TOCQUEVILLE: The Power of the Majority (Causes Which Mitigate the Tyranny…)

Democracy in America (excerpt from Volume I, Chapter 16).  The role of government has always been a hot topic with Americans.  The Federalist Papers tries to establish legislative, executive and judicial boundaries for a federal government before the federal government even existed.  By the mid-1830’s Tocqueville could make this observation about the size and scope of the “central government” of the United States: In the American republics the central government has never as yet busied itself except with a small number of objects, sufficiently prominent to attract its attention. The secondary affairs of society have never been regulated by its authority…  Fast forward almost two hundred years.  Some things have changed but Americans are still debating the boundaries of government.  This is a healthy debate and is actually a vital necessity in a democracy.  We need to have this talk and we need to do it in an open and honest debate.  The question in this reading selection is: who is qualified to participate?  The obvious answer for modern Americans: everyone.  We are all equal under the law and everyone’s voice should be heard.  Fine.  Let’s listen to everyone.  But Tocqueville thinks lawyers are uniquely qualified to articulate the values that should be embedded in American government.  Why?  Because Men (and women) who have made a special study of the laws derive from this 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.  People don’t usually associate “habits of order” and “a taste for formalities” with your average American.  And Americans generally don’t think of themselves as being governed by “the unreflecting passions of the multitude.”  This is just a small step up from mob rule.  But consider for a moment the ideal of Law versus the reality of law.  Americans think The Law should be fair for everyone.  Fair enough.  Pick up a volume of the U.S. Code or almost any law book.  After reading a few pages stop and ask: is this fair?  Who knows?  To confuse the issue even more, ask: what does all this stuff mean?  Again, who knows?  The answer: lawyers.  Maybe.  If lawyers don’t know, then judges.  If judges can’t agree, then the Supreme Court will tell us.  What’s going on here?  How can Americans debate about government if we can’t even understand the terminology?  Tocqueville seems to believe that Americans can debate all they want.  But the real work (decision-making) is really being done by lawyers and politicians.  Tocqueville writes that 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.  This is not a very flattering view; either of lawyers or of the American public.  Nevertheless, if it’s true then lawyers do have an overwhelming impact on the development of American society.  Is this a good thing or a bad thing?  That depends on your point of view.  Tocqueville paints a picture of lawyers as forming a virtual aristocracy of values within the midst of democratic sentiments.  He puts it this way: 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.  Every red-blooded American tells him that democracy is a good thing.  But what they really mean is: democracy is a good thing (when “the American people” agree with me).  When the majority is on my side, I want to take a vote.  And whoever gets the most votes wins.  When the majority is against me, I don’t want a vote.  I want to pass a law.  This observation may be unfair to lawyers.  It may be unfair to the American people.  But it’s what Tocqueville saw when he visited the United States in the 1830’s. Ask yourself: are things different in America today?  Or was Tocqueville’s analysis basically correct?