280 CONSTITUTION OF THE U. STATES. [BOOK III.
ELECTIONS AND MEETINGS OF CONGRESS.
§ 812. THE first clause of the fourth section of the first
article is as
follows: "The times, places, and manner of holding elections for senators
and representatives shall be prescribed in each state by the legislature
thereof. But the congress may, at any time, by law, make or alter such
regulations except as to the place of choosing senators."
§ 813. This clause does not appear to have attached much attention, or to
have encountered much opposition in the convention, at least so far as can
be gathered from the journal of that body.1 But it was afterwards
assailed by the opponents of the constitution, both in and out of the state
conventions, with uncommon zeal and virulence. The objection was not to
that part of the clause, which vests in the state legislatures the power of
prescribing the times, places, and manner of holding elections; for, so
far, it was a surrender of power to the state governments. But it was, to
the superintending power of congress to make, or alter such regulations. It
was said, that such a superintending power would be dangerous to the
liberties of the people, and to a just exercise of their privileges in
elections. Congress might prescribe the times of election so unreasonably,
as to prevent the attendance of the electors; or the place at so
inconvenient a distance from the body of the electors, as to prevent a due
exercise of the right of choice. And congress might contrive the manner of
holding elections, so as to exclude all but their own
1 Journal of Congress 218, 240; Id. 354, 374.
CH. XI.] ELECTIONS. 281
favourites from office. They might modify the right of election, as they
please; they might regulate the number of votes by the quantity of
properly, without involving any repugnancy to the constitution.1 These,
and other suggestions of a similar nature, calculated to spread terror and
alarm among the people, were dwelt on with peculiar emphasis.
§ 814. In answer to all such reasoning, it was urged, that
there was not a
single article in the whole system more completely defensible. Its
propriety rested upon this plain proposition, that every government ought
to contain in itself the means of its own preservation.2 If, in the
constitution, there were some departures from this principle, (as it might
be admitted there were,) they were matters of regret, and dictated by a
controlling moral or political necessity; and they ought not to be
extended. It was obviously impracticable to frame, and insert in the
constitution an election law, which would be applicable to all possible
changes in the situation of the country, and convenient for all the states.
A discretionary power over elections must be vested somewhere. There seemed
but three ways, in which it could be reasonably organized. It might be
lodged either wholly in the national legislature; or wholly in the state
legislatures; or primarily in the latter, and ultimately in the former. The
last was the mode adopted by the convention. The regulation of elections is
submitted, in the first instance, to the local governments, which, in
ordinary cases, and when no improper views prevail, may both conveniently
1 1 Elliot's Debates, 43 to 50; Id. 53 to 68; 2 Elliot's Debates, 38, 39,
72, 149, 150; 3 Elliot's Debates, 57 to 74; 2 American Museum, 438; Id.
435; Id. 545; 3 American Museum, 432; 2 Elliot's Debates, 277.
2 The Federalist, No. 59; 2 Elliot's Debates, 276, 277.
282 CONSTITUTION OF THE U. STATES. [BOOK III.
be by them exercised. But, in extraordinary circumstances, the power is
reserved to the national government; so that it may not be abused, and thus
hazard the safety and permanence of the Union.1 Nor let it be thought,
that such an occurrence is wholly imaginary. It is a known fact, that,
under the confederation, Rhode-Island, at a very critical period, withdrew
her delegates from congress; and thus prevented some important measures
from being carried.2
§ 815. Nothing can be more evident, than that an exclusive
power in the
state legislatures to regulate elections for the national government would
leave the existence of the Union entirely at their mercy. They could, at
any time, annihilate it, by neglecting to provide for the choice of persons
to administer its affairs. It is no sufficient answer, that such an abuse
of power is not probable. Its possibility is, in a constitutional view,
decisive against taking such a risk; and there is no reason for taking it.
The constitution ought to be safe against fears of this sort; and against
temptations to undertake such a project. It is true, that the state
legislatures may, by refusing to choose senators, interrupt the operations
of the national government, and thus involve the country in general ruin.
But, because, with a view to the establishment of the constitution, this
risk was necessarily taken, when the appointment of senators was vested in
the state legislatures; still it did not follow, that a power so dangerous
ought to be conceded in cases, where the same necessity did not exist. On
the contrary, it became the duty of the convention, on this very account,
not to multiply the chances of mischievous attempts of this sort. The risk,
too, would be
1 The Federalist, No. 59; 2 Elliot's Debates, 38, 39; Id. 276, 277.
2 1 Elliot's Debates, 41, 45; The Federalist, No. 22.
CH. XI] ELECTIONS. 283
much greater in regard to an exclusive power over the elections of
representatives, than over the appointment of senators. The latter are
chosen for six years; the representatives for two years. There is a gradual
rotation of office in the senate, every two years, of one third of the
body; and a quorum is to consist of a mere majority. The result of these
circumstances would naturally be, that a combination of a few states, for a
short period, to intermit the appointment of senators would not interrupt
the operations or annihilate the existence of that body. And it is not
against permanent, but against temporary combinations of the states, that
there is any necessity to provide. A temporary combination might proceed
altogether from the sinister designs and intrigues of a few leading members
of the state legislatures. A permanent combination could only arise from
the deep-rooted disaffection of a great majority of the people; and, under
such circumstances, the existence of such a national government would
neither be desirable, nor practicable.1 The very shortness of the period
of the elections of the house of representatives might, on the other hand,
furnish means and motives to temporary combinations to destroy the national
government; and every returning election might produce a delicate crisis in
our national affairs, subversive of the public tranquillity, and
encouraging to every sort of faction.2
§ 816. There is a great distinction between the objects and
the people, and the political objects and interests of their rulers. The
people may be warmly attached to the Union, and its powers, and its
operations; while their representatives, stimulated by the natural
rivalship of power, and the hopes of personal
1 The Federalist, No. 59.
284 CONSTITUTION OF THE U. STATES. [BOOK III.
aggrandizement, may be in a very opposite temper, and artfully using all
their influence to cripple, or destroy the national government.1 Their
motives and objects may not, at first, be clearly discerned; but time and
reflection will enable the people to understand their own true interests,
and to guard themselves against insidious factions. Besides; there will be
occasions, in which the people will be excited to undue resentments against
the national government. With so effectual a weapon in their hands, as the
exclusive power of regulating elections for the national government, the
combination of a few men in some of the large states might, by seizing the
opportunity of some casual disaffection among the people, accomplish the
destruction of the Union. And it ought not to be overlooked, that as a
solid government will make us more and more an object of jealousy to the
nations of Europe, so there will be a perpetual temptation, on their part,
to generate intrigues of this sort for the purpose of subverting It.2
§ 817. There is, too, in the nature of such a provision, something
incongruous, if not absurd What would be said of a clause introduced into
the national constitution to regulate the state elections of the members of
the state legislatures? It would be deemed a most unwarrantable transfer of
power, indicating a premeditated design to destroy the state governments.3
It would be deemed so flagrant a violation of principle, as to require no
comment. It would be said, and justly, that the state governments ought to
possess the power of self-existence and self-organization, independent of
1 The Federalist, No. 59; 1 Elliot's Debates, 43 to 55; Id. 67, 68; 3
Elliot's Debates, 65.
2 The Federalist, No. 59.
CH. XI.] ELECTIONS. 285
the pleasure of the national government. Why does not the same reasoning
apply to the national government? What reason is there to suppose, that the
state governments will be more true to the Union, than the national
government will be to the state governments?
§ 818. If, then, there is no peculiar fitness in delegating
such a power
to the state legislatures; if it might be hazardous and inconvenient; let
us see, whether there are any solid dangers from confiding the
superintending and ultimate power over elections to the national
government. There is no pretence to say, that the power in the national
government can be used, so as to exclude any state from its share in the
representation in congress. Nor can it be said, with correctness, that
congress can, in any way, alter the rights, or qualifications of voters.
The most, that can be urged, with any show of argument, is, that the power
might, in a given case, be employed in such a manner, as to promote the
election of some favourite candidate, or favourite class of men, in
exclusion of others, by confining the places of election to particular
districts, and rendering it impracticable for the citizens at large to
partake in the choice. The whole argument proceeds upon a supposition the
most chimerical. There are no rational calculations, on which it can rest,
and every probability is against it. Who are to pass the laws for
regulating elections? The congress of the United States, composed of a
senate chosen by the state legislatures, and of representatives chosen by
the people of the states. Can it be imagined, that these persons will
combine to defraud their constituents of their rights, or to overthrow the
state authorities, or the state influence? The very attempt would rouse
universal indignation, and produce an immediate revolt among the great mass
of the peo-
286 CONSTITUTION OF THE U. STATES. [BOOK III.
ple, headed and directed by the state governments.1 And what motive could
there be, in congress, to produce such results? The very dissimilarity in
the ingredients, composing the national government, forbid even the
supposition of any effectual. combination for such a purpose. The
interests, the habits, the institutions, the local employments, the state
of property, the genius, and the manners, of the people of the different
states, are so various, and even opposite, that it would be impossible to
bring a majority of either house to agree upon any plan of elections, which
should favour any particular man, or class of men, in any state. In some
states, commerce is, or may be, the predominant interest; in others,
manufactures; in others, agriculture. Physical, as well as moral causes
will necessarily nourish, in different states, different inclinations and
propensities on all subjects of this sort. If there is any class, which is
likely to have a predominant influence, it must be either the commercial,
or the landed class. If either of these could acquire such an influence, it
is infinitely more probable, that it would be acquired in the state, than
in the national, councils.2 In the latter, there will be such a mixture
of all interests, that it will
be impracticable to adopt any rule for all the states, giving any
preference to classes or interests, founded upon sectional or personal
considerations. What might suit a few states well, would find a general
resistance from all the other states.
§ 819. If it is said, that the elections might be so managed,
as to give a
predominant influence to the wealthy, and the well-born, (as they are
insidiously called,) the supposition is not less visionary. What possible
mode is there to accomplish such a purpose?
1 The Federalist, No. 60.
CH. XI.] ELECTIONS. 287
The wealthy and the well-born are not confined to any particular spots in
any state; nor are their interests permanently fixed any where. Their
property may consist of stock, or other personal property, as well as of
land; of manufactories on great streams, or on narrow rivulets, or in
sequestered dells. Their wealth may consist of large plantations in the
bosom of the country, or farms on the borders of the ocean. How vain must
it be, to legislate upon the regulation of elections with reference to
circumstances so infinitely varied, and so infinitely variable. The very
suggestion is preposterous. No possible method of regulating the time,
mode, or place of elections, could give to the rich, or elevated, a
general, orpermanent advantage in the elections. The only practical mode
of accomplishing it, (that of a property qualification of voters, or
candidates,) is excluded in the scheme of the national government.1 And
if it were possible, that such a design could be accomplished to the injury
of the people at a single election, it is certain, that the unpopularity of
the measure would immediately drive the members from office, who aided in
it; and they would be succeeded by others, who would more justly represent
the public will and the public interests. A cunning, so shallow, would be
easily detected; and would be as contemptible from its folly, as it would
be difficult in its operations.
§ 820. Other considerations are entitled to great weight. The
gives to the state legislatures the power to regulate the time, place, and
manner of holding elections; and this will be so desirable a boon in their
possession, on account of their ability to adapt the regulation, from time
to time, to the peculiar local, or political convenience of the states,
that its represen-
1 The Federalist, No. 60.
288 CONSTITUTION OF THE U. STATES. [BOOK III.
tatives in congress will not be brought to assent to any general system by
congress, unless from an extreme necessity, or a very urgent exigency.
Indeed, the danger rather is, that when such necessity or exigency actually
arises, the measure will be postponed, and perhaps defeated, by the
unpopularity of the exercise of the power. All the states will, under
common circumstances, have a local interest, and local pride, in preventing
any interference by congress; and it is incredible, that this influence
should not be felt, as well in the senate, as in the house. It is not too
much, therefore, to presume, that it will not be resorted to by congress,
until there has been some extraordinary abuse, or danger in leaving it to
the discretion of the states respectively. And it is no small
recommendation of this supervising power, that it will naturally operate,
as a check upon undue state legislation; since the latter might precipitate
the very evil, which the popular opinion would be most solicitous to avoid.
A preventive of this sort, addressed a priori to state jealousy, and state
interest, would become a most salutary remedy, not from its actual
application, but from its moral influence.
§ 821. It was said, that the constitution might have provided,
elections should be in counties. This was true; but it would, as a general
rule, afford very little relief against a possible abuse; for counties
differ greatly in size, in roads, and in accommodations for elections; and
the argument, from possible abuse, is just as strong, even after such a
provision should be made, as before. If an elector were compellable to go
thirty, or fifty miles, it would discourage his vote, as much, as if it
were one hundred, or five hundred miles.1
1 The Federalist, No. 61. -- The full force of this reasoning will not be
perceived, without adverting to the fact, that though in New-England
CH. XI.] ELECTIONS. 289
The truth is, that congress could never resort to a measure of this sort
for purposes of oppression, or party triumph, until that body had ceased to
represent the will of the states and the people; and if, under such
circumstances, the members could still hold office, it would be, because a
general and irremediable corruption, or indifference pervaded the whole
community. No republican constitution could pretend to afford any remedy
for such a state of things.1
§ 822. But why did not a similar objection occur against the state
constitutions? The subject of elections, the time, place, and manner of
holding them, is in many cases left entirely to legislative discretion. In
New-York, the senators are chosen from four districts of great territorial
extent, each comprehending several counties; and it is not defined, where
the elections shall be had. Suppose the legislature should compel all the
electors to come to one spot in the district, as, for instance, to Albany,
the evil would be great; but the measure would not be unconstitutional.2
Yet no one practically entertains the slightest dread of such legislation.
In truth, all reasoning from such extreme possible cases is ill adapted to
convince the judgment, though it may alarm our prejudices. Such a
legislative discretion is not deemed an infirmity in the delegation of
constitutional power. It is deemed safe, because it can never be used
oppressively for any length of time,
the voters generally give their votes in the townships, where they reside.
In the southern and western states, there are few towns, and the elections
are held in the counties, where the population is sparse, and spread over
large plantation districts.*
1 2 Elliot's Debates, 38, 39.
2 The Federalist, No. 61.
* 1 Elliot's Debates, 68.
290 CONSTITUTION OF THE U. STATES. [BOOK III.
unless the people themselves choose to aid in their own degradation.
§ 823. The objections, then, to the provision are not sound,
The reasons in its favour are, on the other hand, of great force and
importance. In the first place, the power may be applied by congress to
correct any negligence in a state in regard to elections, as well as to
prevent a dissolution of the government by designing and refractory states,
urged on by some temporary excitements. In the next place, it will operate
as a check in favour of the people against any designs of a federal senate,
and their constituents, to deprive the people of the state of their right
to choose representatives. In the next place, it provides a remedy for the
evil, if any state, by reason of invasion, or other cause, cannot have it
in its power to appoint a place, where the citizens can safely meet to
choose representatives.1 In the last place, (as the plan is but an
experiment,) it may hereafter become important, with a view to the regular
operations of the general government, that there should be a uniformity in
the time and manner of electing representatives and senators, so as to
prevent vacancies, when there may be calls for extraordinary sessions of
congress. If such a time should occur, or such a uniformity be hereafter
desirable, congress is the only body possessing the means to produce it.2
§ 824. Such were the objections, and such was the reasoning,
by which they
were met, at the time of the adoption of the constitution. A period of
forty years has since passed by, without any attempt by congress
1 See 1 Elliot's Debates, 44, 47, 48, 49; Id. 55; Id. 67.
2 The Federalist, No. 61; 2 Elliot's Debates, 38, 39.
CH. XI.] ELECTIONS. 291
to make any regulations, or interfere in the slightest degree with the
elections of members of congress. If, therefore, experience can demonstrate
any thing, it is the entire safety of the power in congress, which it is
scarcely possible (reasoning from the past) should be exerted, unless upon
very urgent occasions. The states now regulate the time, the place, and the
manner of elections, in a practical sense, exclusively. The manner is very
various; and perhaps the power has been exerted, in some instances, under
the influence of local or party feelings, to an extent, which is
indefensible in principle and policy. There is no uniformity in the choice,
or in the mode of election. In some states the representatives are chosen
by a general ticket for the whole state; in others they are chosen singly
in districts; in others they are chosen in districts composed of a
population sufficient to elect two or three representatives; and in others
the districts are sometimes single, and sometimes united in the choice. In
some states the; candidate must have a majority of all the votes to entitle
him to be deemed elected; in others (as it is in England) it is sufficient,
if he has a plurality of votes. In some of the states the choice is by the
voters viva voce, (as it is in England;) in others it is by ballot.1 The
times of the elections are quite as various; sometimes before, and
sometimes after the regular period, at which the office becomes vacant.
That this want of uniformity, as to the time and mode of election, has been
productive of some inconveniences to the public service, cannot be doubted;
for it has sometimes occurred, that at an extra session a whole state has
been deprived of its vote; and at the regular ses-
1 1 Tucker's Black. Comm. App. 192.
292 CONSTITUTION OF THE U. STATES. [BOOK III.
sions some districts have failed of being represented upon questions vital
to their interests. Still, so strong, has been the sense of congress of the
importance of leaving these matters to state regulation, that no effort has
been hitherto made to cure these evils; and public opinion has almost
irresistibly settled down in favour of the existing system.1
§ 825. Several of the states, at the time of adopting the
proposed amendments on this subject; but none were ever subsequently
proposed by congress to the people; so that the public mind ultimately
acquiesced in the reasonableness of the existing provision. It is
remarkable, however, that none of the amendments proposed in the state
conventions purported to take away entirely the superintending power of
congress; but only restricted it to cases, where a state neglected,
refused, or was disabled to exercise the power of regulating elections.2
§ 826. It remains only to notice an exception to the power of
this clause. It is, that congress cannot alter, or make regulations, "as to
the place of choosing senators." This exception is highly reasonable. The
choice is to be made by the state legislature; and it would not be either
necessary, or becoming in congress to prescribe the place, where it should
sit. This exception was not in the revised draft of the constitution; and
was adopted almost at the close of the convention; not, however, without
some opposition, for nine states were in its favour, one against it, and
one was divided.3
1 Tucker's Black. Comm. App. 191, 192.
2 See Journal of Convention, Supplement, p. 402, 411, 418, 425, 433, 447,
3 Journal of Convention, 351, 374.
CH. XI.] MEETINGS OF CONGRESS. 293
§ 827. The second clause of the fourth section of the first
article is as
follows "The congress shall assemble at least once in every year; and such
meeting shall be on the first Monday in December, unless they shall by law
appoint a different day." This clause, for the first time, made its
appearance in the revised draft of the constitution near the close of the
convention; and was silently adopted, and, so far as can be perceived,
without opposition. Annual parliaments had been long a favourite opinion
and practice with the people of England; and in America, under the colonial
governments, they were justly deemed a great security to public liberty.
The present provision could hardly be overlooked by a free people, jealous
of their rights; and therefore the constitution fixed a constitutional
period, at which congress should assemble in every year, unless some other
day was specially prescribed. Thus, the legislative discretion was
necessarily bounded; and annual sessions were placed equally beyond the
power of faction, and of party, of power, and of corruption. In two of the
states a more frequent assemblage of the legislature was known to exist.
But it was obvious, that from the nature of their duties, and the distance
of their abodes, the members of congress ought not to be brought together
at shorter periods, unless upon the most pressing exigencies. A provision,
so universally acceptable, requires no vindication, or commentary.1
§ 828. Under the British constitution, the king has the sole
convene, and prorogue, and dissolve parliament. And although it is now
usual for parliament to assemble annually, the power of prorogation may be
applied at the king's pleasure, so as to prevent
1 The Federalist, No. 52.
294 CONSTITUTION OF THE U. STATES. [BOOK III.
any business from being done. And it is usual for the king, when he means,
that parliament should assemble to do business, to give notice by
proclamation accordingly; otherwise a prorogation is of course on the first
day of the session.1
§ 829. The fifth section of the first article embraces provisions
principally applicable to the powers, rights, and duties of each house in
its separate corporate character. These will not require much illustration
or commentary, as they are such, as are usually delegated to all
legislative bodies in free governments; and were in practice in
Great-Britain at the time of the emigration of our ancestors; and were
exercised under the colonial governments, and have been secured and
recognised in the present state constitutions.
§ 830. The first clause declares, that "each house shall be
the judge of
the elections, returns, and qualifications of its own members, and a
majority of each shall constitute a quorum to do business; but a smaller
number may adjourn from day to day, and may be authorized to compel the
attendance of absent members, in such manner, and under such penalties, as
each house may provide."
§ 831. It is obvious, that a power must be lodged somewhere to
the elections, returns, and qualifications of the members of each house
composing the legislature; for otherwise there could be no certainty, as to
who were legitimately chosen members, and any intruder, or usurper, might
claim a seat, and thus trample upon the rights, and privileges, and
liberties of the people. Indeed, elections would become, under such
1 1 Black. Comm. 187, 188, and Christian's Note; 2 Wilson's Law Lect. 151, 155.
CH. XI.] MEETINGS OF CONGRESS. 295
circumstances, a mere mockery; and legislation the exercise of sovereignty
by any self-constituted body. The only possible question on such a subject
is, as to the body, in which such a power shall be lodged. If lodged in any
other, than the legislative body itself, its independence, its purity, and
even its existence and action may be destroyed, or put into imminent
danger. No other body, but itself, can have the same motives to preserve
and perpetuate these attributes; no other body can be so perpetually
watchful to guard its own rights and privileges from infringement, to
purify and vindicate its own character, and to preserve the rights, and
sustain the free choice of its constituents. Accordingly, the power has
always been lodged in the legislative body by the uniform practice of
England and America.1
§ 832. The propriety of establishing a rule for a quorum for
of business is equally clear; since otherwise the concerns of the nation
might be decided by a very small number of the members of each body. In
England, where the house of commons consists of nearly six hundred members,
the number of forty-five constitutes a quorum to do business.2 In some of
the state constitutions a particular number of the members constitutes a
quorum to do business; in others, a majority is required. The constitution
of the United States has wisely adopted the latter course; and thus, by
requiring a majority for a quorum, has secured the public from any hazard
of passing laws by surprise, or against the deliberate opinion of a
majority of the representative body.
1 1 Black. Comm. 163, 178, 179; Rawle on the Constitution, ch. 4, p. 46; 1
Kent. Comm. 220; 2 Wilson's Law Lect. 153, 154.
2 1 Tucker's Black. Comm. App. 201, 202, 203, 229. -- I have not been able
to find in any books within my reach, whether any particular quorum is
required in the house of lords.
296 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 833. It may seem strange, but it is only one of many proofs of the
extreme jealousy, with which every provision in the constitution of the
United States was watched and scanned, that though the ordinary quorum in
the state legislatures is sometimes less, and rarely more, than a majority;
yet it was said, that in the congress of the United States more than a major
ity ought to have been required; and in particular cases, if not in all,
more than a majority of a quorum should be necessary for a decision. Traces
of this opinion, though very obscure, may perhaps be found in the
convention itself.1 To require such an extraordinary quorum for the
decision of questions would, in effect, be to give the rule to the
minority, instead of the majority; and thus to subvert the fundamental
principle of a republican government. If such a course were generally
allowed, it might be extremely prejudicial to the public interests in
cases, which required new laws to be passed, or old ones modified, to
preserve the general, in contradistinction to local, or special interests.
If it were even confined to particular cases, the privilege might enable an
interested minority to screen themselves from equitable sacrifices to the
general weal; or, in particular cases, to extort undue indulgences. It
would also have a tendency to foster and facilitate the baneful practice of
secession, a practice, which has shown itself even in states, where a
majority only is required, which is subversive of all the principles of
order and regular government, and which leads directly to public
convulsions, and the ruin of republican institutions.2
1 The Federalist, No. 58; Journal of Convention, 218, 242.
2 The Federalist, No. 22, 58.
CH. XI.] MEETINGS OF CONGRESS. 297
§ 834. But, as a danger of an opposite sort required equally to
against, a smaller number is authorized to adjourn from day to day, thus to
prevent a legal dissolution of the body, and also to compel the attendance
of absent members.1 Thus, the interests of the nation, and the despatch
of business, are not subject to the caprice, or perversity, or negligence
of the minority. It was a defect in the articles of confederation,
sometimes productive of great public mischief, that no vote, except for an
adjournment, could be determined, unless by the votes of a majority of the
states;2 and no power of compelling the attendance of the requisite
1 Journal of Convention, 218, 242; 4 Instit. 43, 49.
2 Confederation, art.9; 1 Elliot's Debates, 44, 45; The Federalist, No. 22.