Commentaries on the Constitution of the United States, by Joseph Story, 1833
Volume 3, Chapter 11, 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 favorites from office. They might modify the right of election, as they please; they might regulate the number of votes by the quantity of property, without involving any repugnancy to the constitution.2 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.3 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 and satisfactorily 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.4 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.5
§ 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 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.6 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.7
§ 816. There is a great distinction between the objects and interests of 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 aggrandizement, may be in a very opposite temper, and artfully using all their influence to cripple, or destroy the national government.8 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.9
§ 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.10 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 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 favorite candidate, or favorite 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 people, headed and directed by the state governments.11 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 favor 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.12 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? 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, or permanent 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.13 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 constitution 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 representatives 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, that the 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.14 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.15
§ 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.16 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, unless the people themselves choose to aid in their own degradation.
§ 823. The objections, then, to the provision are not sound, or tenable. The reasons in its favor 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 favor 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.17 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. 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.18
§ 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 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 [in parliamentary procedure, a voice vote or acclamation (from the Latin meaning: “with living voice” or “by word of mouth”)], (as it is in England;) in others it is by ballot.20 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 sessions 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 favor of the existing system.20
§ 825. Several of the states, at the time of adopting the constitution, 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.21
§ 826. It remains only to notice an exception to the power of congress in 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 favor, one against it, and one was divided.22
§ 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 favorite 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.23
§ 828. Under the British constitution, the king has the sole right to 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 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.24
§ 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 recognized 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 judge of 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 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.25
§ 832. The propriety of establishing a rule for a quorum for the dispatch 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.26 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.
§ 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 majority 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.27 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.28
§ 834. But, as a danger of an opposite sort required equally to be guarded 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.29 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;30 and no power of compelling the attendance of the requisite number existed.
1. Journal of Congress 218, 240; Id. 354, 374.
2. 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.
3. The Federalist, No. 59; 2 Elliot’s Debates, 276, 277.
4. The Federalist, No. 59; 2 Elliot’s Debates, 38, 39; Id. 276, 277.
5. 1 Elliot’s Debates, 41, 45; The Federalist, No. 22.
6. The Federalist, No. 59.
8. The Federalist, No. 59; 1 Elliot’s Debates, 43 to 55; Id. 67, 68; 3 Elliot’s Debates, 65.
9. The Federalist, No. 59.
11. The Federalist, No. 60.
13. The Federalist, No. 60.
14. The Federalist, No. 61. — The full force of this reasoning will not be perceived, without adverting to the fact, that though in New- England 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 Elliot’s Debates, 68.
15. 2 Elliot’s Debates, 38, 39.
16. The Federalist, No. 61.
17. See 1 Elliot’s Debates, 44, 47, 48, 49; Id. 55; Id. 67.
18. The Federalist, No. 61; 2 Elliot’s Debates, 38, 39.
19. 1 Tucker’s Black. Comm. App. 192.
20. Tucker’s Black. Comm. App. 191, 192.
21. See Journal of Convention, Supplement, p. 402, 411, 418, 425, 433, 447, 454.
22. Journal of Convention, 351, 374.
23. The Federalist, No. 52.
24. 1 Black. Comm. 187, 188, and Christian’s Note; 2 Wilson’s Law Lect. 151, 155.
25. 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.
26. 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.
27. The Federalist, No. 58; Journal of Convention, 218, 242.
28. The Federalist, No. 22, 58.
29. Journal of Convention, 218, 242; 4 Instit. 43, 49.
30. Confederation, art.9; 1 Elliot’s Debates, 44, 45; The Federalist, No. 22.
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