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ment is proposed changing the basis of representation, and providing, in substance, that the apportionment be made according to the number of those persons in each state who, by state laws, are declared to be electors. The number of delegates in Congress would then depend upon the number of those who are clothed with the capacity of voting; and a state would obtain a larger influence in Congress as it extended wider the electoral franchise among its inhabitants. The adoption of such an amendment would, doubtless, indirectly compel the several state governments in time to confer the right of voting upon negroes. A second plan assumes an amendment either defining in terms the qualifications of electors, or empowering Congress to define them. These changes would affect the entire country. A third measure applies alone to those Southern States which declared themselves separated from the Union, and consists in requiring, as a condition to a complete restoration to their political rights, that they should severally provide in their fundamental laws for conferring the electoral franchise upon negroes. I purpose, in

I the sequel, to offer a few observations upon these plans, and therefore pass them by, at present, with this simple statement.



$197. General Features. - A third element in the organization of the government to which our attention should be directed, is the method of choosing those persons to whom the labor and duty of administering the public affairs are intrusted. When we examine the provisions of the Constitution we are struck with the fact that among the thousands of officials who may be needed to carry on the operations of the national government, only one small class — the members of the House of Representatives — are to be elected directly by the people. Amid the almost universal acceptance of the modern doctrine that the right of suffrage is an essential attribute of citizenship and while the tendency has, for many years, been to extend, and not to contract it, this element in our organic law stands out in bold contrast to the practice of most of the states in the management of their domestic concerns. Indeed, our fathers, who framed and adopted the Constitution, though sternly republican, had not yet conceived the idea that the people were to interfere directly in the choice of all rulers. Their scheme of giving effect to the popular will was through the means of delegation. The people were to speak once in the selection of certain officials; and these representatives were afterwards to be the mouth-pieces of their constituents. This principle runs through the whole Constitution; and it was applied even in the first adoption, and in any subsequent ratification of amendments.

$198. The President and Vice-President. -Article II. Section I., as amended in Article XII. of the Amendments, provides for the choice of President and Vice-President as follows : “ Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress. The electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President."

[The ballots are to be counted by the President of the Senate in the presence of the Senate and House of Representatives.]

“ The person having the greatest number of votes for President shall be the President if such number be a majority of the whole number of electors appointed ; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately by ballot, the President. But in choosing the President the votes shall be taken by states, the representation from each state having one vote ; a quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states

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shall be necessary to a choice. And if the House of Repre sentatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

“ The person having the greatest number of votes as VicePresident shall be the Vice-President, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then, from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

“ The Congress may determine the time of choosing the electors, and the day on which they shall give their votes, which day shall be the same throughout the United States."

$ 199. How these electors may be appointed, whether directly by the people, or by the state legislatures, or otherwise, the Constitution does not assume to determine. It leaves the settlement of that matter entirely to the several states. There need be no uniformity in their practice ; in fact, until recently there never has been. Formerly the method of choosing by the state legislatures was common. At the present day the choice is made by the body of voters in all the states.

$ 200. What was the idea contained in these constitutional provisions ? Was it that the people were to be directly instrumental in the selection of their chief executive officers ? Plainly not. The scheme is complicated, and seems to have been contrived expressly to prevent what is often called the tyranny of majorities. Even now, when the college of electors is chosen by the body of voters, it is possible that a person shall receive the ballots of a large majority of the presidential electors, while a majority of the actual voters have preferred another candidate. In fact, the people of the United States, as one collective aggregate, are not appealed to in the selection of the President, but that people as segregated into their local commonwealths. The idea of original state equality and sovereignty has here left its impress upon the organic law. When, therefore, we hear, at the present day, a complaint that a person may be the President of the minority, it should be remembered that this fact is the result of a concession to the demands of state independence, which were insisted upon with so much pertinacity when the Constitution was framed and adopted. In those clauses which provide for an election by the House of Representatives, this idea of state sovereignty is absolutely controlling; the old feature of state equality in the legislature is expressly preserved.

$201. But aside from the influence which the theory of state independence and sovereignty exerted upon these provisions of the organic law, the whole scheme assumes that the people were not to interfere directly in the selection of their chief executive officers. “By the theory of the Constitution, the evident intention of its framers, and the early practice, it was not designed that the President and Vice-President of the United States should be directly or indirectly voted for by the people in such a manner that a citizen, casting his ballot, should be understood as designating any particular person for either of these offices. Their choice was to be removed from the excitement and distractions of popular elections, and was to be intrusted to the cool and deliberate judgment of a few special electors appointed for that purpose by the several states in such manner as their laws should prescribe. These special electors were assumed to enter upon the discharge of their functions, untramelled by any pledges, and left only to the guidance of their own personal convictions of what were the best interests of the country.

§ 202. “ But the rapid spread of the idea of popular sovereignty has swept away these checks planned by the founders of the government, so that while the letter of the Constitution is strictly obeyed, its intention is directly violated in the election of the chief magistrate. This has been accomplished by the abandonment of the choice of the electors to the people of the several states, and by the closely drawn lines of party discipline ; so that sets of electors, unequivocally pledged to a particular candidate, and directly voted for by the people, have become, in fact, the mere passive instruments of the majority of voters in each state, in carrying out their will as expressed at the ballot-box. The electoral college is thus reduced to a mere machine, a mere conduit through which may flow the stream of popular suffrage. We do now, in fact, vote for the President and Vice-President as really as though their names were inscribed upon the papers we deposit. We have thus, in this respect, virtually made to ourselves a new constitution, which exactly resembles the original in form, but is vastly different in substance. This complete change in the manner of electing the President is a remarkable instance of the way in which written laws and constitutions, however carefully guarded. may be made to yield to a change in the popular feelings and wishes ; so that, while not a clause is repealed or modified, the effect of the whole is entirely transformed. On the letter of the Constitution there has grown up an unwritten law, not, indeed, enacted by courts, but devised and voluntarily obeyed by those who manage the machinery of popular elections.” 1

203. I would not return to the ancient theory. I am persuaded that our fathers had not faith enough in the intelligence of the people. I believe that the whole body of voters is less liable to err in the choice of those rulers whose functions are political, than any small and select number of men specially appointed, however pure and patriotic they may be. I believe that our general elections fairly express the popular will, and that the decision is, on the whole, in accordance with the best interests of the nation. We might well, therefore, abandon the idle and useless form of interposing the machinery of an electoral college between the people and their choice, and allow the votes to be cast directly for the persons designated to the offices of President and Vice-President. I have called this form idle and useless; it certainly is so, unless it be purposely retained as a check upon the power of a majority. If it be thought best that a majority of voters in the United States should not necessarily determine the selection of President,

I See Pomeroy's Introduction to Municipal Law, $ 731.


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