THE CONSTITUTION AUTHORIZES THE CONGRESS 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 chusing Senators.” Art. I, § 4, cl. 1.
This provision was declaimed against not only by those who condemned the Constitution in gross, but by those who objected with less latitude and moderation.
In one instance, an individual who advocated every other part of the system found this provision exceptionable.
But there is no article in the whole plan more completely defensible, since its propriety rests upon the plain proposition that every government ought to contain in itself the means of its own preservation.
Every just reasoner must approve an adherence to this rule upon first sight, and disapprove every deviation from it which is not dictated by the necessity of incorporating into it some particular ingredient incompatible with a rigid conformity to the rule, as with the construction of the Senate.
And even though a just reasoner may acquiesce in that necessity, yet that reasoner will not cease to regret a departure from so fundamental a principle, and regard it as an imperfection in the system, which may prove the seed of future weakness and perhaps anarchy.
A Discretionary Power over Federal Elections Is Necessary
No one asserted an election law could have been framed and inserted into the Constitution which would apply always to every probable change in the situation of the United States.
Therefore, it must be conceded that a discretionary power over elections ought to exist, and that this discretion be placed somewhere.
There are only three ways in which this power reasonably could have been modified and disposed. It could have been lodged:
(1) wholly in the Federal legislature (the Congress),
(2) wholly in the State legislatures, or
(3) primarily in the State legislatures, but ultimately in the Federal legislature.
The regulation of elections for the Federal government in the first instance is delegated to State legislatures because the administration by State legislatures may be both more convenient and satisfactory in ordinary cases. Nonetheless, the Convention reserved to Congress a right to alter State regulations when extraordinary circumstances or improper views might render such interposition necessary to preserve representation.
Congress Must Be the Ultimate Arbiter of Federal Elections
The third mode was preferred by the Convention, and for good reasons.
The regulation of elections for the Federal government in the first instance is delegated to State legislatures because the administration by State legislatures may be both more convenient and satisfactory in ordinary cases.
Nonetheless, the Convention reserved to Congress a right to alter State regulations when extraordinary circumstances or improper views might render such interposition necessary to preserve representation.
Nothing is more evident than that leaving the exclusive power of regulating elections to the House of Representatives in the hands of State legislatures would leave the very existence of the Federal government entirely at the mercy of those legislatures.
At any moment, State legislatures could annihilate the Federal government 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 is unlikely.
The constitutional possibility of the thing – without an equivalent for the risk – is an unanswerable objection.
No satisfactory reason was ever given for incurring the risk of a complete delegation of Federal election control to State legislatures.
All that was offered were the extravagant surmises of a distempered jealousy.
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 Federal government.
Is it not more consonant to the rules of a just theory to trust the Federal government with the care of its own existence, than to transfer that care to any other hands?
Nothing is more evident than that leaving the exclusive power of regulating elections to the House of Representatives in the hands of State legislatures would leave the very existence of the Federal government entirely at the mercy of those legislatures. At any moment, State legislatures could annihilate the Federal government 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 is unlikely. The constitutional possibility of the thing – without an equivalent for the risk – is an unanswerable objection.
Just as the Federal Government Cannot Control State Elections, State Governments Cannot Control Federal Elections
Suppose an article had been introduced into the Constitution which empowered the Federal government to regulate the elections of the particular States.
Would anyone have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments?
To an unbiased observer, the same would be true for the project of subjecting the regulation of Federal elections to State legislatures.
The very existence of the Federal government would be subject to the pleasure of State governments.
An impartial view of the matter cannot fail to result in a conviction that any government – whether State or Federal – ought to depend on itself for its own preservation, as far as possible.
The Construction of the Senate Does Not Justify State Regulation of House Elections
As an objection to having Congress be the final authority to regulate the times, places and manner of holding Federal elections, some might say the system applicable to the Senate gives rise to the same danger which could flow from an exclusive power in the State legislatures to regulate Federal elections.
That is, by declining the appointment of senators, State legislatures might at any time give a fatal blow to the United States.
From this premise it could be argued there ought to be no objection to entrusting State legislatures with the power of regulating elections to the House of Representatives, especially since each State has an interest in maintaining its representation in the national councils.
Taken together, the argument might conclude, these factors would be a complete security against State legislatures abusing the trust that a delegation of final regulatory authority would entail.
Though attractive initially, upon examination this argument will not be found solid. It is certainly true that State legislatures – by forbearing the appointment of senators – have the power to destroy the Federal government.
But the existence of a power to do so with respect to senatorial appointment does not compel granting the power in every other instance.
There are cases in which the harmful tendency of such a power may be far greater, such as with the regulation of elections for the House of Representatives.
In the absence of a reason that was equally cogent to the one that supported appointment of senators by State legislatures, the Convention could not recommend ultimate regulation of House members by State legislatures into the system.
So far as the construction of the Senate may expose the Federal government 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 Federal government.
Had the Convention taken this view, and excluded the States from representation in the Federal government, 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.
However wise it may have been to submit to the inconvenience of having States appoint senators (in order to attain a necessary advantage or a greater good), no inference can be drawn from thence to favor an accumulation of the evil with respect to the House, where neither necessity urges, nor any greater good invites.
The Adverse Risk of State Regulation of House Elections Is Greater than the Risk of State Malfeasance in the Appointment of Senators
The Federal government would run a much greater risk from a power in the State legislatures over the elections of members to the House of Representatives, than from the power of appointing members of the Senate.
Senators are to be chosen by State legislatures for a period of six years.
This is three times as long as the two-year terms of members of the House of Representatives.
Senators are divided into three classes in order to ensure a rotation, by which the seats of a third part of them are to be vacated and replenished every two years.
No State is entitled to more than two senators, and a quorum of the body is to consist of a majority of members, as in the House of Representatives.
The joint result of these circumstances is that a temporary combination of a few States to intermit the appointment of senators can neither annul the existence of the Senate nor impair its activity.
We have nothing to fear except from either a general or permanent combination of the States with respect to the Senate.
A temporary combination to annul a quorum in the Senate might proceed from sinister designs in the leading members of a few of the State legislatures.
A permanent combination of States would suppose a fixed and rooted disaffection in the great body of the People.
A permanent combination will either never exist, or proceed from an experience of the ineptitude of the Federal government to the advancement of their happiness, in which event no good citizen could desire its continuance.
State Legislative Control of Federal Elections Would Invite Disorder
With regard to the House of Representatives, there will be a general election of members once in two years.
If the State legislatures were invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation.
The United States might dissolve if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election.
Even when the People of America find themselves warmly attached to the Federal government, particular rulers of particular States – stimulated by the natural rivalries of power and hopes of personal aggrandizement – and supported by a strong faction in each of those States – may be in a very opposite temper.
There is a degree of weight in the observation that the interests of each State – which are to be represented in the Federal councils – will be a security against abuse of Federal elections by State legislatures.
But this security will not be considered complete by those who attend to the force of the obvious distinction between the interest of the People in the public felicity, and the interest of the People’s local rulers in the power and consequence of their offices.
Even when the People of America find themselves warmly attached to the Federal government, particular rulers of particular States – stimulated by the natural rivalries of power and hopes of personal aggrandizement – and supported by a strong faction in each of those States – may be in a very opposite temper.
At the present moment on the present question, a diversity of sentiment between the majority of the People, on the one hand, and the individuals who have the greatest credit in their councils, on the other, is exemplified in some of the States.
The Prospect of Separate Confederacies Is Contrary to the Common Good
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 who are as 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 Federal government, a combination of a few such individuals – in a few of the most considerable States (where the temptation will always be the strongest) – might attempt to accomplish the destruction of the United States.
These actors might seize the opportunity of some casual dissatisfaction among the People – which the members of the combination may themselves have excited – to discontinue the choice of members for the House of Representatives.
Foreign Governments Will Attempt to Subvert the Federal Government
It ought never to be forgotten, that a firm union of this country – under an efficient government – will be an increasing object of jealousy to more than one nation of Europe.
Enterprises to subvert the United States will sometimes originate in the intrigues of foreign powers.
Such enterprises will seldom fail to be patronized and abetted by one or more foreign governments.
Preservation of the United States ought 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.
Hamilton