Archive for February, 2010


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I’m becoming a CSPAN junkie. I’m currently watching:

” House Hearing on Insurance Premium Increases by Anthem Blue Cross

Rep. Bart Stupak (D-MI) chaired a Commerce Subcommittee on Oversight and Investigations hearing on recent health insurance rate increases by Anthem Blue Cross, a subsidiary of WellPoint Incorporated. The increases, reported to be as high as 39 percent, primarily affect individuals in California. ”

I actually find this fascinating and will probably watch the bi-partisan health care summit tomorrow night

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Toqueville on Free Press and Freedom of Association

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“Freedom of Association”:

From Book 1, Chapter 12, “Political Associations in the United States”

The more I consider the independence of the press in its principal consequences, the more am I convinced that in the modern world it is the chief
and, so to speak, the constitutive element of liberty. A nation that is determined to remain free is therefore right in demanding, at any price, the exercise of this independence. But the unlimited liberty of political association cannot be entirely assimilated to the liberty of the press. The one is at the same time less necessary and more dangerous than the other. A nation may confine it within certain limits without forfeiting any part of its self-directing power; and it may sometimes be obliged to do so in order to maintain its own authority.

In America the liberty of association for political purposes is unlimited. An example will show in the clearest light to what an extent this privilege is tolerated.

The question of a tariff or free trade has much agitated the minds of Americans. The tariff was not only a subject of debate as a matter of opinion, but it affected some great material interests of the states. The North attributed a portion of its prosperity, and the South nearly all its sufferings, to this system. For a long time the tariff was the sole source of the political animosities that agitated the Union.

In 1831, when the dispute was raging with the greatest violence, a private citizen of Massachusetts proposed, by means of the newspapers, to all the enemies of the tariff to send delegates to Philadelphia in order to consult together upon the best means of restoring freedom of trade. This proposal circulated in a few days, by the power of the press, from Maine to New Orleans. The opponents of the tariff adopted it with enthusiasm; meetings were held in all quarters, and delegates were appointed. The majority of these delegates were well known, and some of them had earned a considerable degree of celebrity. South Carolina alone, which afterwards took up arms in the same cause, sent sixty-three delegates. On the 1st of October 1831 this assembly, which, according to the American custom, had taken the name of a Convention, met at Philadelphia; it consisted of more than two hundred members. Its debates were public, and they at once assumed a legislative character; the extent of the powers of Congress, the theories of free trade, and the different provisions of the tariff were discussed. At the end of ten days the Convention broke up, having drawn up an address to the American people in which it declared (1 ) that Congress had not the right of making a tariff, and that the existing tariff was unconstitutional; (2) that the prohibition of free trade was prejudicial to the interests of any nation, and to those of the American people especially.

It must be acknowledged that the unrestrained liberty of political association has not hitherto produced in the United States the fatal results that might perhaps be expected from it elsewhere. The right of association was imported from England, and it has always existed in America; the exercise of this privilege is now incorporated with the manners and customs of the people. At the present time the liberty of association has become a necessary guarantee against the tyranny of the majority. In the United States, as soon as a party has become dominant, all public authority passes into its hands; its private supporters occupy all the offices and have all the force of the administration at their disposal. As the most distinguished members of the opposite party cannot surmount the barrier that excludes them from power, they must establish themselves outside of it and oppose the whole moral authority of the minority to the physical power that domineers over it. Thus a dangerous expedient is used to obviate a still more formidable danger.

The omnipotence of the majority appears to me to be so full of peril to the American republics that the dangerous means used to bridle it seem to be more advantageous than prejudicial. And here I will express an opinion that may remind the reader of what I said when speaking of the freedom of townships. There are no countries in which associations are more needed to prevent the despotism of faction or the arbitrary power of a prince than those which are democratically constituted. In aristocratic nations the body of the nobles and the wealthy are in themselves natural associations which check the abuses of power. In countries where such associations do not exist, if private individuals cannot create an artificial and temporary substitute for them I can see no permanent protection against the most galling tyranny; and a great people may be oppressed with impunity by a small faction or by a single individual.

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Toqueville on the Judiciary

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From Book I, Chapter VI

The Americans have retained these three distinguishing characteristics of the judicial power: an American judge can pronounce a decision only when litigation has arisen, he is conversant only with special cases, and he cannot act until the cause has been duly brought before the court. His position is therefore exactly the same as that of the magistrates of other nations, and yet he is invested with immense political power. How does this come about? If the sphere of his authority and his means of action are the same as those of other judges, whence does he derive a power which they do not possess? The cause of this difference lies in the simple fact that the Americans have acknowledged the right of judges to found their decisions on the Constitution rather than on the laws. In other words, they have permitted them not to apply such laws as may appear to them to be unconstitutional.

I am aware that a similar right has been sometimes claimed, but claimed in vain, by courts of justice in other countries; but in America it is recognized by all the authorities; and not a party, not so much as an individual, is found to contest it. This fact can be explained only by the principles of the American constitutions. In France the constitution is, or at least is supposed to be, immutable; and the received theory is that no power has the right of changing any part of it.1 In England the constitution may change continually,2 or rather it does not in reality exist; the Parliament is at once a legislative and a constituent assembly. The political theories of America are more simple and more rational. An American constitution is not supposed to be immutable, as in France; nor is it susceptible of modification by the ordinary powers of society, as in England. It constitutes a detached whole, which, as it represents the will of the whole people, is no less binding on the legislator than on the private citizen, but which may be altered by the will of the people in predetermined cases, according to established rules. In America the Constitution may therefore vary; but as long as it exists, it is the origin of all authority, and the sole vehicle of the predominating force.

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