How the principle of the sovereignty of the people should be understood. Impossibility of conceiving a mixed government. Sovereign power must be placed somewhere. Precautions which one should take to moderate its action. These precautions have not been taken in the United states. Result thereof.
I regard it as an impious and detestable maxim that in matters of government the majority of a people has the right to do everything, and nevertheless I place the origin of all powers in the will of the majority. Am I in contradiction with myself?
There is one law which has been made, or at least adopted, not by the majority of this or that people, but by the majority of all men. That law is justice.
Justice therefore forms the boundary to each peoples right.
A nation is like a jury entrusted to represent universal society and to apply the justice which is its law. Should the jury representing society have greater power than that very society whose laws it applies?
Consequently, when I refuse to obey an unjust law, I by no means deny the majority's right to give orders; I only appeal from the sovereignty of the people to the sovereignty of the human race.
There are those not afraid to say that in matters which only concern itself a nation cannot go completely beyond the bounds of justice and reason and that there is therefore no need to fear giving total power to the majority representing it. But that is the language of a slave.
What is a majority, in its collective capacity, if not an individual with opinions, and usually with interests, contrary to those of another individual, called the minority?.Now, if you admit that a man vested with omnipotence can abuse it against his adversaries, why not admit the same concerning a majority?.Have men, by joining together, changed their charac-ter?.By becoming stronger, have they become more patient of obstacles?.For my part, I cannot believe that, and I will never grant to several that power to do everything which I refuse to a single man.
It is not that I think that in order to preserve liberty one can mix several principles within the same government in such a way that they will be really opposed to one another.
I have always considered what is called a mixed government to be a chimera. There is in truth no such thing as a mixed government (in the sense usually given to the words), since in any society one finds in the end some principle of action that dominates all the others. Eighteenth-century England, which has been especially cited as in example of this type of government, was an essentially aristocratic state, although it contained within itself great elements of democracy, for laws and mores were so designed that the aristocracy could always prevail in the long run and manage public affairs as it wished.
The mistake is due to those who, constantly seeing the interests of the great in conflict with those of the people, have thought only about the struggle and have not paid attention to the result thereof, which was more important. When a society really does have a mixed government, that is to say, one equally shared between contrary principles, either a revolution breaks out or that society breaks up.
I therefore think it always necessary to place somewhere one social power superior to all others, but I believe that freedom is in danger when that finds no obstacles that can restrain its course and give it time to moderate itself.
Omnipotence in itself seems a bad and dangerous thing. I think that its exercise is beyond man's strength, whoever he be, and that only God can be omnipotent without danger because His wisdom and justice are always equal to His power. So there is no power on earth in itself so worthy of respect or vested with such a sacred right that I would wish to let it act without control and dominate without obstacles. So when I see the right and capacity to do all given to any authority whatsoever, whether it be called people or king, democracy or aristocracy, and whether the scene of the action is a monarchy or a republic, I say: the germ of tyranny is there, and I will go look for other laws under which to live.
My greatest complaint against democratic government as organized in the United States is not, as many Europeans make out, its weakness, but rather its irresistible strength. What I find most repulsive in America is not the extreme freedom reigning there but the shortage of guarantees against tyranny.
When a man or a party suffers an injustice in the United States, to whom can he turn?.To public opinion?.That is what forms the majority. To the legislative body?.It represents the majority and obeys it blindly. To the legislative power?.It is appointed by the majority and serves as its passive instrument. To the police?.They are nothing but the majority under arms. A jury?.The jury is the majority vested with the right to pronounce judgment; even the judges in certain states are elected by the majority. So, however iniquitous or unreasonable the measure which hurts you, you must submit.
But suppose you were to have a legislative body so composed that it represented the majority without being necessarily the slave of its passions, an executive power having a strength of its own, and a judicial power Independent of the other two authorities; then you would still have a democratic government, but there would be hardly any remaining risk of tyranny.
I am not asserting that at the present time in America there are frequent acts of tyranny. I do say that one can find no guarantee against it there and that the reasons for the government's gentleness must be sought in circumstances and in mores rather than in the laws.
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