Concerning the Power of Congress to Regulate the Election of Members



From the New York Packet. Friday, February 22, 1788.



HAMILTON





To the People of the State of New York:



The natural order of the subject leads us to consider, in this place,

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.