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1.In Federalist No. 10, Madison refers to factions as being evil.Why? (2 points)

2.In Federalist No. 10, what did Madison suggest was the solution to the problems of factions? (2 points)

3.How is the following quote reflected in the structure of the government of the United States?“If men were angels, no government would be necessary.If angels were to govern men, neither external nor internal controls on government would be necessary.”(3 points)

4.Alexis de Tocqueville observed that people in the United States have great faith in majority rule.According to de Tocqueville, why do people in the United States give in to the majority?In other words, what is the source of the majority’s force.(3 points)

Short Essay: Write a two- to four-paragraph answer to the following short-essay question.Be sure to include information from the readings.(10 points)

5.Which argument regarding education is most compelling?Why?

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Alexis de Democracy TRANSLATED, EDITED, AND WITH AN INTRODUCTION BY Tocqueville in America ~e0~~~~0~~~~0~~0~~~ HARVEY C. MANSFIELD AND DELBA WINTHROP I PFW L. SFP 2 8 2001 HELMKE LIBRARY THE UNIVERSITY OF CHICAGO PRESS' CHICAGO AND LONDON HARVEY C. MANSFIELD is the William R. Kenan Jr. Professor of Government at Harvard University. Political philosopher and author, he is acknowledged as a leading translator of Machiavelli. DELBA WINTHROP is Lecturer in Extension and administrator of the Program on Constitutional Government at Harvard University. Her articles and essays have appeared in numerous publications. UNIVERSITY OF CHICAGO PRESS, CHICAGO 60637 THE UNIVERSITY OF CHICAGO PRESS, LTD., LONDON © 2000 BY THE UNIVERSITY OF CHICAGO ALL RIGHTS RESERVED. PUBLISHED 2000 PRINTED IN THE UNITED STATES OF AMERICA 09 08 07 06 05 04 03 02 01 4 5 ISBN: 0-226-80532-8 THE FRENCH TEXT ON WHICH THIS TRANSLATION IS BASED HAS BEEN LICENSED TO THE UNIVERSITY OF CHICAGO PRESS BY EDITIONS GALLIMARD AND IS PROTECTED BY FRENCH AND INTERNATIONAL COPYRIGHT LAWS AND AGREEMENTS. © EDITIONS GALLIMARD, 1992 LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA TOCQUEVILLE, ALEXIS DE, 1805-1859. [DE LA DEMOCRATIE EN AMERIQUE. ENGLISH] DEMOCRACY IN AMERICA / TRANSLATED, EDITED, AND WITH AN INTRODUCTION BY HARVEY C. MANSFIELD AND DELBA WINTHROP. P. CM. INCLUDES BIBLIOGRAPHICAL REFERENCES AND INDEX. ISBN 0-226-80532-8 (HARDCOVER) 1. UNITED STATES-POLITICS AND GOVERNMENT. 2. UNITED STATES- SOCIAL CONDITIONS. 3. DEMOCRACy-UNITED STATES. I. MANSFIELD, HARVEY CLAFLIN, 1932- II. WINTHROP, DELBA. III. TITLE. JK216 .T713 2000B 320·473-DC21 00- 0084 18 @ THE PAPER USED IN THIS PUBLICATION MEETS THE MINIMUM REQUIREMENTS OF THE AMERICAN NATIONAL STANDARD FOR INFORMATION SCIENCES-PERMANENCE OF PAPER FOR PRINTED LIBRARY MATERIALS, ANSI Z39.48-1992. ON THE OMNIPOTENCE OF THE MAJORITY IN THE UNITED STATES being; if reason appears to you to be more profitable to men than genius; if your object is not to create heroic virtues but peaceful habits; if you would rather see vices than crimes, and if you prefer to find fewer great actions on condition that you will encounter fewer enormities; if instead of acting within a brilliant society it is enough for you to live in the midst of a prosperous society; if, finally, the principal object of a government, according to you, is not to give the most force or the most glory possible to the entire body of the nation, but to procure the most well-being for each of the individuals who compose it and to have each avoid the most misery, then equalize conditions and constitute the government of a democracy. If there is no longer time to make a choice and if a force superior to man already carries you along toward one of the two governments without consulting your desires, seek at least to derive from it all the good that it can do; and knowing its good instincts as well as its evil penchants, strive to restrict the effects of the latter and develop the former. Chapter 7 ON THE OMNIPOTENCE OF THE MAJORITY IN THE UNITED STATES AND ITS EFFECTS Natural force of the majority in democracies.-Most of the American constitutions have artificially increased this natural force.-How.-Imperative mandates.-Moral empire of the majority.-Opinion of its infallibility.-Respect for its rights. What augments it in the United States. It is of the very essence of democratic governments that the empire of the majority is absolute; for in democracies, outside the majority there is nothing that resists it. Most of the American constitutions have also sought to augment this natural force of the majority artificially. 1 1. We have seen, during the examination of the federal constitution [DA I 1.8], that the legislators of the Union made contrary efforts. The result of these efforts was to render the federal government more independent in its sphere than that of the states. But the federal government is scarcely occupied with any but external affairs; it is the state governments that really direct American society. 235 VOLUME ONE, PART TWO, CHAPTER SEVEN Of all political powers, the legislature is the one that obeys the majority most willingly, Americans wanted the members of the legislature to be named directly by the people, and for a very short term, in order to oblige them to submit not only to the general views, but even to the daily passions of their constituents. They have taken the members of the two houses from the same classes and named them in the same manner, so that the motions of the legislative body are almost as rapid and no less irresistible than those of a single assembly. The legislature thus constituted, they have united almost all the government in it. At the same time that the law increased the force of powers that were naturally strong, it enervated more and more those that were naturally weak. It accorded neither stability nor independence to the representatives of the executive power; and, in submitting them completely to the caprices of the legislature, it took away from them the little influence that the nature of democratic government would have permitted them to exert. In several states it left the judicial power to the election of the majority, and in all, it made its existence depend in a way on the legislative power by leaving to the representatives the right to fix the salary of the judges each year. Usages have gone still further than the laws. A custom that in the end will make the guarantees of representative government vain is spreading more and more in the United States: it very frequently happens that electors, in naming a deputy, layout a plan of conduct for him and impose a certain number of positive obligations on him from which he can in no way deviate, It is as if, except for the tumult, the majority itself were deliberating in the public square. Several particular circumstances also tend to render the power of the majority in America not only predominant, but irresistible. The moral empire ofthemajority is founded in part on the idea that there is more enlightennlent arid ""isdom in many men united than in one alone, in the number of legislators than in their choice, It is the theory of equality applied to intellects, This doctrine attacks the pride of man in its last asylum: so the minority accepts it only with difficulty; it habituates itself to it only in the long term. Like all powers, and perhaps more than any of them, therefore, the power of the majority needs to be lasting in order to appear legitimate. When it begins to establish itself, it makes itself obeyed by constraint; it is only after having lived for a long time under its laws that one begins to respect it. The idea of the right to govern society that the majority possesses by its ON THE OMNIPOTENCE OF THE MAJORITY IN THE UNITED STATES enlightenment was brought to the soil of the United States by its first inhabitants. This idea, which alone would suffice to create a free people, has passed into mores today, and one finds it in even the least habits of life. The French under the former monarchy held as a constant that the king could never fail; and when he happened to do evil, they thought that the fault was in his counselors. That marvelously facilitated obedience. One could murmur against the law without ceasing to love and respect the legislator. The Americans have the same opinion of the majority. The moral empire of the majority is also founded on the principle that the interests of the greatest number ought to be preferred to those of the few. Now, one understands without difficulty that the respect that is professed for the right of the greatest number naturally increases or diminishes according to the state of the parties. When a nation is partitioned among several great irreconcilable interests, the privilege of the majority is often unrecognized because it becomes too painful to submit to it. If there existed in America a class of citizens whom the legislator was trying to strip of certain exclusive advantages possessed for centuries, and wanted to make them descend from an elevated situation so as to reduce them to the ranks of the multitude, it is probable that the minority would not easily submit to his laws. But the United States having been peopled by men equal among themselves, there is not as yet a natural and permanent dissidence among the interests of its different inhabitants. There is a certain social state in which the members of the minority cannot hope to attract the majority to them, because for that it would be necessary to abandon the very object of the struggle that they sustain against it. An aristocracy, for example, cannot become a majority while preserving its exclusive privileges, and it cannot let its privileges escape without ceasing to be an aristocracy. In the United States, political questions cannot be posed in a manner so general and so absolute, and all the parties are ready to recognize the rights of the majority because they all hope to be able to exercise them to their profit one day. The majority in the United States therefore has an immense power in fact, and a power in opinion almost as great; and once it has formed on a question, there are so to speak no obstacles that can, I shall not say stop, but even delay its advance, and allow it the time to hear the complaints of those it crushes as it passes. The consequences of this state of things are dire and dangerous for the future. 237 VOLUME ONE, PART TWO, CHAPTER SEVEN HOW THE OMNIPOTENCE OF THE MAJORITY IN AMERICA INCREASES THE LEGISLATIVE AND ADMINISTRATIVE INSTABILITY THAT IS NATURAL TO DEMOCRACIES How Americans increase the legislative instability that is natural to democracy by changing the legislator each year and arming him with a power almost without limits. - The same effect produced on administration.-In America the force brought to social improvements is infinitely greater, but less continuous than in Europe. I have spoken previously of the vices that are natural to the government of democracYi* there is not one of them that does not grow at the same time as the power of the majority. And, to begin with, the most apparent of all: Legislative instability is an evil inherent in democratic government because it is of the nature of democracies to bring new men to power. But this evil is more or less great according to the power and the means of action granted to the legislator. In America they hand over sovereign power to the authority that makes the laws. It can indulge each of its desires rapidly and irresistibly, and every year it is given other representatives. That is to say, they have adopted precisely the combination that most favors democratic instability and that permits democracy to apply its changing will to the most important objects. Thus in our day, of the world's countries, America is the one in which the laws have the least duration. Almost all the American constitutions have been amended within thirty years. There is therefore no American state that has not modified the principle of its laws during this period. As for the laws themselves, it is enough to cast a glance at the archives of the different states of the Union to be convinced that in America the action of the legislator never slows. It is not that American democracy is more unstable than any other by its nature, but it has been given the means to follow the natural instability of its penchants in the forming oflaws. 2 The omnipotence of the majority and the rapid and absolute manner in which its will is executed in the United States not only renders the law un'DA 12.5. 2. The legislative acts promulgated in the state of Massachusetts alone, from 1780 to our day, already fill three large volumes. Moreover, it must be remarked that the collection I am speaking of had been revised in 1823, and it removed many of the laws that were old or had become purposeless. Now, the state of Massachusetts, which is no more populous than one of our departments, can pass for the most stable in all the Union and the one that puts the most coherence and wisdom in its undertakings. ON THE OMNIPOTENCE OF THE MAJORITY IN THE UNITED STATES stable, it also exerts the same influence on the execution of the law and on the action of public administration. The majority being the sole power that is important to please, the works that it undertakes are eagerly agreed to; but from the moment that its attention goes elsewhere, all efforts cease; whereas in the free states of Europe, where the administrative power has an independent existence and a secure position, the will of the legislator continues to be executed even when it is occupied with other objects. In America, much more zeal and activity is brought to certain improvements than is done elsewhere. In Europe, a social force infinitely less great, but more continuous, is employed in these same things. Several years ago, some religious men undertook to improve the state of the prisons. * The public was moved by their voices, and the rehabilitation of criminals became a popular work. New prisons were then built. For the first time, the idea of reforming the guilty penetrated the dungeon at the same time as the idea of punishment. But the happy revolution with which the public had associated itself so eagerly, and which the simultaneous efforts of citizens rendered irresistible, could not work in a moment. Alongside the new penitentiaries, whose development was hastened by the wish of the majority, the old prisons still remained and continued to confine a great number of the guilty. The latter seemed to become more unhealthful and more corrupting as the new ones turned more to reform and became more healthful. This double effect is easily understood: the majority, preoccupied with the idea of founding the new establishment, had forgotten the one that already existed. Everyone then having turned his eyes from the object that no longer held the regard of the master, oversight had ceased. One first saw the salutary bonds of discipline slacken, and then, soon after, break. And alongside the prison, lasting monument to the mildness and the enlightenment of our time, was a dungeon that recalled the barbarism of the Middle Ages. TYRANNY OF THE MAJORITY How one must understand the principle of the sovereignty of the people. -Impossibility of conceiving a mixed government. - The sovereign power must be somewhere. - Precau- * AT probably has in mind the Quakers in Pennsylvania, who had long opposed the harshness of the Anglican penal code and who in the 1780s effected reforms in the penal code and organized the Philadelphia Society for the Alleviation of the Miseries of the Public Prisons. VOLUME ONE, PART TWO, CHAPTER SEVEN tions that ought to be taken to moderate its action.-These precautions have not been taken in the United States. - What results from this. I regard as impious and detestable the maxim that in matters of government the majority of a people has the right to do everything, and nonetheless I place the origin of all powers in the will of the majority. Am I in contradiction with myself? A general law exists that has been made or at least adopted not only by the majority of this or that people, but by the majority of all men. This law is justice. Justice therefore forms the boundary of each people's right. A nation is like a jury charged with representing the universal society and with applying the justice that is its law. Ought the jury that represents society have more power than the society itself for which it applies the laws? Therefore, when I refuse to obey an unjust law, I do not deny to the majority the right to command; I only appeal from the sovereignty of the people to the sovereignty of the human race. There are people who have not feared to say that a people, in the objects that interested only itself, could not go entirely outside the limits of justice and reason, and thus one must not fear giving all power to the majority that represents it. But that is the language of a slave. What therefore is a majority taken collectively, if not an individual who has opinions and most often interests contrary to another individual that one names the minority? Now, if you accept that one man vested with omnipotence can abuse it against his adversaries, why not accept the same thing for a majority? Have men changed in character by being united? Have they become more patient before obstacles by becoming stronger?3 As for me, I cannot believe it; and I shall never grant to several the power of doing everything that I refuse to a single one of those like me. lt is not that I believe that in order to preserve freedom one can mix several principles in the same government in a manner that really opposes them to one another. The government called mixed has always seemed to me to be a chimera. There is, to tell the truth, no mixed government (in the sense that one gives to this word), because in each society one discovers in the end one principle of action that dominates all the others. England in the last century, which has been cited particularly as an ex3. No one would want to maintain that a people cannot abuse its strength vis-a-vis another people. Now, parties form almost so many little nations in a great one; they are in the relation of foreigners among themselves. If it is agreed that one nation can be tyrannical toward another nation, how can it be denied that one party can be so toward another party? ON THE OMNIPOTENCE OF THE MAJORITY IN THE UNITED STATES ample of these sorts of governments, was an essentially aristocratic state, although large elements of democracy were found within it; for laws and mores there had been established so that aristocracy always had to predominate in the long term and direct public affairs at its will. The error has come from the fact that, seeing constantly the interests of the great doing battle with those of the people, one thought only of the struggle instead of paying attention to the result of that struggle, which was the important point. When a society really comes to have a mixed government, that is to say equally divided between contrary principles, it enters into revolution or it is dissolved. I think, therefore, that one must always place somewhere one social power superior to all the others, but I believe freedom to be in peril when that power finds no obstacle before it that can restrain its advance and give it time to moderate itself. Omnipotence seems to me to be an evil and dangerous thing in itself. Its exercise appears to me above the strength of man, whoever he may be, and I see only God who can be omnipotent without danger, because his wisdom and justice are always equal to his power. There is therefore no authority on earth so respectable in itself or vested with a right so sacred that I should wish to allow to act without control and to dominate without obstacles. Therefore, when I see the right and the ability to do everything granted to any power whatsoever, whether it is called people or king, democracy or aristocracy, whether it is exercised in a monarchy or in a republic, I say: there is the seed of tyranny, and I seek to go live under other laws. What I most reproach in democratic government, as it has been organized in the United States, is not, as many people in Europe claim, its weakness, but on the contrary, its irresistible force. And what is most repugnant to me in America is not the extreme freedom that reigns there, it is the lack of a guarantee against tyranny. When a man or a party suffers from an injustice in the United States, whom do you want him to address? Public opinion? that is what forms the majority; the legislative body? it represents the majority and obeys it blindly; the executive power? it is named by the majority and serves as its passive instrument; the public forces? the public forces are nothing other than the majority in arms; the jury? the jury is the majority vested with the right to pronounce decrees: in certain states, the judges themselves are elected by the majority. Therefore, however iniquitous or unreasonable is the measure that strikes you, you must submit to it.4 4. During the War of 1812, one saw a striking example in Baltimore of the excesses that the despotism of the majority can lead to. In this period the war was very popular in Baltimore. A VOLUME ONE, PART TWO, CHAPTER SEVEN Suppose on the contrary a legislative body composed in such a manner that it represents the majority without necessarily being the slave of its passions; an executive power with a force that is its own and a judicial power independent of the other two powers; you will still have democratic government, but there will be almost no more chance of tyranny. I do not say that at the present time frequent use is made of tyranny in America, I say that no guarantee against it may be discovered, and that one must seek the causes of the mildness of government in circumstances and mores rather than in the laws. EFFECTS OF THE OMNIPOTENCE OF THE MAJORITY ON THE ARBITRARINESS OF AMERICAN OFFICIALS Freedom that American law leaves to officials within the circle that it has drawn.Their power. One must distinguish well arbitrariness from tyranny. Tyranny can be exercised by means of law itself, and then it is not arbitrariness; arbitrariness can be exercised in the interest of the governed, and then it is not tyrannical. Tyranny ordinarily makes use of arbitrariness, but in case of need it knows how to do without it. In the United States, at the same time that the omnipotence of the majornewspaper that showed itself strongly opposed excited the indignation of the inhabitants by this conduct. The people assembled, broke the presses, and attacked the homes of the journalists. They wanted to call up the militia, but it did not respond to the appeal. In order to save the unfortunate ones whom the public furor threatened, they opted for conducting them to prison like criminals. This precaution was useless: during the night, the people assembled again; the magistrates having failed to call up the militia, the prison was forced, one of the journalists was killed on the spot, the others left for dead: the guilty referred to the jury were acquitted. I said one day to an inhabitant of Pennsylvania: "Explain to me, I pray you, how in a state founded by Quakers and renowned for its tolerance, freed Negroes are not allowed to exercise the rights of citizens. They pay tax, is it not just that they vote?" - "Do not do us the injury;' he responded to me, "of believing that our legislators have committed so gross an act of injustice and intolerance."-"So, among you, blacks have the right to vote?"-"Without any doubt.""Then how is it that in the electoral college this morning I did not perceive a single one of them in the assembly?" -"This is not the fault of the law," the American said to me; "It is true, Negroes have the right to be present at elections, but they abstain voluntarily from appearing there:' - "That indeed is modesty on their part!' - "Oh! It is not that they refuse to go there, but they fear that they will be mistreated there. It sometimes happens that the law lacks force among us when the majority does not support it. Now, the majority is imbued with the greatest prejudices against Negroes, and the magistrates do not feel they have the force to guarantee to them the rights that the legislator has conferred on them."-"What! The majority that has the privilege of making the law still wants to have that of disobeying the law?" ON THE OMNIPOTENCE OF THE MAJORITY IN THE UNITED STATES ity favors the legal despotism of the legislator, it favors the arbitrariness of the magistrate as well. The majority, being an absolute master in making the law and in overseeing its execution, having equal control over those who govern and over those who are governed, regards public officials as its passive agents and willingly deposits in them the care of serving its designs. It therefore does not enter in advance into the details of their duties and hardly takes the trouble to define their rights. It treats them as a master could do to his servants if, always seeing them act under his eye, he could direct or correct their conduct at each instant. In general, the law leaves American officials much freer than ours within the circle that it draws around them. It sometimes even happens that the majority permits them to leave it. Guaranteed by the opinion of the greatest number and made strong by its concurrence, they then dare things that a European, habituated to the sight of arbitrariness, is still astonished at. Thus are formed, in the bosom of freedom, habits that can one day become fatal to it. ON THE POWER THAT THE MAJORITY IN AMERICA EXERCISES OVER THOUGHT In the United States, when the majority has irrevocably settled on a question, there is no more discussion.- Why.-Moral power that the majority exercises over thought.Democratic republics make despotism immaterial. When one comes to examine what the exercise of thought is in the United States, then one perceives very clearly to what point the power of the majority surpasses all the powers that we know in Europe. Thought is an invisible and almost intangible power that makes sport of all tyrannies. In our day the most absolute sovereigns of Europe cannot prevent certain thoughts hostile to their authority from mutely circulating in their states and even in the heart of their courts. It is not the same in America: as long as the majority is doubtful, one speaks; but when it has irrevocably pronounced, everyone becomes silent and friends and enemies alike then seem to hitch themselves together to its wagon. The reason for this is simple: there is no monarch so absolute that he can gather in his hands all the strength of society and defeat resistance, as can a majority vested with the right to make the laws and execute them. A king, moreover, has only a material power that acts on actions and cannot reach wills; but the majority is vested with a force, at once material and moral, that acts on the will as much as on actions, and which at the same time prevents the deed and the desire to do it. VOLUME ONE, PART TWO, CHAPTER SEVEN I do not know any country where, in general, less independence of mind and genuine freedom of discussion reign than in America. There is no religious or political theory that cannot be preached freely in the constitutional states of Europe and that does not penetrate the others; for there is no country in Europe so subject to one single power that he who wants to speak the truth does not find support capable of assuring him against the consequences of his independence. If he has the misfortune to live under an absolute government, he often has the people for him; if he inhabits a free country, he can take shelter behind royal authority if need be. The aristocratic fraction of the society sustains him in democratic regions, and the democracy in the others. But in the heart of a democracy organized as that of the United States, one encounters only a single power, a single element of force and success, and nothing outside it. In America the majority draws a formidable circle around thought. Inside those limits, the writer is free; but unhappiness awaits him if he dares to leave them. It is not that he has to fear an auto-da-fe, but he is the butt of mortifications of all kinds and of persecutions every day. A political career is closed to him: he has offended the only power that has the capacity to open it up. Everything is refused him, even glory. Before publishing his opinions, he believed he had partisans; it seems to him that he no longer has any now that he has uncovered himself to all; for those who blame him express themselves openly, and those who think like him, without having his courage, keep silent and move away. He yields, he finally bends under the effort of each day and returns to silence as if he felt remorse for having spoken the truth. Chains and executioners are the coarse instruments that tyranny formerly employed; but in our day civilization has perfected even despotism itself, which seemed, indeed, to have nothing more to learn. Princes had so to speak made violence material; democratic republics in our day have rendered it just as intellectual as the human will that it wants to constrain. Under the absolute government of one alone, despotism struck the body crudely, so as to reach the soul; and the soul, escaping from those blows, rose gloriously above it; but in democratic republics, tyranny does not proceed in this way; it leaves the body and goes straight for the soul. The master no longer says to it: You shall think as I do or you shall die; he says: You are free not to think as I do; your life, your goods, everything remains to you; but from this day on, you are a stranger among us. You shall keep your privileges in the city, but they will become useless to you; for if you crave the vote'" of your fellow citizens, they will not grant it to you, and if you demand *Lit.: "choice." ON THE OMNIPOTENCE OF THE MAJORITY IN THE UNITED STATES only their esteem, they will still pretend to refuse it to you. You shall remain among men, but you shall lose your rights of humanity. When you approach those like you, they shall flee you as being impure; and those who believe in your innocence, even they shall abandon you, for one would flee them in their turn. Go in peace, I leave you your life, but I leave it to you worse than death. Absolute monarchies had dishonored despotism; let us be on guard that democratic republics do not rehabilitate it, and that in rendering it heavier for some, they do not remove its odious aspect and its demeaning character in the eyes of the greatest number. In the proudest nations of the Old World, works destined to paint faithfully the vices and ridiculousness of contemporaries were published; La Bruyere lived at the palace of Louis XIV when he composed his chapter on the great, and Moliere criticized the Court in plays that he had performed before courtiers.* But the power that dominates in the United States does not intend to be made sport of like this. The slightest reproach wounds it, the least prickly truth alarms it; and one must praise it from the forms of its language to its most solid virtues. No writer, whatever his renown may be, can escape the obligation of singing the praises of his fellow citizens. The majority, therefore, lives in perpetual adoration of itself; only foreigners or experience can make certain truths reach the ears of the Americans. If America has not yet had great writers, we ought not to seek the reasons for this elsewhere: no literary genius exists without freedom of mind, and there is no freedom of mind in America. The Inquisition could never prevent books contrary to the religion of the greatest number from circulating in Spain. The empire of the majority does better in the United States: it has taken away even the thought of publishing them. One encounters nonbelievers in America, but disbelief finds so to speak no organ. One sees governments that strive to protect mores by condemning the authors of licentious books. In the United States no one is condemned for these sorts of works; but no one is tempted to write them. It is not, however, that all the citizens have pure mores, but the majority is regular in its. Here the use of power is doubtless good: so I speak only of the power in itself. This irresistible power is a continuous fact, and its good use is only an accident. *Jean de la Bruyere (1645-1696) was a French satirist, whose "chapter on the great" is to be found in his book Characters (1688); Moliere (Jean Baptiste Poquelin, 1622-1673) was a French comic playwright. 245 VOLUME ONE, PART TWO, CHAPTER SEVEN EFFECTS OF THE TYRANNY OF THE MAJORITY ON THE NATIONAL CHARACTER OF THE AMERICANS; ON THE SPIRIT OF A COURT IN THE UNITED STATES Up to the present, the effects of the tyranny of the majority have made themselves felt more on mores than on the conduct of society.-They arrest the development of great characters.-Democratic republics organized like those of the United States put the spirit of a court within reach of the many.-Proofs of this spirit in the United States.- Why there is more patriotism in the people than in those who govern in its name. The influence of the preceding still makes itself felt only feebly in political society; but one already remarks its distressing effects on the national character of the Americans. I think that the small number of remarkable men who show themselves on the political scene today must above all be attributed to the always growing activity of the despotism of the majority in the United States. When the American Revolution broke out, a crowd of them appeared; public opinion then directed wills and did not tyrannize over them. The celebrated men of this period, associating freely in the movement of minds, had a greatness that was proper to them; they spread their brilliance over the nation and did not borrow [their brilliance 1from it. In absolute governments, the great who are near the throne flatter the passions of the master and voluntarily bend to his caprices. But the mass of the nation does not lend itself to servitude; it often submits to it out of weakness, out of habit, or out of ignorance; sometimes out of love of royalty or of the king. One has seen peoples take a kind of pleasure and pride in sacrificing their will to that of the prince, and so place a sort of independence of soul even in the midst of obedience. In these peoples one encounters much less degradation than misery. Besides, there is a great difference between doing what one does not approve of and feigning approval of what one does: the one is the part of a weak man, but the other belongs only to the habits of a valet. In free countries, where each is more or less called to give his opinion about affairs of state; in democratic republics, where public life is incessantly mixed with private life, where the sovereign is approachable from all sides and where it is only a question of raising one's voice to reach its ear, one encounters many more people who seek to speculate about its weakness and to live at the expense of its passions than in absolute monarchies. It is not that men are naturally worse there than elsewhere, but the temptation there is very strong and is offered to more people at the same time. A much more general abasement of souls results from it. ON THE OMNIPOTENCE OF THE MAJORITY IN THE UNITED STATES Democratic republics put the spirit of a court within reach of the many and let it penetrate all classes at once. That is one of the principal reproaches that can be made against them. That is above all true in democratic states organized like the American republics, where the majority possesses an empire so absolute and so irresistible that one must in a way renounce one's rights as a citizen and so to speak one's quality as a man when one wants to deviate from the path it has traced. Among the immense crowd that flocks to a political career in the United States, I have seen few men indeed who show that virile candor, that manly independence of thought, that often distinguished Americans in previous times and that, everywhere it is found, forms the salient feature of great characters. One would say at first approach that in America, spirits have all been formed on the same model, so much do they follow exactly the same ways. The foreigner, it is true, sometimes encounters Americans who deviate from the rigor of formulas; they come to deplore the viciousness of the laws, the volatility of democracy, and its lack of enlightenment; they often even go so far as to note the faults that alter the national character, and they point out the means that could be taken to correct them; but no one except you listens to them; and you, to whom they confide these secret thoughts, you are only a foreigner, and you pass on. They willingly deliver to you truths that are useless to you, and when they descend to the public square, they hold to another language. If these lines ever come to America, I am sure of two things: first, that readers will all raise their voices to condemn me; second, that many among them will absolve me at the bottom of their consciences. I have heard the native country spoken of in the United States. I have encountered genuine patriotism in the people; I have often sought it in vain in those who direct it. This is easily understood by analogy: despotism depraves the one who submits to it much more than the one who imposes it. In absolute monarchies, the king often has great virtues, but the courtiers are always base. It is true that courtiers in America do not say "Sire" and "Your Majesty"a great and capital difference; but they speak constantly of the natural enlightenment of their master; they do not hold a competition on the question of knowing which one of the virtues of the prince most merits being admired; for they are sure that he possesses all the virtues, without having acquired them and so to speak without wanting to do so; they do not give him their wives and their daughters so that he may deign to elevate them to the rank of his mistresses; but in sacrificing their opinions to him, they prostitute themselves. Moralists and philosophers in America are not obliged to wrap their opin- VOLUME ONE, PART TWO, CHAPTER SEVEN ions in veils of allegory; but before hazarding a distressing truth they say: We know that we are speaking to a people too much above human weaknesses not to remain always master of itself. We would not use language like this if we did not address men whose virtues and enlightenment rendered them alone among all others worthy of remaining free. How could the flatterers of Louis XIV do better? As for me, I believe that in all governments, whatever they may be, baseness will attach itself to force and flattery to power. And I know only one means of preventing men from being degraded: it is to grant to no one, along with omnipotence, the sovereign power to demean them. THAT THE GREATEST DANGER OF THE AMERICAN REPUBLICS COMES FROM THE OMNIPOTENCE OF THE MAJORITY It is by the bad use of their power, and not by powerlessness, that democratic republics are liable to perish. - The government of the American republics more centralized and more energetic than that of the monarchies ofEurope.-Danger that results from this.Opinions of Madison and Jefferson on this subject. Governments ordinarily perish by powerlessness or by tyranny. In the first case power escapes them; in the other, it is torn from them. Many people, on seeing democratic states fall into anarchy, have thought that government in these states was naturally weak and powerless. The truth is that when war among their parties has once been set aflame, government loses its action on society. But I do not think that the nature of democratic power is to lack force and resources; I believe, on the contrary, that almost always the abuse of its strength and the bad use of its resources bring it to perish. Anarchy is almost always born of its tyranny or its lack of skillfulness, but not of its powerlessness. One must not confuse stability with force, the greatness of the thing and its duration. In democratic republics, the power that directs society is not stable, for it often changes hands and purpose. 5 But everywhere it is brought, its force is almost irresistible. The government of the American republics appears to me to be as centralized and more energetic than that of absolute monarchies of Europe. I therefore do not think that it will perish from weakness. 6 5. Power can be centralized in an assembly; then it is strong, but not stable; it can be centralized in a man: then it is less strong, but it is more stable. 6. It is needless, I think, to alert the reader that here, as in all the rest of the chapter, I am speaking not of the federal government, but of the particular governments of each state, which the majority directs despotically. ON THE OMNIPOTENCE OF THE MAJORITY IN THE UNITED STATES If ever freedom is lost in America, one will have to blame the omnipotence of the majority that will have brought minorities to despair and have forced them to make an appeal to material force. One will then see anarchy, but it will have come as a consequence of despotism. President James Madison expressed the same thoughts. (See Federalist 51.) "It is of great importance in a republic;' he says, "not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. [... J* Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in the state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the confederacy and left to itself, the insecurity of rights under the popular form of government t within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it." Jefferson as well said: "The executive in our governments is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for long years. That of the executive will come in its turn, but it will be at a remote period:'? I like to cite Jefferson in preference to everyone else on this matter because I consider him to be the most powerful apostle that democracy has ever had. *AT omits the following passage here: "Different interests necessarily exist in different classes of citizens. If a majority be united in a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority-that is of the society itself; the other by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority very improbable, if not impracticable." tAT substitutes "tyranny of the majority" for "popular form of government." 7. Jefferson to Madison, March 15, 1789. [Conseil, Melanges politiques et philosophiques. Cf. Writings of Thomas Jefferson, 7: 312.] 249 Alexis de Democracy TRANSLATED, EDITED, AND WITH AN INTRODUCTION BY Tocqueville in America ~e00000000000000000 HARVEY C. MANSFIELD AND DELBA WINTHROP I P FW J, SFP 2 8 2001 HELMKE LIBRARY THE UNIVERSITY OF CHICAGO PRESS· CHICAGO AND LONDON HARVEY C. MANSFIELD is the William R. Kenan Jr. Professor of Government at Harvard University. Political philosopher and author, he is acknowledged as a leading translator of Machiavelli. DELBA WINTHROP is Lecturer in Extension and administrator of the Program on Constitutional Government at Harvard University. Her articles and essays have appeared in numerous publications. UNIVERSITY OF CHICAGO PRESS, CHICAGO 60637 THE UNIVERSITY OF CHICAGO PRESS, LTD., LONDON © 2000 BY THE UNIVERSITY OF CHICAGO ALL RIGHTS RESERVED. PUBLISHED 2000 PRINTED IN THE UNITED STATES OF AMERICA 09 08 07 06 05 04 03 02 01 4 5 ISBN: 0-226-80532-8 THE FRENCH TEXT ON WHICH THIS TRANSLATION IS BASED HAS BEEN LICENSED TO THE UNIVERSITY OF CHICAGO PRESS BY EDITIONS GALLIMARD AND IS PROTECTED BY FRENCH AND INTERNATIONAL COPYRIGHT LAWS AND AGREEMENTS. © EDITIONS GALLIMARD, 1992 LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA TOCQUEVILLE, ALEXIS DE, 1805-1859. [DE LA DEMOCRATIE EN AMERIQUE. ENGLISH] DEMOCRACY IN AMERICA INTRODUCTION BY HARVEY I TRANSLATED, EDITED, AND WITH AN C. MANSFIELD AND DELBA WINTHROP. P. CM. INCLUDES BIBLIOGRAPHICAL REFERENCES AND INDEX. ISBN 0-226-80532-8 (HARDCOVER) 1. UNITED STATES-POLITICS AND GOVERNMENT. 2. UNITED STATES- SOCIAL CONDITIONS. 3. DEMOCRACy-UNITED STATES. I. MANSFIELD, HARVEY CLAFLIN, 1932- II. WINTHROP, DELBA. III. TITLE. JK216 .T713 2000B 320-473-DC21 00-008418 @ THE PAPER USED IN THIS PUBLICATION MEETS THE MINIMUM REQUIREMENTS OF THE AMERICAN NATIONAL STANDARD FOR INFORMATION SCIENCES-PERMANENCE OF PAPER FOR PRINTED LIBRARY MATERIALS, ANSI Z39.48-1992. 100 VOLUME ONE, PART ONE, CHAPTER SEVEN Chapter 7 ON POLITICAL JUDGMENT IN THE UNITED STATES What the author means by political judgment.-How political judgment is understood in France, England, the United States.-In America, the political judge is occupied only with public officials.-He pronounces removals rather than penalties.-Political judgment, habitual means ofgovernment. -Political judgment, as it is intended in the United States, is, despite its mildness and perhaps because of its mildness, a very powerful arm in the hands of the majority. By political judgment I mean the decree that a political body, temporarily vested with the right to judge, pronounces. In absolute governments, it is useless to give judgments extraordinary forms; the prince in whose name the accused is prosecuted, being master of tribunals as of everything else, has no need to seek a guarantee elsewhere than in the idea people have of his power. The sole fear he can conceive is that even the external appearances of justice will not be kept and that in wishing to affirm his authority, it will be dishonored. But in most free countries, where the majority can never act on tribunals as an absolute prince would do, it has sometimes happened that judicial power is temporarily placed in the hands of the representatives of society themselves. They would rather temporarily confuse the powers in this way than violate the necessary principle of unity of government. England, France, and the United States have introduced political judgment into their laws: it is curious to examine the advantage that these three great peoples have gotten from it. In England and France, the House of Lords forms the high criminal court of the nation. 1 It does not judge all political offenses, but it can judge them all. Beside the House of Lords is another political power, vested with the right to accuse. The sole difference that exists on this point between the two countries is this: in England deputies can accuse whomsoever it well pleases them before the Lords, while in France they can prosecute only ministers of the king in this manner. Furthermore, in both countries the House of Lords has at its disposition all penal laws with which to strike offenders. 1. In addition, the House of Lords in England forms the last stage of appeal in certain civil affairs. See Blackstone, bk. 3, chap. 4 [Commentaries, vol. 3, 571. ON POLITICAL JUDGMENT IN THE UNITED STATES ]01 In the United States as in Europe, one of the two branches of the legislature is vested with the right to accuse, and the other with the right to judge. The [House of] Representatives denounces the guilty one, the Senate punishes him. But the Senate can be seised only by the representatives, and the representatives can accuse only public officials before it. Thus the Senate has a more restricted competence than the court oflords in France, and the representatives have a more extensive right of accusation than our deputies. But here is the greatest difference that exists between America and Europe: in Europe, political tribunals can apply all the provisions of the penal code; in America, when they have taken away from a guilty person the public character with which he had been vested and have declared him unworthy of occupying any political office in the future, their right is exhausted and the task of ordinary tribunals begins. I suppose that the president of the United States has committed a crime of high treason. The House of Representatives accuses him, the senators pronounce his deposition. Afterwards, he appears before a jury, which alone can take away his freedom or life. This serves to cast a bright light on the subject that occupies us. In introducing political judgment into their laws, the Europeans wanted to reach great criminals, whatever was their birth, their rank, or their power in the state. To succeed at it, they have temporarily gathered all the prerogatives of tribunals within one great political body. The legislator has then been transformed into a magistrate; he can establish the crime, classify it, and punish it. In giving him the rights of a judge, the law has imposed on him all its obligations, and it has bound him to observe all the forms of justice. When a political tribunal, French or English, has a public official answerable to it, and it pronounces a conviction against him, by that fact it takes his office away from him and can declare him unworthy of occupying any in the future: but here the political removal and interdiction are a consequence of the decree and not the decree itself. In Europe, political judgment is therefore a judicial act rather than an administrative measure. The contrary is seen in the United States, and it is easy to be convinced that political judgment there is indeed an administrative measure rather than a judicial act. It is true that the decree of the Senate is judicial in form; to render it, senators are obliged to conform to the solemnity and usages of the proceeding. It is also judicial in the grounds on which it is founded; the Senate is 1 102 VOLUME ONE, PART ONE, CHAPTER SEVEN generally obliged to take for the basis of its decision an offense of the common law. But it is administrative in its object. If the principal goal of the American legislator had really been to arm a political body with great judicial power, it would not have confined its action within the circle of public officials, for the most dangerous enemies of the state may not be vested with any office; this is above all true in republics, where the favor of parties is the primary power and where one is often all the stronger for not legally exercising any power. If the American legislator had wanted to give to society itself the right to prevent great crimes in the manner of the judge, by fear of punishment, he would have put at the disposition of political tribunals all the resources of the penal code; but he furnished them only an incomplete arm that cannot reach the most dangerous of criminals. For a judgment of political interdiction matters little to one who wants to overturn the laws themselves. The principal goal of political judgment in the United States is therefore to withdraw power from someone who makes a bad use of it and to prevent this same citizen from being vested with it in the future. It is, as one sees, an administrative action to which they have given the solemnity of a [judicial] decree. In this matter, therefore, the Americans have created something mixed. They have given to administrative removal all the guarantees of political judgment, and they have removed from political judgment its greatest rigors. This point fixed, everything follows; one then discovers why American constitutions submit all civil officials to the jurisdiction of the Senate and exempt the military from it, whose crimes are nevertheless more to be dreaded. In the civil order, the Americans have so to speak no dismissible officials: some are irremovable, others have their rights by a mandate that cannot be abrogated. In order to take power away from them, it is therefore necessary to judge them all. But the military depend on the head of state, who is himself a civil official. In reaching the head of state, one strikes them all with the same blow. 2 Now if one comes to compare the European system and the American system in the effects that each produces or can produce, one discovers differences no less tangible. In France and England political judgment is considered as an extraordinary arm that society ought not to make use of except to save itself in moments of great peril. One cannot deny that political judgment, as intended in Europe, violates 2. It is not that one can remove an officer's rank, but one can take his command away from him. ON POLITICAL JUDGMENT IN THE UNITED STATES the conservative principle of the division of powers and that it constantly threatens the freedom and the lives of men. Political judgment in the United States makes only an indirect attack on the principle of the division of powers; it does not threaten the existence of citizens; it does not hang over all heads, as in Europe, since it strikes only those who, by accepting public offices, have submitted in advance to its rigors. It is all at once less dreadful and less efficacious. Thus the legislators of the United States did not consider it as an extreme remedy for the great ills of society, but as an habitual means of government. From this point of view, it perhaps exerts more real influence on the social body in America than in Europe. One must not, in fact, allow oneself to be taken in by the apparent mildness of American legislation in what relates to political judgments. One should remark in the first place that in the United States the tribunal that pronounces these judgments is composed of the same elements and is subject to the same influences as the body charged with accusing, which gives an almost irresistible impetus to the vindictive passions of the parties. If political judges in the United States cannot pronounce penalties as severe as political judges in Europe, there are therefore fewer chances of being acquitted by them. Conviction is less dreadful and more certain. Europeans, in establishing political tribunals, had for their principal object to punish the guilty; Americans, to take power away from them. Political judgment in the United States is in some fashion a preventive measure. One therefore ought not to fetter the judge with very exact criminal definitions. Nothing is more frightening than the vagueness of American laws when they define political crimes properly speaking. "The President [... J shall be removed from Office on Impeachment for, and Conviction of" (says the Constitution of the United States, art. 1, sec. 4) "Treason, Bribery or other high Crimes and Misdemeanors:'* Most of the state constitutions are still more obscure. "The senate shall [... J hear and determine all impeachments made [... J against any officer or officers of the commonwealth;' says the constitution of Massachusetts, "for misconduct and maladministration in their offices:'3 "All [... J offending against the State, either by maladministration, corruption, neglect of duty, or any other high crime or misdemeanor;' says the constitution of Virginia, "shall be impeachable by the house of delegates."t There *The provisions for impeachment are found in art. tVirginia constitution ofI830, art. 3, sec. 13. 3. Chap. 1, sec. 2, no. 8. 2, sec. 4. VOLUME ONE, PART ONE, CHAPTER SEVEN are some constitutions that, in order to allow an unlimited responsibility to weigh on public officials, do not specify any crime. 4 But what renders the American laws so dreadful in this matter arises, I will dare to say, from their mildness itself. We have seen that in Europe, the removal of an official and his political interdiction is one consequence of the penalty and that in America, it is the penalty itself. This is the result: in Europe, political tribunals are vested with terrible rights that they sometimes do not know how to use; and it happens that they do not punish for fear of punishing too much. But in America, they do not recoil before a penalty that does not make humanity tremble: to condemn a political enemy to death in order to take away his power is a horrible assassination in the eyes of all; to declare one's adversary unworthy of possessing that same power and to remove it from him, leaving him his freedom and his life, can appear the honest result of a conflict. Now, this judgment, so easy to pronounce, is not less the height of misfortune for the common sort among those to whom it applies. Great criminals will doubtless brave its futile rigors; ordinary men will see in it a decree that destroys their position, stains their honor, and condemns them to a shameful idleness worse than death. Political judgment in the United States therefore exerts an influence on the working of society so much the greater as it seems less dreadful. It does not act directly on the governed, but it renders a majority the entire master of those who govern; it does not give to the legislature an immense power that it could exercise only on the day of a crisis; it allows it to have a moderated, regular power that it can use every day. If the force is less great, on the other hand, the use is more convenient and the abuse easier. In preventing political tribunals from pronouncing judicial penalties, the Americans therefore seem to me to have prevented the most terrible consequences of legislative tyranny rather than the tyranny itself. And I do not know if, all in all, political judgment, as it is intended in the United. States, is not the most formidable arm that has ever been put in the hands of the majority. When the American republics begin to degenerate, I believe that one will be able to recognize it easily: it will be enough to see if the number of political judgments rises.* *See AT's note XIII, page 694. 4. See the constitutions of Illinois, Maine, Connecticut, and Georgia. Alexis de Democracy TRANSLATED, EDITED, AND WITH AN INTRODUCTION BY Tocqueville in America HARVEY C. MANSFIELD AND DELBA WINTHROP =S-t< I P FW (~ i~ J, SFP 2 8 2001 ,'j HELMKE LIBRARY THE UNIVERSITY OF CHICAGO PRESS· CHICAGO .. / (:::-' .,~,/ ,'" AND /.. k) ~, LONDON ' ".---- HARVEY C. MANSFIELD is the William R. Kenan Jr. Professor of Government at Harvard University. Political philosopher and author, he is acknowledged as a leading translator of Machiavelli. DELBA WINTHROP is Lecturer in Extension and administrator of the Program on Constitutional Government at Harvard University. Her articles and essays have appeared in numerous publications. UNIVERSITY OF CHICAGO PRESS, CHICAGO 60637 THE UNIVERSITY OF CHICAGO PRESS, LTD., LONDON © 2000 BY THE UNIVERSITY OF CHICAGO ALL RIGHTS RESERVED. PUBLISHED 2000 PRINTED IN THE UNITED STATES OF AMERICA 09 08 07 06 05 04 03 02 01 4 5 ISBN: 0-226-80532-8 THE FRENCH TEXT ON WHICH THIS TRANSLATION IS BASED HAS BEEN LICENSED TO THE UNIVERSITY OF CHICAGO PRESS BY EDITIONS GALLIMARD AND IS PROTECTED BY FRENCH AND INTERNATIONAL COPYRIGHT LAWS AND AGREEMENTS. © EDITIONS GALLIMARD, 1992 LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA TOCQUEVILLE, ALEXIS DE, 1805-1859. [DE LA DI1MOCRATIE EN AMERIQUE. ENGLISH] DEMOCRACY IN AMERICA / TRANSLATED, EDITED, AND WITH AN INTRODUCTION BY HARVEY C. MANSFIELD AND DELBA WINTHROP. P. CM. INCLUDES BIBLIOGRAPHICAL REFERENCES AND INDEX. ISBN 0-226-80532-8 (HARDCOVER) L UNITED STATES-POLITICS AND GOVERNMENT. 2. UNITED STATESSOCIAL CONDITIONS. 3. DEMOCRACy-UNITED STATES. I. MANSFIELD, HARVEY CLAFLIN, 1932- II. WINTHROP, DELBA. III. TITLE. JK216 .T713 2000B 320·473-DC21 00-0084 18 @l THE PAPER USED IN THIS PUBLICATION MEETS THE MINIMUM REQUIREMENTS OF THE AMERICAN NATIONAL STANDARD FOR INFORMATION SCIENCES-PERMANENCE OF PAPER FOR PRINTED LIBRARY MATERIALS, ANSI Z39-48-1992. ON THE PRINCIPLE OF THE SOVEREIGNTY OF THE PEOPLE IN AMERICA Peoples can therefore draw two great political consequences from the same social state: these consequences differ prodigiously between themselves, but they both issue from the same fact. The first to be submitted to the formidable alternative that I have just described, the Anglo-Americans have been happy enough to escape absolute power. Circumstances, origin, enlightenment, and above all mores have permitted them to found and maintain the sovereignty of the people. Chapter 4 ON THE PRINCIPLE OF THE SOVEREIGNTY OF THE PEOPLE IN AMERICA It dominates all of American society.-Application that the Americans already made of this principle before their revolution.-Development that their revolution gave to it.Gradual and irresistible lowering of the property qualification. When one wants to speak of the political laws of the United States, it is always with the dogma of the sovereignty of the people that one must begin. The principle of the sovereignty of the people, which is always more or less at the foundation of almost all human institutions, ordinarily dwells there almost buried. One obeys it without recognizing it, or if sometimes it happens to be brought out in broad daylight for a moment, one soon hastens to plunge it back into the darkness of the sanctuary. National will is one of the terms that intriguers in all times and despots in all ages have most largely abused. Some have seen its expression in the bought suffrage of a few agents of power; others in the votes of an interested or fearful minority; there are even some who have discovered it fully expressed in the silence of peoples, and who have thought that from the fact of obedience arises the right for them to command. In America, the principle of the sovereignty of the people is not hidden or sterile as in certain nations; it is recognized by mores, proclaimed by the laws; it spreads with freedom and reaches its final consequences without obstacle. If there is a single country in the world where one can hope to appreciate the dogma of the sovereignty of the people at its just value, to study it in its application to the affairs of society, and to judge its advantages and its dangers, that country is surely America. 53 VOLUME ONE, PART ONE, CHAPTER FOUR 54 I said previously that from the origin, the principle of the sovereignty of the people was the generative principle of most of the English colonies of America." It was nevertheless very far from dominating the government of society then as it does in our day. Two obstacles, one external, the other internal, slowed its pervasive advance. It could not come to light outwardly within the laws since the colonies were still constrained to obey the mother country; it was therefore reduced to hiding itself in provincial assemblies and above all in the township. There it spread in secret. American society then was not yet prepared to adopt it in all its consequences. As I brought out in the preceding chapter, enlightenment in New England and wealth to the south of the Hudson long exerted a sort of aristocratic influence that tended to narrow into few hands the exercise of social powers. They were still very far from having all public officials elected and all citizens electors. Everywhere electoral rights were confined within certain limits and subordinated to the existence of a property qualification. That property qualification was very low in the North, more considerable in the South. The American Revolution broke out. The dogma of the sovereignty of the people came out from the township and took hold of the government; all classes committed themselves to its cause; they did combat and they triumphed in its name; it became the law of laws. A change almost as rapid was effected in the interior of society. Estate law served to break down local influences. At the moment when this effect of the laws and of the Revolution began to reveal itself to all eyes, victory had already been irrevocably pronounced in favor of democracy. Power was, in fact, in its hands. It was no longer permissible even to struggle against it. The upper classes therefore submitted without a murmur and without combat to an evil henceforth inevitable. What happens ordinarily to powers that fall happened to them: individual selfishness took hold in their members; as they could no longer tear force from the hands of the people and as they did not detest the multitude enough to take pleasure in defying it, they no longer dreamed of anything except gaining its good will at any price. The most democratic laws were therefore voted in a rivalry among the men whose interests they bruised the most. In this manner the upper classes did not excite popular passions against them; but they themselves hastened the triumph of the new order. Thus, a singular *DA I 1.2. ON THE PRINCIPLE OF THE SOVEREIGNTY OF THE PEOPLE IN AMERICA thing! One saw the democratic impulse more irresistible in states where aristocracy had the deepest roots. The state of Maryland, which had been founded by great lords, proclaimed universal suffrage! first and introduced into its entire government the most democratic forms. When a people begins to touch the electoral qualification, one can foresee that it will sooner or later make it disappear completely. That is one of the most invariable rules that govern societies. As one moves the limit of electoral rights back, one feels the need to move it back more; for after each new concession, the forces of democracy increase and its demands grow with its new power. The ambition of those who are left below the property qualification becomes irritated in proportion to the great number of those who are found above. The exception finally becomes the rule; concessions succeed each other relentlessly and there is no stopping until they have arrived at universal suffrage. In our day the principle of the sovereignty of the people has tried out all practical developments in the United States that the imagination can conceive. It has been disengaged from all the fictions with which one has taken care to surround it elsewhere; one sees it reclothed successively in all forms, according to the necessity of the case. Sometimes the people in a body makes the laws as at Athens; sometimes deputies whom universal suffrage has created represent it and act in its name under its almost immediate surveillance. There are countries where a power in a way external to the social body acts on it and forces it to march on a certain track. There are others where force is divided, placed at once in society and outside it. Nothing like this is seen in the United States; there society acts by itself and on itself. Power exists only within its bosom; almost no one is encountered who dares to conceive and above all to express the idea of seeking it elsewhere. The people participate in the drafting of laws by the choice of the legislators, in their application, by the election of the agents of the executive power; one can say that they govern themselves, so weak and restricted is the part left to the administration, so much does the latter feel its popular origin and obey the power from which it emanates. The people reign over the American political world as does God over the universe. They are the cause and the end of all things; everything comes out of them and everything is absorbed into them." * See AT's note VIII, page 691. 1. Amendments made to the constitution of Maryland in ratified in 1810 J. 1801 and 1809 [articles 12 and 14, 55 Clashing Views on Social Issues FOURTEENTH EDITION, EXPANDED Selected, Edited, and with Introductions by Kurt Finsterbusch University of Maryland AUG 2 J ') 7 L_ HELMJ\ LIBRARY I ~~~-~ Contemporary Learning Series 2460 Kerper Blvd., Dubuque, lA 52001 Visit us on the Internet http://www. mhcls.com To my wife, Meredith Ramsay, who richly shares with me a life of the mind and much, much more. Photo Acknowledgment Cover image: Buccina Studios/Getty Images Cover Art Acknowledgment Maggie Lytle Compositor: ICC Macmillan Inc. Copyright© 2008 by McGraw-Hill Contemporary Learning Series, A Division of The McGraw-Hill Companies, Inc., Dubuque, Iowa 52001 Copyright law prohibits the reproduction, storage, or transmission in any form by any means of any portion of this publication without the express written permission of McGraw-Hill Contemporary Learning Series and of the copyright holder (if different) of the part of the publication to be reproduced. The Guidelines for Classroom Copying endorsed by Congress explicitly state that unauthorized copying may not be used to create, to replace, or to substitute for anthologies, compilations, or collective works. Taking Sides ® is a registered trademark of the McGraw-Hill Companies, Inc. Manufactured in the United States of America Fourteenth Edition, Expanded 123456789DOCDOC987 Library of Congress Cataloging-in-Publication Data Main entry under title: Taking sides: clashing views on social issues/selected, edited, and with introductions by Kurt Finsterbusch.-14th ed., expanded Includes bibliographical references and index. 1. Social behavior. 2. Social problems. I. Finsterbusch, kurt, comp. 302 MHID: 0-07-339716-4 ISBN: 978-0-07-339716-0 95-83865 Printed on Recycled Paper r>t Clint Bolick YES The Key to Closing the Minority Schooling Gap: School Choice L a nation supposedly committed to free enterprise, consumer choice, and equal educational opportunities, school choice should be routine. That it is not demonstrates the clout of those dedicated to preserving the government's monopoly over public education. To listen to the education establishment, one would think that school choice is a radical, scary, alien concept. Indeed, the defenders of the status quo have convinced many voters that school choice is a threat to American sOciety. But school choice is not threatening, and it is not new. To the contrary, it is the norm in most modern nations .... Even in the U.S., non-government schools have long played a key educational role, often using public funds. America's college system-the world's envy-is built on school choice: Students can use the G.I. Bill, Pell Grants, and other forms of government aid to attend either public or private schools, including religious institutions. At the other end of the age spectrum, parents of preschoolers can use child care vouchers in private and religious settings. And under federal law, tens of thousands of disabled elementary and high school age children receive schooling in private schools at public expense. It is only mainstream K-12 schools in which the government commands a monopoly over public funds. Thomas Paine, the most prescient of our founding fathers, is credited with first suggesting a voucher system in the United States. He wanted an educated, enlightened citizenry, but the idea that the government should operate schools was an alien concept to him and his generation. Instead, Paine proposed providing citizens with financial support that they could use to purchase education in private schools. The great portion of early American "public" education took place in private schools. Even when states started creating government schools, the teachers often were ministers. The concept of "separation of church and state" is not in the U.S. Constitution, and was certainly never applied to education. In 1869, Vermont adopted a school choice program for communities that did not build their own public schools, and Maine followed suit in 1873. To this day, both states will pay tuition for children to attend private schools, or public schools in neighboring communities. In Vermont, 6,500 children from 90 towns From The American Enterprise, April/May 2003, pp. 30-33. Copyright © 2003 by American Enterprise Institute. Reprinted with permission of The American Enterprise, a magazine of Politics, Business, and Culture. www.TAEmag.com 244 YES / Clint Bolick 245 attend private schools at government expense; in Maine, 5,600 children from 55 towns do so. Those programs, in existence for more than a century and a quarter, have not destroyed the local public schools; to the contrary, both states boast a well-educated population. But the goal of universal common schooling, fueled by the ideas of Horace Mann, helped make government schools the norm in the late nineteenth century. Thereafter, private schools typically served two groups: the elite, and those seeking a religious immersion different from the Protestant theology that dominated public schools. The latter, of course, were primarily Catholic immigrants. The rise of Catholic schools bitterly annoyed Protestant public school advocates like Senator James Blaine (R-ME). Blaine struck back in 1876. His proposed amendment to the U.S. Constitution to prohibit any government aid to religious schools came just short of securing passage in Congress. His allies, however, lobbied state legislatures and succeeded in attaching "Blaine amendments" to approximately 37 state constitutions which prohibited expenditure of public funds in "support" of sectarian (Le., Catholic) schools. Anti-Catholic bigotry crested in an Oregon law, secured by the Ku Klux Klan, which required all children to attend government schools. In the landmark 1925 decision Pierce v. Society of Sisters, the U.S. Supreme Court struck down that Oregon law, declaring that "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." This principle of parental sovereignty remains a cornerstone of American law today. Though it remains constantly under attack, it continues to keep private educational options (among other rights) open to parents. The modern case for school vouchers was first made by the Nobel laureate economist Milton Friedman in 1955. Instead of providing education as a monopoly supplier, Friedman suggested, government should just finance it. Every child would be given a voucher redeemable at a school of the parent's choice, public or private. Schools would compete to attract the vouchers. Friedman's proposal contained two insights that formed the intellectual foundations of the contemporary school choice movement: that parents, rather than government, should decide where children attend school, and that the economic rules which yield good services and products are not suspended at the schoolhouse door. Support for school choice began to expand and diversify in the 1970s, when two liberal Berkeley law professors, Jack Coons and Steven Sugarman, began to consider school choice as a means of delivering educational equity. If forced busing plans had failed, Coons and Sugarman argued, why not give vouchers to poor and minority parents so they could choose the best education for their children? Coons and Sugarman adapted Friedman's proposal to their own ends: While Friedman advocated universal vouchers, Coons and Sugarman 246 ISSUE 14 / Is Competition the Reform That Will Fix Education? wanted to target them to disadvantaged populations. Friedman preferred a lightly regulated system, while Coons and Sugarman called for substantial government oversight. Still, there was the beginning of an alliance between freedom-seeking conservatives on the one hand and equality-seeking liberals on the other. That alliance eventually made the school choice programs of the 1990s a reality. The main force generating support for vouchers, however, was the alarming decline in urban public schools. During the 1960s and 1970s, most urban public schools were ruined. Whites and middle-class blacks fled to the suburbs, leaving poor and mostly minority populations in rapidly worsening city public schools. The problems of urban public schools were connected to a broader decline in public education. The 1983 study A Nation at Risk warned that large doses of mediocrity and failure had crept into American public schools. Meanwhile, starting in the 1980s, social scientists like James Coleman began showing that private and religious schools were succeeding in educating the very same poor, minority schoolchildren that government schools were failing. Many corroborating studies followed. Also helping set the stage for a school choice movement was the 1990 Brookings Institution study by John Chubb and Terry Moe, Politics, Markets & America's Schools. Chubb and Moe set out to discover why suburban public schools and inner-city private schools generally produced good academic outcomes, while inner-city public schools were disasters. They found that whereas the first two types of schools were characterized by strong leaders with a clear mission and a high degree of responsiveness to parents, inner-city schools were not. Instead, urban public school districts were run by bloated bureaucracies whose principal constituencies were not parents, but politicians and unions. A crucial factor distinguishing the successful and unsuccessful schools was the element of choice: Suburban parents could send their children to private schools, or move to different communities, if they were dissatisfied with their public schools. Private schools, obviously, were entirely dependent on satisfied parents. But inner-city public school parents were captives: They had no choice except to send their children to whatever the local government school offered. In school districts with tens or hundreds of thousands of students, they were powerless to do anything about the system. Introducing choice in inner-city public schools, Chubb and Moe concluded-particularly giving parents the power to exit the public system altogether-would force the bureaucracy to respond to its customers rather than to politicians and special-interest groups. These findings created a scholarly foundation for school choice as a way not merely of helping children in failing government schools, but also as an essential prerequisite for reforming public school systems. When the current school choice movement started to come together a decade or two ago, its leading protagonists could have met comfortably in a telephone booth. In an amazingly short period, it has grown into a sophisticated, passionate, and ecumenical movement. There are philanthropists, YES / Clint Bolick 247 activists, public officials, clergy, lawyers, and parents, all willing to put aside ideological differences in pursuit of a common cause. The movement's core argument is that parents, not government, should have the primary responsibility and power to determine where and how their children are educated. That this basic principle should require a vidous fight is testimony to the strength, determination, and ferocity of the reactionary forces defending today's educational status quo. Teacher unions, which form the cornerstone of our education establishment, are the most powerful special-interest group in America today. At the national level, they essentially own the Democratic Party. At the state level, they wield enormous influence over elected officials in both parties. At the local level, they frequently control school boards. They and their education allies dedicated all the resources at their disposal to defeat meaningful school choice anywhere it has presented itself. For the education establishment, this battle is about preserving their monopolistic vise grip on American schooling. For parents-and our society--the stakes are much higher. Nearly 50 years after Brown v. Board of Education, vast numbers of black and Hispanic children do not graduate from high school. Many of those who do still lack the most basic skills needed for even entry-level jobs. As a result, many children in inner-city schools wind up on welfare or in jail. Children who most need the compensations of a quality education are instead regulated to dysfunctional schools. In climbing out of this morass we should not worry about whether a particular reform is too radical; we should worry about whether it is radical enough. The school choice movement is not only a crusade to improve American education. It is also a true civil rights struggle. It is critical to the real lives of real people. The system has written off many of the people who most need choiceboth the parents and their children. Minority citizens may be offered welfare payments, or racial preferences, but little is done to help them become productive, self-supporting citizens. Government schools and their liberal patrons implicitly assume that low-income children are incapable of learning. With little expected of these children, that becomes a self-fulfilling prophecy. Meariwhile, conditions are different in most inner-city private schools. Not because they have greater resources than their public school counterparts (they typically have far fewer), or because they are selective (they usually accept all applicants), but rather because the operating philosophy is markedly different. At nongovernment schools, parents are not discouraged from involvement, they are required to playa role in the school and in their children's education. The children are expected to behave. They are expected to achieve. And research shows that they do. Ultimately, we want school choice programs that are large and accessible enough to give government schools a serious run for their money. But initially, even a small program-publicly or privately funded-can begin to introduce inner-city parents to the previously unknown concept that there is an alternative to failure. That creates a constituency for a larger program. Any functioning program, no matter how small, will change the debate from one about hypotheticals to one about realities. When we can show that 248 ISSUE 14 I Is Competition the Reform That Will Fix Education? competition helps public schools, and that families are choosing good schools rather than, say, witch-craft schools, we can begin to debunk the myths of choice adversaries. In Milwaukee, where school choice has been pioneered, public opinion polls show that support for choice is stronger the closer one is to the program. Not only inner-city parents but also suburban parents now support school choice there. Actual experience has shown that school choice programs do not skim the cream" of students, as our detractors like to say, leaving only hard cases in the public schools. Instead (not surprisingly), school choice programs usually attract children who are experiencing academic or disciplinary problems in government schools. Many such children are on a downward trajectory. Just arresting that trajectory is an accomplishment, even if it doesn't show up immediately in improved test scores. Academic research by Harvard's Paul Peterson and others shows that academic gains are modest in the first year or two of a school choice program, and begin to accelerate afterward. Longitudinal studies tracking choice students over many years seem likely to find higher high school graduation and college enrollment rates, plus other measures of success. If that happens, the debate over the desirability of school choice will be over. The pioneers of school chOice will have shown how to rescue individuals from otherwise dark futures, as well as how to force our larger system of public education to improve itself for the good of all students. /I Clashing Views on Social Issues FOURTEENTH EDITION, EXPANDED Selected, Edited, and with Introductions by Kurt Finsterbusch University of Maryland AUG 2 J ') 7 L_ HELMJ\ LIBRARY I ~~~-~ Contemporary Learning Series 2460 Kerper Blvd., Dubuque, lA 52001 Visit us on the Internet http://www. mhcls.com To my wife, Meredith Ramsay, who richly shares with me a life of the mind and much, much more. Photo Acknowledgment Cover image: Buccina Studios/Getty Images Cover Art Acknowledgment Maggie Lytle Compositor: ICC Macmillan Inc. Copyright© 2008 by McGraw-Hill Contemporary Learning Series, A Division of The McGraw-Hill Companies, Inc., Dubuque, Iowa 52001 Copyright law prohibits the reproduction, storage, or transmission in any form by any means of any portion of this publication without the express written permission of McGraw-Hill Contemporary Learning Series and of the copyright holder (if different) of the part of the publication to be reproduced. The Guidelines for Classroom Copying endorsed by Congress explicitly state that unauthorized copying may not be used to create, to replace, or to substitute for anthologies, compilations, or collective works. Taking Sides ® is a registered trademark of the McGraw-Hill Companies, Inc. Manufactured in the United States of America Fourteenth Edition, Expanded 123456789DOCDOC987 Library of Congress Cataloging-in-Publication Data Main entry under title: Taking sides: clashing views on social issues/selected, edited, and with introductions by Kurt Finsterbusch.-14th ed., expanded Includes bibliographical references and index. 1. Social behavior. 2. Social problems. I. Finsterbusch, kurt, comp. 302 MHID: 0-07-339716-4 ISBN: 978-0-07-339716-0 95-83865 Printed on Recycled Paper POSTSCRIPT Is Competition the Reform That Will Fix Education? Since school reformers have focused on school choice, the literature on it has mushroomed. The choice proposal first gained public attention in 1955 when Milton Friedman wrote about vouchers in "The Role of Government in Education," in Robert$olo, ed., Economics and the Public Interest (Rutgers University Press). More recent school choice advocates include Harry Brighouse, School Choice and Social Justice (Oxford University Press, 2000); Mark Schneider, Choosing Schools: Consumer Choice and the Quality of American Schools (Princeton University Press, 2000); Philip A. Woods, School Choice and Competition: Markets in the Public Interest (Routledge, 1998); Sol Stern, Breaking Free: Public School Lessons and the Imperative of School Choice (Encounter Books, 2003); Clint Bolick, Voucher Wars: Waging the Legal Battle over School Choice (Cato Institute, 2003); Clive R. Belfield and Henry M. Levin, Privatizing Educational Choice (Paradigm Publishers, 2005); James G. Dwyer, Vouchers within Reason: A Child-Centered Approach to Education Reform (Cornell University Press, 2002); and Emily Van Dunk, School Choice and the Question of Accountability: The Milwaukee Experience (Yale University Press, 2003). School choice is most strongly advocated for inner-city schools. See Frederick M. Hess, Revolution at the Margins: The Impact of Competition on Urban School Systems (Brookings Institution Press, 2002) and William G. Howell, The Education Gap: Vouchers and Urban Schools (Brookings Institution Press, 2002). For discussions between school choice systems, see Public School Choice vs. Private School Vouchers, edited by Richard D. Kahlenberg (Century Foundation, 2003). For a less partisan view see Joseph P. Viteritti, Choosing Equality: School Choice, the Constitution, and Civil Society (Brookings Institute Press, 1999). For comparisons of school choice with other reforms, see Margaret C. Wang and Herbert ]. Walberg, eds., School Choice or Best Systems: What Improves Education? (L. Erlbaum Associates, 2001). Some advocates of choice would limit the choices in major ways. TimothyW. Young and Evans Clinchy, in Choice in Public Education (Teachers College Press, 1992), contend that there is already considerable choice in public education so they argue against a voucher system, which they feel will divert badly needed financial resources from the public schools to give further support to parents who can already afford private schools. Important critiques of school choice include Albert Shanker and Bella Rosenberg, Politics, Markets, and America's Schools: The Fallacies of Private School Choice (American Federation of Teachers, 1991); Kevin B. Smith and Kenneth]. Meier, The Case Against School Choice: Politics, Markets, and Fools (M. E. Sharpe, 1995); Seymour Bernard Sarason, Questions You Should Ask about Charter Schools 258 and Vouchers (Heinemann, 2002); Lois H. Andre Buchely, Could It Be Otherwise? Parents and the Inequities of Public School Choice (Routledge, 2005); Gary Miron and Christopher Nelson, What's Public about Charter Schools?: Lessons Learned about Choice and Accountability (Corwin Press, 2002); R. Kenneth Godwin and Frand R. Kemerer, School Choice Tradeoff: Liberty, Equity, and Diversity (University of Texas Press, 2002); School Choice: The Moral Debate, edited by Alan Wolfe (Princeton University Press, 2003); Ronald G. Corwin and E. Joseph Schneider, The School Choice Hoax: Fixing American's Schools (Praeger, 2005). 259
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