Democracy in America is arguably the most seminal work of political science ever written, and definitely one of the most prescient.
Its first volume appeared in 1835, 190 years ago and only 59 years into America’s life as an independent country. And yet much of the book reads as today’s reportage.
This isn’t to say I find all of Tocqueville’s political philosophy of equal value, but, when reading a significant book on any subject, my tendency is to concentrate on the points that make it significant. In this case too, rather than arguing with many of Tocqueville’s contentious ideas, we could all learn from his sage observations.
It was Tocqueville who first explained to Americans that what they had created wasn’t exactly what they had set out to create. Democracy, not mixed republican government, was central to American politics. However, unlike both Jefferson and Adams who deplored that development, Tocqueville rather welcomed it.
But not without reservations, and I find these more interesting than the praise. Tocqueville believed that only democracy could find a proper balance between equality and liberty. However, he was aware of the problem that has since become as evident as it is ubiquitous:
“But one also finds in the human heart a depraved taste for equality, which impels the weak to want to bring the strong down to their level, and which reduces men to preferring equality in servitude to inequality in freedom.”
Tocqueville knew that not only political liberty might suffer as a result, but also intellectual freedom: “The majority has enclosed thought within a formidable fence. A writer is free inside that area, but woe to the man who goes beyond it.”
As a result, Tocqueville could think of no other country where there was “less independence of mind, and true freedom of discussion, than in America.” It was mainly in that sense that he spoke of “the tyranny of the majority”, a phrase also used by another champion of liberty, if a less nuanced thinker, John Stuart Mill.
While writing about America, Tocqueville always had his native France in the back of his mind. He was hoping France and other European countries would transplant America’s good features while remaining immune to the bad ones. His hopes have so far remained forlorn, and, largely as an effect of unchecked democracy, the West shows every day how little attention it has paid to Tocqueville’s caveats.
Many of his observations were both eagle’s-eye accurate and crystal-ball prescient. Pointing out that most people in the US government were lawyers by trade, Tocqueville feared that American politics would become excessively legalistic as a result:
“Scarcely any political question arises in the United States that does not turn, sooner or later, into a judicial question.”
True enough, of the 56 signatories to the Declaration of Independence, 25 were lawyers, as were 31 of the 55 members in the Continental Congress. That situation hasn’t changed much: 51 out of the 100 US senators were trained as lawyers. Although the percentage is somewhat lower in the House, Tocqueville’s numerical observation still holds.
What he didn’t anticipate, and neither did anyone else, is the amount of judiciary activism in the US (and, these days, elsewhere), with judges acting as political players, not just referees. They turn political questions into judicial ones not to protect constitutional purity but, as often as not, to usurp political power.
In fact, that practice is so widespread that political motives are impugned even to purely legal decisions. Thus, the predominantly leftwing press was up in arms about the Supreme Court’s decision to reverse Roe vs. Wade. Pundits insisted the judges had ruled that way out of conservative (or religious fundamentalist, take your pick) distaste for abortion.
In fact, Their Honours merely scrutinised the federal Constitution and decided that nothing in it could be interpreted as an argument for or against abortion. Hence it was up to the states and not the central government to legislate the issue.
During his first post-inauguration hours, Trump fired a volley of executive orders at everything progressive mankind holds dear and sane mankind abhors. The President is clearly intent on pushing executive power to (some will say beyond) its constitutional limit. Considering that he has a majority in both Houses, political opposition is too weak to stop the Trump juggernaut.
That’s why massive legal regiments have been thrown into battle, trying to do exactly what worried Tocqueville: turn political questions into judiciary ones. That continues the tendency that took shape during Trump’s campaign, when the opposition often relied not on political arguments but on questionable legal tactics to get ahead.
That Trump’s order to deny birthright citizenship to children of illegal immigrants would be challenged in court was clear even to me, a rank amateur in such matters. Birthright citizenship regardless of the parents’ residence status is guaranteed by the 14th Amendment, and it would take another amendment to overturn it. That’s a lengthy process at best, and Trump has neither the time nor probably the votes to succeed.
Just as the aforementioned rank amateur predicted, 22 states have filed legal challenges and lawsuits, probably meaning that sound idea will bite the dust. I can’t say I’m upset: as the Romans used to say, dura lex, sed lex – the law is harsh, but it is the law. And it’s the law that should rule a civilised country, not a ruler full of sound ideas.
Also finding itself at the end of a lawsuit is Elon Musk’s DOGE, the outfit charged with the worthy mission of cleaning up the Augean Stables of the federal payrolls. The lawsuit filed by National Security Counsellors takes exception to DOGE’s lack of transparency.
Apparently, a federal advisory committee, which is what DOGE is, is supposed to keep regular minutes of meetings and allow public access, whereas Musk would rather do his work in camera.
That’s supposed to violate the Federal Advisory Committee Act, and I’m sure lawyers on both sides will have a well-paid field day arguing the toss. But I suppose DOGE could sidestep this one suit by making some concessions and continue to do its important work. I wish a less hideous character than Musk were in charge, but it is what it is.
The lawsuit filed by the National Treasury Employees Union may be harder to dismiss. Trump’s worthy intention is to sack tens of thousands of federal employees he sees – correctly, I think – as useless, actually harmful, leeches on the body of the public finances.
But it was predictable that getting rid of so many people would run into legal challenges, both individual and class suits. To speed matters up, Trump reinstated Schedule F, reclassifying all those employees as political hires and therefore sackable when the politics changed. If the government succeeds in reclassifying them in that manner, the employees will lose the right to appeal, which the union says is unprecedented and diabolical.
And so it goes, the legal merry-go-round spinning and gathering momentum as it goes. Some objections to Trump’s policies raise legitimate constitutional concerns, but most are simply legal sticks thrust into the spokes of political wheels.
They may not stop the juggernaut, but they can certainly slow it down, and Trump only has four years to implement his policies. So prepare yourselves for a whole bunch of further suits, some legitimate, most frivolous.
I hope Trump can chart a safe course through the legal reefs, but that’s not my subject today. I’m simply marvelling at Tocqueville’s sagacity. He noticed almost two centuries ago the seeds that have since sprouted into mighty trees.
If he suddenly came back, he’d look at today’s America and utter the aphorism coined by his contemporary, Jean-Baptiste Alphonse Karr: “Plus ça change, plus c’est la même chose”.