Lecture #5-- Law & Social Policy 2-13-12: Tocqueville on Social Issues

2-13-12

Lecture # 5: Law & Social Policy: Social and Political Issues Raised by Tocqueville

1. Reading 5 minutes (516 words)
On Lawyers (pp. 308, 309, 310, 311, 313, 314, 315)
Reading by Stephanie Carr and fellow students--

Page 308:  begin at first full paragraph with words...."Men who have made the law their special study...." and continue with the next 3 paragraphs ending in the 4th ".... you may be certain that lawyers will be very active agents of revolution.”

Page 309:  begin at first full paragraph "I am saying that in a society where
lawyers unquestionable hold high rank....." and continue reading all paragraphs to and including page 310 thru the first full paragraph on page 311    ending with the words ".....the influence of lawyers in its affairs did not grow in proportion to the power of the people."

Page 313: begin with the words "In America, there are neither nobles nor men of letters and the people distrust....." through the paragraph that begins:  "The law courts are the most obvious institutions used by the legal fraternity to influence democracy."

Page 314: begin in the middle of the page with the paragraph: " Since lawyers form the only enlightened class not distrusted..."  read the entire paragraph ending with the words..."if the choice is left to them."

Page 314: begin: "There is hardly a political question in the United States
which does not sooner or later turn into a judicial one...." and continue on
through the next and final paragraph...."Lawyers in the United States constitute a power..... 

In America there are neither nobles nor men of letters, and the people distrust the wealthy; lawyers therefore form the political upper class, and the most intellectual circle of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not composed of the rich, who are united together by no common tie, but that it occupies the judicial bench and the bar. P 313
“The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it.
The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.


[And here are a few more nuggets:]

Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other} men, are governed by their private interests, and especially by the interests of the moment.
The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude. P 308 422 words
2. Summary of Class #4: The Power of the Presidency (in 250 Words or Less) (your professor flunked this requirement this time; 600 words +++++). 6 minutes

The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV

In the first class we examined the Power of the People; in the second, the Power of the Judiciary; the third treated the Power of the Legislature and in the fourth the Power of the Executive Branch.


Summary of Class #4


The people elect the president for four years; the king is a perpetual and hereditary prince. The president is amenable to personal punishment and disgrace while the king is sacred, immune and inviolable. The president has a qualified negative upon legislative acts, the king has and absolute negative. The president has the right to command the military and naval forces but the king has the additional rights to declare war and raise and regulate armies and fleets by his own authority. The king possesses the right to make treaties without concurrence by any other authority; the president has a concurrent power to do so. The king can confer personal and commercial privileges the president cannot. The king can coin money and regulate commerce, declare embargoes, regulate weights and measures, and prohibit circulation of foreign coin. The president has NO spiritual jurisdiction; the king is head of the church. 151 words.


Tocqueville is more worried about the presidency being politicized than kingship (although he worries about a future tyranny of the executive branch) (perhaps if, as and when certain external limitations on presidential power are lifted (geography, lack of enemies)). The extended reading with which our class began (from pages 158-161, Tocqueville “Re-election of the President’) praises the founders of the country for drafting a constitution that balances the power of the executive branch but then makes a jarring condemnation:

“But when they introduced the principal of re-election, they in part destroyed their work’ (p. 161). “Once the president can stand for re-election…he is but a docile tool in the hands of the majority.’ (P.161).

Tocqueville felt it is impossible for a president to observe the normal course of affairs when his own re-election dominates his thoughts and official actions and policies. And while the founders intended that the president guide the people and the legislature, he instead follows them. 159

Article II of the constitution provides that the executive Power shall be vested in a president. The Article then enumerates specific powers of the presidency. Early debate centered on the question as to whether the president was granted certain inherent powers.
Social policy animates decisions and actions of the judiciary, the presidency and congress through the commerce clause (and the general spending power and the 14th Amendment), through judicial review based on the constitution (and the evolving standard of decency test of the 8th Amendment) and through the inherent powers of the presidency that are formed and forged in the seething cauldron of social, political and economic change.

Limitations imposed on the president by circumstance

Certain practical limitations on the power of the presidency are due to external conditions. These interest us today because the limitations he noted no longer exist. They all deal with the president’s war powers and foreign policy prerogatives. For example, while the president is commander in chief, the army had only 6000 men at the time Tocqueville wrote and the navy had only a few vessels. The United States had no neighbors and was protected by the vast ocean; it had no enemies; this shows, Tocqueville wrote, “…that the practice of government must not be judged by theory.” (P 147). He noted that the president enjoyed almost ‘royal prerogatives which he has no chance of exercising.” (P.147). “The laws enable him to be strong; circumstances keep him weak” (P. 147). 600 words



3. Lecture #5: Social Issues Raised by Tocqueville. DV: words. 5 minutes

Tocqueville’s book aimed to study American laws (p 355). He begins with the source of those laws: social conditions. A social creed and code of equality brought by the Pilgrims furnished the ethos of the country that was divided into two classes: the gold seekers of the south and the enterprising people of the north. America was a land of wonders, a new land with new men that needed a new political science for the new world that was being born. For the first four classes we studied Tocqueville observations on HOW the new system worked: separation and balance of powers among the people, the judiciary, the legislature and the executive branch. In this our fifth class we look into the ‘sociology’ of America rather than its governance. Last class we considered:
Class # 4 Tocqueville commentary on

(1) Fear of legislative power (181, 288, 304-305), ‘justice is the end of government’; Federalist 51; (2) tyranny of the majority (68, 71, 181, 223-224, 287-305, 603,747), (MOLLY: What moderates the tyranny of the majority? P 305-322, Chapter 8, Part 2); (3) Nicole Maddox: DEMOCRACY 181 (main threats to), 294 (main complaint against), MAJORITY RULE 297 (effect on opinions), 290, 292 299 (no freedom of thought in America), 747 (public approval) and finally (12) the main objective of legislation and legislator , new solutions for new disorders (49, 817).

Class # 5 we consider Tocqueville commentary on

(3) war (755-757), (4) the law of property and inheritance (60-64, 840-841), (5) a free press (213, 222, 811-812), (6) judicial power (122, 314, 812), (7) love of money (41,64, 616-618, 627-28, 713, 721-722, 788), (8) how a new aristocracy may emerge in America (645-648), (9) lawyers (…lawyers form the only enlightened class not distrusted by the people. 314, 307-315), (10) wages (675-677) and work (639), (11) women (687, 692, 696, 700), (13) the source of laws (49, 57, 58, 71, 319, 335, 357, 362), (14) freedom and equality (583-587), (15) individualism (583-586-91, 683, 780), (16) religion (54-56, 336-352, 636), (17) public education American style (53-54, 65 [job preparation], 352-357, 537), (18) the social theory of the United States (42-47) (equality, freedom and practicality), (19) voluntary associations [compare with The Federalist Papers No. 10 (Madison on Factions] (219-227, 595-609, 700-702), (20) race (398-426); (21) manners (705): Materialism, Free Press, Kindness, Love of Comfort, Religion and Liberty.
Assignments for Class # 5

1. Sara Thompson: INDIVIDUALISM 683 (isolation), 589
Also Sara reads from page 475 beginning with words "The Americans dwell in a land of wonders”...and ending with words
"For Americans, their whole lives are spent as if in a game of chance, in a time of revolution or a day of battle.' 
2. Zac Richards: ASSOCIATIONS 219-227, 223, 595-609, 700-702 811
3. Nathan Batey: MATERIALISM 627-628 (read this aloud in class)
4. Natalie Humphrey: FREE PRESS 213, 222, 811-812
5. Darick Crumbly: LAWYERS 307-315, 308, 309, 314
6. Jonathan Raymond: PUBLIC EDUCATION
7. Brandi Melvin: WAR 755-756, 768, 260 (the draft): page 756: “All those who wish to destroy freedom within a democratic nation should realize that the most reliable and most rapid means of achieving it is war. That is the first principle of knowledge.”
8. Jacob Giesecke: NEW SOLUTIONS for NEW DISORDER 816-817 (main idea of the book, main purpose of legislation)
9. Brittany HAMPTON KINDNESS 653 (Death Penalty)
10. Chris Moncrief: DEPOTISM OF THE FUTURE 805-806
11. Stephanie Carr: FEAR OF DISORDER, LOVE OF COMFORT 788
12. Paige Hamby: LOVE OF MONEY 41, 64, 616-618, 627-628, 713, 721, 722, 788 and comfort, 618
13. Cathy Barnes: WOMEN 687, 692, 696, 700
14. Jillian Smith: UPWARD MOBILITY 637
15. Cassle Kennedy: EQUALITY & FREEDOM: The Puritans established America's democratic social state of equality. They arrived equals in education and were all middle class. 67
16. John Brown: RELIGION & LIBERTY: In addition,Tocqueville observes that they contributed a synthesis of religion and political liberty in America that was uncommon in Europe. 55-56
17. Nicolas Laughlin: MANNERS, SOCIAL CONDITION: 319, 357, 328, 705 Tocqueville believed that the Puritans established the principle of sovereignty of the people in the Fundamental Orders of Connecticut. The American Revolution then popularized this principle, followed by the Constitutional Convention of 1787, which developed institutions to manage popular will. While Tocqueville speaks highly of the America's Constitution, he believes that the mores, or "habits of mind" of the American people play a more prominent role in the protection of freedom. Read from page 705: Last sentence from 1st paragraph beginning with the words. “Thus it is that the effect of democracy is not to impose certain manners on men but, in a sense, to stop them from having any at all.”
18. Lauren Reynolds: JUDICIAL POWER 122, 314, 315, 812
19. Jasmine Hardin, NEW ARISTOCRACY 645-648 “…Day by day, he gains in skill….[end 646]….end of second literary paragraph…It has assigned him a certain station in society which he cannot escape. It has brought him to a stop in the midst of universal movement.” Page 648: “The business aristocracy seldom lives among the industrial population it manages….” To the end of the page. Read page 665: Begin second to last paragraph with word “From where they stand…[continue to page 666) read first four paragraphs and the two sentences from the next: “In the United States, I have not seen his like. Not only are Americans ignorant of the type of man in question but one has a great deal of trouble explaining his existence to them.’
20. Jenn Siewersen, SOURCE OF LAWS 49, 57, 58, 71, 319, (manners, custom, social condition) 335, 357, 362 (laws successful due to prosperity, 328).
21. Josh Porter: RACE 398-426
22. Molly: MAIN IDEA OF BOOK: 335, 816
Molly: TWO MOST IMPORTANT POWERS: Judicial and Free Press, 812

The love of comfort has become the dominant taste of the nation. Tocqueville 618.


Lawyers and Judges
  
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

Alexis de Tocqueville, 1835
Alexis de Tocqueville, a French political scientist, historian, and politician, is best known for Democracy in America (1835). ”). The aim of this book was to reveal American laws. [335] The main idea of the book is to seek new solutions to new disorders: to lay down extensive and transparent and settled boundaries for governmental power, to grant private individuals certain rights, to raise up the level of society as a whole is the objective of the legislator for the period we are about to enter [817]. A believer in democracy, he was concerned about the concentration of power in the hands of a centralized government. During his visit to the United States in 1831 and 1832, Tocqueville observed the deep social and political divisions produced by slavery. He was impressed, however, by the power of a free press and the importance that citizens placed upon the legal system.
In his observations on lawyers and judges, Tocqueville noted that U.S. courts of law possessed enormous political power. Judges had the power of judicial review, which allowed them to strike down laws as unconstitutional. He also observed that lawyers were active in politics, bringing to government and the political arena the knowledge, skills, and temperament peculiar to their profession. Tocqueville pointed out that lawyers are wedded to the public order and are often conservative. He concluded that "lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society."
Lawyers and Judges
Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule; this power is the only one peculiar to the American magistrate, but it gives rise to immense political influence. In truth, few laws can escape the searching analysis of the judicial power for any length of time, for there are few that are not prejudicial to some private interest or other, and none that may not be brought before a court of justice by the choice of parties or by the necessity of the case. But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force.
* * *
Within these limits the power vested in the American courts of justice of pronouncing a statute to be unconstitutional forms one of the most powerful barriers that have ever been devised against the tyranny of political assemblies.
* * *
When we have examined in detail the organization of the [United States] Supreme Court and the entire prerogatives which it exercises, we shall readily admit that a more imposing judicial power was never constituted by any people. The Supreme Court is placed higher than any other known tribunal, both by the nature of its rights and the class of justiciable parties which it controls.
* * *
From Democracy in America.
The peace, the prosperity, and the very existence of the Union are vested in the hands of the seven Federal judges [of the United States Supreme Court]. Without them the Constitution would be a dead letter: the executive appeals to them for assistance against the encroachments of the legislative power; the legislature demands their protection against the assaults of the executive; they defend the Union from the disobedience of the states, the states from the exaggerated claims of the Union, the public interest against private interests, and the conservative spirit of stability against the fickleness of the democracy. Their power is enormous, but it is the power of public opinion. They are all-powerful as long as the people respect the law; but they would be impotent against popular neglect or contempt of the law. The force of public opinion is the most intractable of agents, because its exact limits cannot be defined; and it is not less dangerous to exceed than to remain below the boundary prescribed.
* * *
Democratic laws generally tend to promote the welfare of the greatest possible number; for they emanate from the majority of the citizens, who are subject to error, but who cannot have an interest opposed to their own advantage. The laws of an aristocracy tend, on the contrary, to concentrate wealth and power in the hands of the minority; because an aristocracy, by its very nature, constitutes a minority. It may therefore be asserted, as a general proposition, that the purpose of a democracy in its legislation is more useful to humanity than that of an aristocracy. This, however, is the sum total of its advantages.
* * *
In visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy. This effect seems to me to result from a general cause, which it is useful to investigate, as it may be reproduced elsewhere….
Men who have made a special study of the laws derive from [that] occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.
The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude. Add to this that they naturally constitute a body; not by any previous understanding, or by an agreement that directs them to a common end; but the analogy of their studies and the uniformity of their methods connect their minds as a common interest might unite their endeavors.
Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other men, are governed by their private interests, and especially by the interests of the moment.
* * *
I do not, then, assert that all the members of the legal profession are at all times the friends of order and the opponents of innovation, but merely that most of them are usually so. In a community to which lawyers are allowed to occupy without opposition that high station which naturally belongs to them, their general spirit will be eminently conservative and anti-democratic. When an aristocracy excludes the leaders of that profession from its ranks, it excites enemies who are the more formidable as they are independent of the nobility by their labors and feel themselves to be their equals in intelligence though inferior in opulence and power.
* * *
Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten, also, that if they prize freedom much, they generally value legality still more; they are less afraid of tyranny than of arbitrary power; and, provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied.
* * *
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a two-fold authority from it and over it. The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
The profession of the law is the only aristocratic element that can be amalgamated without violence with the natural elements of democracy and be advantageously and permanently combined with them. I am not ignorant of the defects inherent in the character of this body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could hope to exist at the present time if the influence of lawyers in public business did not increase in proportion to the power of the people.
* * *
In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar.
The more we reflect upon all that occurs in the United States, the more we shall be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly oppose their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.
The courts of justice are the visible organs by which the legal profession is enabled to control the democracy. The judge is a lawyer who, independently of the taste for regularity and order that he has contracted in the study of law, derives an additional love of stability from the inalienability of his own functions. His legal attainments have already raised him to a distinguished rank among his fellows; his political power completes the distinction of his station and gives him the instincts of the privileged classes.
* * *
It must not be supposed, moreover, that the legal spirit is confined in the United States to the courts of justice; it extends far beyond them. As the lawyers form the only enlightened class whom the people do not mistrust, they are naturally called upon to occupy most of the public stations. They fill the legislative assemblies and are at the head of the administration; they consequently exercise a powerful influence upon the formation of the law and upon its execution. The lawyers are obliged, however, to yield to the current public opinion, which is too strong for them to resist; but it is easy to find indications of what they would do if they were free to act. The Americans, who have made so many innovations in their political laws, have introduced very sparing alterations in their civil laws, and that with great difficulty, although many of these laws are repugnant to their social condition. The reason for this is that in matters of civil law the majority are obliged to defer to the authority of the legal profession, and the American lawyers are disinclined to innovate when they are left to their own choice.
* * *
The influence of legal habits extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habit to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community and penetrates into all the classes which compose it; it acts upon the country imperceptibly, but finally fashions it to suit its own purposes.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.