that provision of the Constitution which authorizes the national
legislature to regulate, in the last resort, the election of its own
members. It is in these words: “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 PLACES
of choosing senators.”[1] This provision has not only been declaimed
against by those who condemn the Constitution in the gross, but it has
been censured by those who have objected with less latitude and greater
moderation; and, in one instance it has been thought exceptionable by a
gentleman who has declared himself the advocate of every other part of
the system. I am greatly mistaken, notwithstanding, if there be any
article in the whole plan more completely defensible than this. Its
propriety rests upon the evidence of this plain proposition, that EVERY
GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN
PRESERVATION. Every just reasoner will, at first sight, approve an
adherence to this rule, in the work of the convention; and will
disapprove every deviation from it which may not appear to have been
dictated by the necessity of incorporating into the work some
particular ingredient, with which a rigid conformity to the rule was
incompatible. Even in this case, though he may acquiesce in the
necessity, yet he will not cease to regard and to regret a departure
from so fundamental a principle, as a portion of imperfection in the
system which may prove the seed of future weakness, and perhaps
anarchy. It will not be alleged, that an election law could have been
framed and inserted in the Constitution, which would have been always
applicable to every probable change in the situation of the country;
and it will therefore not be denied, that a discretionary power over
elections ought to exist somewhere. It will, I presume, be as readily
conceded, that there were only three ways in which this power could
have been reasonably modified and disposed: that it must either have
been lodged wholly in the national legislature, or wholly in the State
legislatures, or primarily in the latter and ultimately in the former.
The last mode has, with reason, been preferred by the convention. They
have submitted the regulation of elections for the federal government,
in the first instance, to the local administrations; which, in ordinary
cases, and when no improper views prevail, may be both more convenient
and more satisfactory; but they have reserved to the national authority
a right to interpose, whenever extraordinary circumstances might render
that interposition necessary to its safety. Nothing can be more
evident, than that an exclusive power of regulating elections for the
national government, in the hands of the State legislatures, would
leave the existence of the Union entirely at their mercy. They could at
any moment annihilate it, by neglecting to provide for the choice of
persons to administer its affairs. It is to little purpose to say, that
a neglect or omission of this kind would not be likely to take place.
The constitutional possibility of the thing, without an equivalent for
the risk, is an unanswerable objection. Nor has any satisfactory reason
been yet assigned for incurring that risk. The extravagant surmises of
a distempered jealousy can never be dignified with that character. If
we are in a humor to presume abuses of power, it is as fair to presume
them on the part of the State governments as on the part of the general
government. And as it is more consonant to the rules of a just theory,
to trust the Union with the care of its own existence, than to transfer
that care to any other hands, if abuses of power are to be hazarded on
the one side or on the other, it is more rational to hazard them where
the power would naturally be placed, than where it would unnaturally be
placed. Suppose an article had been introduced into the Constitution,
empowering the United States to regulate the elections for the
particular States, would any man have hesitated to condemn it, both as
an unwarrantable transposition of power, and as a premeditated engine
for the destruction of the State governments? The violation of
principle, in this case, would have required no comment; and, to an
unbiased observer, it will not be less apparent in the project of
subjecting the existence of the national government, in a similar
respect, to the pleasure of the State governments. An impartial view of
the matter cannot fail to result in a conviction, that each, as far as
possible, ought to depend on itself for its own preservation. As an
objection to this position, it may be remarked that the constitution of
the national Senate would involve, in its full extent, the danger which
it is suggested might flow from an exclusive power in the State
legislatures to regulate the federal elections. It may be alleged, that
by declining the appointment of Senators, they might at any time give a
fatal blow to the Union; and from this it may be inferred, that as its
existence would be thus rendered dependent upon them in so essential a
point, there can be no objection to intrusting them with it in the
particular case under consideration. The interest of each State, it may
be added, to maintain its representation in the national councils,
would be a complete security against an abuse of the trust. This
argument, though specious, will not, upon examination, be found solid.
It is certainly true that the State legislatures, by forbearing the
appointment of senators, may destroy the national government. But it
will not follow that, because they have a power to do this in one
instance, they ought to have it in every other. There are cases in
which the pernicious tendency of such a power may be far more decisive,
without any motive equally cogent with that which must have regulated
the conduct of the convention in respect to the formation of the
Senate, to recommend their admission into the system. So far as that
construction may expose the Union to the possibility of injury from the
State legislatures, it is an evil; but it is an evil which could not
have been avoided without excluding the States, in their political
capacities, wholly from a place in the organization of the national
government. If this had been done, it would doubtless have been
interpreted into an entire dereliction of the federal principle; and
would certainly have deprived the State governments of that absolute
safeguard which they will enjoy under this provision. But however wise
it may have been to have submitted in this instance to an
inconvenience, for the attainment of a necessary advantage or a greater
good, no inference can be drawn from thence to favor an accumulation of
the evil, where no necessity urges, nor any greater good invites. It
may be easily discerned also that the national government would run a
much greater risk from a power in the State legislatures over the
elections of its House of Representatives, than from their power of
appointing the members of its Senate. The senators are to be chosen for
the period of six years; there is to be a rotation, by which the seats
of a third part of them are to be vacated and replenished every two
years; and no State is to be entitled to more than two senators; a
quorum of the body is to consist of sixteen members. The joint result
of these circumstances would be, that a temporary combination of a few
States to intermit the appointment of senators, could neither annul the
existence nor impair the activity of the body; and it is not from a
general and permanent combination of the States that we can have any
thing to fear. The first might proceed from sinister designs in the
leading members of a few of the State legislatures; the last would
suppose a fixed and rooted disaffection in the great body of the
people, which will either never exist at all, or will, in all
probability, proceed from an experience of the inaptitude of the
general government to the advancement of their happiness in which event
no good citizen could desire its continuance. But with regard to the
federal House of Representatives, there is intended to be a general
election of members once in two years. If the State legislatures were
to be invested with an exclusive power of regulating these elections,
every period of making them would be a delicate crisis in the national
situation, which might issue in a dissolution of the Union, if the
leaders of a few of the most important States should have entered into
a previous conspiracy to prevent an election. I shall not deny, that
there is a degree of weight in the observation, that the interests of
each State, to be represented in the federal councils, will be a
security against the abuse of a power over its elections in the hands
of the State legislatures. But the security will not be considered as
complete, by those who attend to the force of an obvious distinction
between the interest of the people in the public felicity, and the
interest of their local rulers in the power and consequence of their
offices. The people of America may be warmly attached to the government
of the Union, at times when the particular rulers of particular States,
stimulated by the natural rivalship of power, and by the hopes of
personal aggrandizement, and supported by a strong faction in each of
those States, may be in a very opposite temper. This diversity of
sentiment between a majority of the people, and the individuals who
have the greatest credit in their councils, is exemplified in some of
the States at the present moment, on the present question. The scheme
of separate confederacies, which will always multiply the chances of
ambition, will be a never failing bait to all such influential
characters in the State administrations as are capable of preferring
their own emolument and advancement to the public weal. With so
effectual a weapon in their hands as the exclusive power of regulating
elections for the national government, a combination of a few such men,
in a few of the most considerable States, where the temptation will
always be the strongest, might accomplish the destruction of the Union,
by seizing the opportunity of some casual dissatisfaction among the
people (and which perhaps they may themselves have excited), to
discontinue the choice of members for the federal House of
Representatives. It ought never to be forgotten, that a firm union of
this country, under an efficient government, will probably be an
increasing object of jealousy to more than one nation of Europe; and
that enterprises to subvert it will sometimes originate in the
intrigues of foreign powers, and will seldom fail to be patronized and
abetted by some of them. Its preservation, therefore ought in no case
that can be avoided, to be committed to the guardianship of any but
those whose situation will uniformly beget an immediate interest in the
faithful and vigilant performance of the trust.
PUBLIUS.
[1] 1st clause, 4th section, of the 1st article.
THE FEDERALIST.
No. LX.
The Same Subject Continued
(Concerning the Power of Congress to Regulate the Election of Members)
From the New York Packet.
Tuesday, February 26, 1788.
HAMILTON
To the People of the State of New York:
We have seen, that an uncontrollable power over the elections to the
federal government could not, without hazard, be committed to the State
legislatures. Let us now see, what would be the danger on the other
side; that is, from confiding the ultimate right of regulating its own
elections to the Union itself. It is not pretended, that this right
would ever be used for the exclusion of any State from its share in the
representation. The interest of all would, in this respect at least, be
the security of all. But it is alleged, that it might be employed in
such a manner as to promote the election of some favorite class of men
in exclusion of others, by confining the places of election to
particular districts, and rendering it impracticable to the citizens at
large to partake in the choice. Of all chimerical suppositions, this
seems to be the most chimerical. On the one hand, no rational
calculation of probabilities would lead us to imagine that the
disposition which a conduct so violent and extraordinary would imply,
could ever find its way into the national councils; and on the other,
it may be concluded with certainty, that if so improper a spirit should
ever gain admittance into them, it would display itself in a form
altogether different and far more decisive.
The improbability of the attempt may be satisfactorily inferred from
this single reflection, that it could never be made without causing an
immediate revolt of the great body of the people, headed and directed
by the State governments. It is not difficult to conceive that this
characteristic right of freedom may, in certain turbulent and factious
seasons, be violated, in respect to a particular class of citizens, by
a victorious and overbearing majority; but that so fundamental a
privilege, in a country so situated and enlightened, should be invaded
to the prejudice of the great mass of the people, by the deliberate
policy of the government, without occasioning a popular revolution, is
altogether inconceivable and incredible.
In addition to this general reflection, there are considerations of a
more precise nature, which forbid all apprehension on the subject. The
dissimilarity in the ingredients which will compose the national
government, and still more in the manner in which they will be brought
into action in its various branches, must form a powerful obstacle to a
concert of views in any partial scheme of elections. There is
sufficient diversity in the state of property, in the genius, manners,
and habits of the people of the different parts of the Union, to
occasion a material diversity of disposition in their representatives
towards the different ranks and conditions in society. And though an
intimate intercourse under the same government will promote a gradual
assimilation in some of these respects, yet there are causes, as well
physical as moral, which may, in a greater or less degree, permanently
nourish different propensities and inclinations in this respect. But
the circumstance which will be likely to have the greatest influence in
the matter, will be the dissimilar modes of constituting the several
component parts of the government. The House of Representatives being
to be elected immediately by the people, the Senate by the State
legislatures, the President by electors chosen for that purpose by the
people, there would be little probability of a common interest to
cement these different branches in a predilection for any particular
class of electors.
As to the Senate, it is impossible that any regulation of “time and
manner,” which is all that is proposed to be submitted to the national
government in respect to that body, can affect the spirit which will
direct the choice of its members. The collective sense of the State
legislatures can never be influenced by extraneous circumstances of
that sort; a consideration which alone ought to satisfy us that the
discrimination apprehended would never be attempted. For what
inducement could the Senate have to concur in a preference in which
itself would not be included? Or to what purpose would it be
established, in reference to one branch of the legislature, if it could
not be extended to the other? The composition of the one would in this
case counteract that of the other. And we can never suppose that it
would embrace the appointments to the Senate, unless we can at the same
time suppose the voluntary co-operation of the State legislatures. If
we make the latter supposition, it then becomes immaterial where the
power in question is placed whether in their hands or in those of the
Union.
But what is to be the object of this capricious partiality in the
national councils? Is it to be exercised in a discrimination between
the different departments of industry, or between the different kinds
of property, or between the different degrees of property? Will it lean
in favor of the landed interest, or the moneyed interest, or the
mercantile interest, or the manufacturing interest? Or, to speak in the
fashionable language of the adversaries to the Constitution, will it
court the elevation of “the wealthy and the well-born,” to the
exclusion and debasement of all the rest of the society?
If this partiality is to be exerted in favor of those who are concerned
in any particular description of industry or property, I presume it
will readily be admitted, that the competition for it will lie between
landed men and merchants. And I scruple not to affirm, that it is
infinitely less likely that either of them should gain an ascendant in
the national councils, than that the one or the other of them should
predominate in all the local councils. The inference will be, that a
conduct tending to give an undue preference to either is much less to
be dreaded from the former than from the latter.
The several States are in various degrees addicted to agriculture and
commerce. In most, if not all of them, agriculture is predominant. In a
few of them, however, commerce nearly divides its empire, and in most
of them has a considerable share of influence. In proportion as either
prevails, it will be conveyed into the national representation; and for
the very reason, that this will be an emanation from a greater variety
of interests, and in much more various proportions, than are to be
found in any single State, it will be much less apt to espouse either
of them with a decided partiality, than the representation of any
single State.
In a country consisting chiefly of the cultivators of land, where the
rules of an equal representation obtain, the landed interest must, upon
the whole, preponderate in the government. As long as this interest
prevails in most of the State legislatures, so long it must maintain a
correspondent superiority in the national Senate, which will generally
be a faithful copy of the majorities of those assemblies. It cannot
therefore be presumed, that a sacrifice of the landed to the mercantile
class will ever be a favorite object of this branch of the federal
legislature. In applying thus particularly to the Senate a general
observation suggested by the situation of the country, I am governed by
the consideration, that the credulous votaries of State power cannot,
upon their own principles, suspect, that the State legislatures would
be warped from their duty by any external influence. But in reality the
same situation must have the same effect, in the primative composition
at least of the federal House of Representatives: an improper bias
towards the mercantile class is as little to be expected from this
quarter as from the other.
In order, perhaps, to give countenance to the objection at any rate, it
may be asked, is there not danger of an opposite bias in the national
government, which may dispose it to endeavor to secure a monopoly of
the federal administration to the landed class? As there is little
likelihood that the supposition of such a bias will have any terrors
for those who would be immediately injured by it, a labored answer to
this question will be dispensed with. It will be sufficient to remark,
first, that for the reasons elsewhere assigned, it is less likely that
any decided partiality should prevail in the councils of the Union than
in those of any of its members. Secondly, that there would be no
temptation to violate the Constitution in favor of the landed class,
because that class would, in the natural course of things, enjoy as
great a preponderancy as itself could desire. And thirdly, that men
accustomed to investigate the sources of public prosperity upon a large
scale, must be too well convinced of the utility of commerce, to be
inclined to inflict upon it so deep a wound as would result from the
entire exclusion of those who would best understand its interest from a
share in the management of them. The importance of commerce, in the
view of revenue alone, must effectually guard it against the enmity of
a body which would be continually importuned in its favor, by the
urgent calls of public necessity.
I the rather consult brevity in discussing the probability of a
preference founded upon a discrimination between the different kinds of
industry and property, because, as far as I understand the meaning of
the objectors, they contemplate a discrimination of another kind. They
appear to have in view, as the objects of the preference with which
they endeavor to alarm us, those whom they designate by the description
of “the wealthy and the well-born.” These, it seems, are to be exalted
to an odious pre-eminence over the rest of their fellow-citizens. At
one time, however, their elevation is to be a necessary consequence of
the smallness of the representative body; at another time it is to be
effected by depriving the people at large of the opportunity of
exercising their right of suffrage in the choice of that body.
But upon what principle is the discrimination of the places of election
to be made, in order to answer the purpose of the meditated preference?
Are “the wealthy and the well-born,” as they are called, confined to
particular spots in the several States? Have they, by some miraculous
instinct or foresight, set apart in each of them a common place of
residence? Are they only to be met with in the towns or cities? Or are
they, on the contrary, scattered over the face of the country as
avarice or chance may have happened to cast their own lot or that of
their predecessors? If the latter is the case, (as every intelligent
man knows it to be[1]) is it not evident that the policy of confining
the places of election to particular districts would be as subversive
of its own aim as it would be exceptionable on every other account? The
truth is, that there is no method of securing to the rich the
preference apprehended, but by prescribing qualifications of property
either for those who may elect or be elected. But this forms no part of
the power to be conferred upon the national government. Its authority
would be expressly restricted to the regulation of the TIMES, the
PLACES, the MANNER of elections. The qualifications of the persons who
may choose or be chosen, as has been remarked upon other occasions, are
defined and fixed in the Constitution, and are unalterable by the
legislature.
Let it, however, be admitted, for argument sake, that the expedient
suggested might be successful; and let it at the same time be equally
taken for granted that all the scruples which a sense of duty or an
apprehension of the danger of the experiment might inspire, were
overcome in the breasts of the national rulers, still I imagine it will
hardly be pretended that they could ever hope to carry such an
enterprise into execution without the aid of a military force
sufficient to subdue the resistance of the great body of the people.
The improbability of the existence of a force equal to that object has
been discussed and demonstrated in different parts of these papers; but
that the futility of the objection under consideration may appear in
the strongest light, it shall be conceded for a moment that such a
force might exist, and the national government shall be supposed to be
in the actual possession of it. What will be the conclusion? With a
disposition to invade the essential rights of the community, and with
the means of gratifying that disposition, is it presumable that the
persons who were actuated by it would amuse themselves in the
ridiculous task of fabricating election laws for securing a preference
to a favorite class of men? Would they not be likely to prefer a
conduct better adapted to their own immediate aggrandizement? Would
they not rather boldly resolve to perpetuate themselves in office by
one decisive act of usurpation, than to trust to precarious expedients
which, in spite of all the precautions that might accompany them, might
terminate in the dismission, disgrace, and ruin of their authors? Would
they not fear that citizens, not less tenacious than conscious of their
rights, would flock from the remote extremes of their respective States
to the places of election, to overthrow their tyrants, and to
substitute men who would be disposed to avenge the violated majesty of
the people?
PUBLIUS.
[1] Particularly in the Southern States and in this State.
THE FEDERALIST.
No. LXI.
The Same Subject Continued
(Concerning the Power of Congress to Regulate the Election of Members)
From the New York Packet.
Tuesday, February 26, 1788.
HAMILTON
To the People of the State of New York:
The more candid opposers of the provision respecting elections,
contained in the plan of the convention, when pressed in argument, will
sometimes concede the propriety of that provision; with this
qualification, however, that it ought to have been accompanied with a
declaration, that all elections should be had in the counties where the
electors resided. This, say they, was a necessary precaution against an
abuse of the power. A declaration of this nature would certainly have
been harmless; so far as it would have had the effect of quieting
apprehensions, it might not have been undesirable. But it would, in
fact, have afforded little or no additional security against the danger
apprehended; and the want of it will never be considered, by an
impartial and judicious examiner, as a serious, still less as an
insuperable, objection to the plan. The different views taken of the
subject in the two preceding papers must be sufficient to satisfy all
dispassionate and discerning men, that if the public liberty should
ever be the victim of the ambition of the national rulers, the power
under examination, at least, will be guiltless of the sacrifice.