“Democracy in America” by Tocqueville (Book 1, Part 2, Chapter 8) (1835)

Chapter 8: What Tempers the Tyranny of the Majority in the United States

  • I – Absence of Administrative Centralization
    • 2 types of centralization – government & administrative
      • Only government centralization in the US
      • If directing power had both, there’s be no freedom because it have the right to command, & the faculty & habit to perform everything
      • US lacks the tools of tyrants
    • Central government only occupied with small number of matters & doesn’t regulate secondary concerns, nor has the desire to do so
      • wouldn’t expand absolute authority of central government
      • majority can’t make all citizens obey in everything & at anytime
    • Central government’s commands carried out by agents but retarded by city & county governments, who divide the popular will so that even with oppressive laws, enforcement is difficult because of decentralization
  • II – The Temper of the American Legal Profession and How it Serves to Counterbalance Democracy
    • Prestige & influence of lawyers are strongest barriers against the faults of Democracy
      • European political movements are led by lawyers either against authorities or on behalf of authorities
        • Extends power of the king or aristocracy
      • Lawyers have habits & tastes for formality, not the revolutionary spirit, & have privilege of intellectual class with aristocratic tastes
    • In free governments, lawyers are in the leading ranks of the parties, along with aristocracy
      • All democratic movements are led by lawyers
      • Aristocracy & lawyers make natural allies but lawyers have the ability to overthrow governments
        • Love ordered life -> authority is the guarantor of order
        • Less afraid of tyranny than arbitrariness
    • Democracy favors political power for lawyers because when the rich, noble & prince are excluded from government, lawyers take over
    • If they gravitate toward aristocracy & prince, the people can bring them back with the promise of powers
      • Lawyers don’t want to overthrow Democracies but to try to guide it with familiar methods
      • One with the people but aristocratic in habits – make natural liaison between the two
        • Aristocratic nature of the legal mind is largest in the UK & US due to common law & legal procedures
      • UK & US lawyers look at what’s been done while French lawyers look at what’s wished to be done.
      • French lawyers more interested in their own opinions than US & UK lawyers who defer to ancestors, tradition & precedents
        • French laws are opaque but clearly available for all to read.
        • US & UK laws require reading precedents & interpreting them like Egyptian priests
    • In UK, lawyers are the cadet branch of aristocracy. They value laws not because they’re good but because they are old, & don’t want to innovate
    • In the US, people distrust the rich but lawyers effectively make up the political & intellectual upper class & only stand to lose from innovation – making them fairly conservative
      • US’s form of aristocracy
    • Lawyers apply a brake to public passions & ideas
      • Judges are lawyers who like the stability of their office, where their knowledge gives them high standing among peers & political power gives him privilege
        • Judges can be removed by the legislature & some are even elected
          • May lead to bad results someday
    • Americans are reluctant to change civil laws
    • Hardly a political question that doesn’t turn into a judicial one
      • Legal language has been introduced into common speech because it infiltrates society
  • III – The Jury in the United States Considered as a Political Institution
    • Judicial Aspect – English started juries when they were barbarians & have grown attached to it, especially with Enlightenment & have spread it all around the world
    • Political institution – a jury is made of citizens selected by chance & given the right to judge. May have aristocratic members but juries have a republican element – real control is in people’s hands, not the rulers’.
      • True sanction of political law is penal sanction & when that’s missing, law loses power.
      • Man who’s judge in a criminal trial is true master of society
        • Jury puts control into people’s hands
        • UK uses aristocratic juries making it an aristocratic society
        • US – any citizen who votes can be a jury member -> sovereignty of the people as universal suffrage.
          • Responsible for execution of laws along with legislature who has the duty of making laws
    • Laws unsteady if unsupported by mores, which are the only tough & durable power in a nation.
      • Criminal & civil juries -> System infiltrates into business of life & has influence on national character by instilling habits of judicial on everyone’s minds & are the best way to prepare a people to be free
      • Spreads respect for court decisions & idea of right throughout all classes, teaching equity in practice & invests each citizen with magisterial office & a duty toward society & share in government
    • Greatest Advantage – effective in shaping a nation’s judgment & increasing its natural rights
      • it is a free school, always open, where the juror learns his own rights & comes in contact with the best educated & most enlightened members with practical lessons in laws
      • Judges & lawyers only aristocratic body to check people’s movements but without physical power & only influence on people’s mind
      • Civil suits – judge acts a disinterested arbiter but the jury is mostly incompetent & useless.

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