state and not the system of checks and balances that should be credited for the success of American democracy. He predicts that if there is a significant change in the social state, then institutional checks and balances will not fill in the gaps as the Framers of the Constitution intended. These insights about the limits of institutional design provide important lessons for contemporary scholars, especially in a moment when political scientists are sounding alarm bells about the waning attachment to fundamental democratic values in democracies around the globe.
Notes
1. Joseph Story to Francis Lieber, May 9, 1840. Cited in Tocqueville, Democracy in America, 105–6, n. 2; and in Pierson, Tocqueville in America, 731. Hereafter page references to Democracy in America are cited in the text.
2. Publius is the pseudonym under which Hamilton, Jay, and Madison published The Federalist. The name is a reference to Publius Valerius, one of the founders of the Roman Republic after the monarchy was overthrown. I have chosen to use the pseudonym rather than individual authors’ names both because Tocqueville does not identify the papers’ individual authors and because whether some key papers were written by Hamilton or Madison is still disputed. See Brown, “Tocqueville and Publius,” Kraynak, “Tocqueville’s Constitutionalism,” and Schleifer, The Making of Tocqueville’s 'Democracy in America.' Of these three scholars only Schleifer considers both The Federalist’s and Story’s potential influence on Tocqueville. Also singular is Schaefer’s comparison of Tocqueville’s and the Antifederalists' views of federalism in “The Antifederalists and Tocqueville on Federalism,” 193–208. While the Antifederalists’ views are beyond the scope of this article, the relative inattention paid to this aspect of Democracy in America is curious given the voluminous scholarship on the work as a whole.
3. Although Tocqueville cites both The Federalist and Story’s Commentaries on the Constitution in volume 1, part 1, chapter 8, this article focuses on the contrasts between Tocqueville’s analysis and the defence of the Constitution provided in the Federalist. However, establishing that Tocqueville’s critiques are rooted in broader themes such as the social state and democratic despotism that are unique to Democracy in America will also serve to discredit the notion that Tocqueville is offering a mere copy of Story’s works.
4. Schleifer, Making of Tocqueville’s Democracy, 117. Hereafter page references are cited in the text.
5. Kraynak, “Tocqueville’s Constitutionalism,” 1175–81. Hereafter page references are cited in the text.
6. Brown, “Tocqueville and Publius,” 46–55. Hereafter page references are cited in the text.
7. See also Zetterbaum, “Alexis de Tocqueville”; Manent, Tocqueville and the Nature of Democracy.
8. Hamilton, Jay, and Madison, The Federalist, 336–410. Tocqueville praises The Federalist earlier in this chapter, calling it “a complete treatise” and offering it up to statesmen in every country for study (108, n. 8).
9. Hamilton, Jay, and Madison, The Federalist, 365–66.
10. This passage where Tocqueville identifies love of equality as the potentially despotic force provides a sharp contrast with The Federalist 1, where Publius contends that people have a zeal for liberty by nature, and this inclination toward more expansive rights is the most common cause of despotism. Hamilton, Jay, and Madison, The Federalist, 5–7. Manent says this discussion of equality is “the heart of the Tocquevillian vision in its richest and most original expression.” Manent, Tocqueville and the Nature of Democracy, 64.
11. Cf. Kraynak, “Tocqueville’s Constitutionalism,” 1187; Brown, “Tocqueville and Publius,” 57–58.
12. Hamilton, Jay, and Madison, The Federalist, 332. Cf. Tocqueville, Democracy in America, 145.
13. See Hamilton, Jay, and Madison, The Federalist 70 through 76. Ibid., 429–94.
14. Ibid., 435.
15. Ibid., 462–68.
16. Cf. Kraynak, “Tocqueville’s Constitutionalism,” 1187–88.
17. Hamilton, Jay, and Madison, The Federalist, 496–97.
18. Kraynak argues that here Tocqueville offers a “subtle reinterpretation” of the Constitution, affording the judiciary a more predominant place than that conceived of by the system of separation of powers. Kraynak, “Tocqueville’s Constitutionalism,” 1190–91.
19. Hamilton, Jay, and Madison, The Federalist, 496.
20. Ibid., 58.
21. See Zuckert, “On Social State,” 3–19.
22. Tocqueville defines mores as “the whole moral and intellectual state of the people” (275), or “the sum of the intellectual and moral dispositions that men bring to the state of society” (292, n. 8).
23. Cf. Maletz, “Tocqueville on Mores,” 1–15.
24. In the preceding chapter, Tocqueville identifies the especially beneficial impact that lawyers and juries have on democracy, crediting the former with offering a counterweight to majority rule and the latter with instilling democratic values in the people (257–64).
25. While some point to The Federalist 55 where Publius remarks that republican governments, above all other types, presuppose the existence of qualities that make men worthy of esteem, as Zuckert explains, this does not mean Publius believed virtue was a precondition for establishing effective republican government. See Zuckert, “The Virtuous Polity,” 123–42. Cf. Hamilton, Jay, and Madison, The Federalist, 359.
26. Foa and Mounk, “The Democratic Disconnect,” 5–17.
27. Ibid., 9–10, 13–14.
28. See, for example, Voeten, “Are People Really Turning Away from Democracy.” Voeten does not find declining attachment to democratic norms when looking at World Values Survey Data over time; rather, he attributes variance in the data to economic concerns. However, he does find among older cohorts in the World Values Survey declining faith in Congress and the executive.
29. Claassen, “Estimating Smooth Country-Year Panels,” 14–18.
30. Miller, “Expert Survey on American Democracy: May 2017.”
31. Miller, “Expert Survey on American Democracy: August-September, 2018.”
32. Pew Research Center, “U.S. Public Becoming Less Religious.”
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Rebecca McCumbers Flavin
Rebecca McCumbers Flavin is a Senior Lecturer in the Department of Political Science at Baylor University, USA.