SCROTUS: Supreme Court (Repugnant) of the US, Notes before the second civil war # 10

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 SCROTUS – Supreme Court (Repugnant) of the United States, Notes before the second civil war # 10

 I will translate this wall to wall carpet of quotations shamelessly.  Democracy in America was written by my brother from another era, Alexis de Tocqueville. He alone will tell you exactly what is going on in the USA today. The accuracy of his long-range predictions may be as surprising to you as they were to me. A few of my author notes will snap us back into 2024, whenever Alexis starts praising American courts of the 1830s. Otherwise, apart from the page title and this paragraph, this text is entirely his.

https://fr.wikisource.org/wiki/De_la_d%C3%A9mocratie_en_Am%C3%A9rique/%C3%89dition_1848/Tome_2/Deuxi%C3%A8me_partie/Chapitre_10

 So the aristocratic judge finds steady support in society just as much as in government.

 … He works as much for the future as for the present. The aristocratic judge is therefore pushed toward the same goal all the time, by the passions of the governed, by his own, and I could almost add  by the passions of posterity.

If you ask me where I would  place American aristocracy, I wouldn’t hesitate to say: it is not among the rich. No common bond brings them together. The American aristocracy is at the bar of lawyers and judges.

The more we reflect on what is happening in the United States, the more convinced we become that the body of lawyers in this country forms the most powerful and, so to speak, the only counterweight to democracy.

In the United States, we can easily tell that the legal spirit -- by its qualities and I might even say by its faults -- can neutralize the vices of popular government [author’s note: or its virtues].

When Americans intoxicate themselves with their passions, or indulge in the promotion of ideas, lawyers apply an almost invisible brake to moderate and stop them. To the people’s democratic instincts, they secretly oppose their aristocratic inclination; to its love of novelty, their superstitious respect for what is old; to the immensity of its designs, their narrow views; to its contempt for rules, their taste for forms; and to its enthusiasm, their habit of proceeding slowly.

The courts are the most visible organs the legal profession uses to influence democracy.

Judges are lawyers who, alongside their taste for order and rules acquired from the study of law, still draw love of stability from the fixed nature of their function. Their legal knowledge secures them a high position among their peers already; political power ends up elevating them to distinctive rank and the instincts of a privileged class.

Armed with the right to declare laws unconstitutional, American judges are always into political affairs. They cannot force the people to make laws, but they can at least force them to keep the faith in their own law and keep agreeing with each other.

…

There is hardly a political question in the United States that is not resolved sooner or later as a legal question. Thus all parties, in their daily controversies, must borrow ideas and language from justice. Since most public figures are, or have been, lawyers, they bring their own customs and range of thought to their handling of affairs. The jury completes this familiarization process for every class. So judicial language almost becomes common language. Thus the legal spirit, born in schools and courts, gradually spreads beyond them. It infiltrates society, so to speak; it descends to the lowest ranks; and the entire people ends up engaging in some of a judge’s tastes and habits.

Lawyers in the United States form a power base that is little feared, that we barely see, with no banner of its own, which bends flexibly to the demands of the time, and lets go without resistance against the arrangements of the social body. But they wrap around the entire society, penetrate each class that composes it; work on it in secret, act on it all the time without it knowing, and end up molding it to their desires.

De Tocqueville, Alexis, De la démocratie an Amérique, volumes 1 et 2, Préface d’André Jardin, Editions Gallimard, 1986.

I believe, however, that we are far away from the  time when federal power, incapable of protecting its own existence and giving the country peace, will somehow die of its own accord. Union is among our values, we want  it; its results are obvious, its benefits are evident. When we realize that a weak federal government jeopardizes  the Union, I have no doubt we will see the rise of a reactionary movement in favor of force. The government of the United States, of all the federal governments established up to now, is the one most naturally destined to act. As long as it is attacked only indirectly by the interpretation of laws, as long as its substance is not deeply altered, a change of opinion, an internal crisis, a war, could suddenly restore its needed vigor.

What I wanted  to note here is just this: many of our people assume there is a movement in the United States in favor of centralizing power in the hands of the president and Congress. I claim we can find notable movement in the opposite direction. Far from the federal government gaining strength as it matures, and threatening State sovereignty, I claim that it tends to weaken daily and that Union sovereignty is the only thing in danger. This is what the present [in the 1830s] shows us. What will be the final outcome of this trend; what events can stop, delay or hasten this movement as described? The future conceals those answers, and I do not pretend I could lift that veil.

If republican principles are to perish in America, they will only succumb after a long bout of social work, frequently interrupted, often resumed. Several times they will come back to life, and will only disappear for good once an entirely new people takes the place of that today. However, nothing suggests such a revolution, no sign announces it. [time flies] 

... There are, in terms of political institutions, two kinds of instability we should not confuse: the first one deals with secondary laws; it can rule for a long time in a well-established society; the other often shakes the very foundations of the constitution, and attacks the generating principles of law. This is always followed by unrest and revolution; the nation that suffers from it is in a violent and transitory state. … 

…

However, I believe that by changing their administrative processes as often as they do, the people of the United States jeopardize the future of republican government.

Their projects hampered without cease by the nonstop flexibility of legislation, it is to be feared that men will end up considering the republic as an inconvenient way to live in society. Then the evil that results from the instability of secondary laws could call into question the existence of fundamental laws, and bring about a revolution indirectly; but this age is still very far from us. 

 What we can predict right now is that in abandoning the republic, Americans would quickly shift to despotism without stopping very long at monarchy. … In the United States, judges are not elected by a particular class of citizen, but by the nation's majority; they immediately represent the passions of the multitude, and depend entirely on its wishes. Therefore they inspire neither hatred nor fear. I also point out the little care that has been taken to limit their power by drawing limits around their actions, and the immense space that  has been left open to their vagary. This order of things  creates habits that might outlast it. An American judge could keep his power indefinitely by ceasing to be responsible, and it is impossible to tell where tyranny would stop at that point. 

However, I cannot claim that one day Americans won’t manage to limit the circle of political rights at home, or confiscate these same rights for the benefit of one man; but I cannot believe that they will ever entrust the exclusive use of it to a particular class, or, in other words, that they will install an aristocracy.

An aristocratic body is made up of a certain number of citizens who, without straying very far from the crowd, nevertheless  rises above it forever; that we can touch yet cannot hit; with whom we mingle every day, yet for whom we cannot be mistaken.

An aristocracy, to last, must institute inequality in principle, legalize it in advance, and introduce it into the family even while it spreads throughout society. All these things so repugnant to natural equity that they can only be gotten from people by force.

…

... But a people who, starting from civilization and democracy, gradually draws nearer to inequality, and winds up establishing core privileges and exclusive categories: that would be a new thing in the world.

 …

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