Sidebilder
PDF
ePub
[ocr errors]
[ocr errors]

Just as with reference to the membership of the house of representatives, so also in regard to the other regulations of elections and that too for both houses-the constitution has guarded the possibility of letting experience shape matters in fullest accord with the changing demands of every new situation. Art. I., sec. 4, § 1, provides: "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." This exception is evidently founded on the fact that the senators are elected by the legislatures, and it would not be in harmony with the federal character of the Union to grant to congress the right of determining the places for the meeting of the legislatures of the several states. For a long time congress made no use of the powers granted it by this clause. In 1842, for the first time, it declared that elections for the house of representatives should take place by districts.1 But now, on the contrary, the constant and actual consolidation of the Union has found even in this respect a corresponding legal expression. An act of February 2, 1872, provides that from and after the year 1876 in every second year the election for members of the house of representatives shall take place on the Tuesday succeeding the first Monday of November in fixed geographical districts.2 population of 62,266, and would thus have probably had no representative, if the constitution had not provided in this way for such a case. So, too, the population of Delaware fell several hundreds below the established standard-number of 154,325. At this time four states have each but one representative.

1 For a discussion of the disregard of this law on the part of several states and the approval of their action by the house of representatives, see my Constitutional History. II., 505 et seq.

2 Statutes at Large, XVII., 28, secs. 2, 3. The fifth section of this law declares that in future no state shall be admitted into the Union

The votes cast must be on either written or printed ballots. The elections of senators had already been, by an act of July 25, 1866, very precisely arranged and regulated. The election must take place on the second Tuesday after the assembling and organization of the legis lature. In each house each member declares his vote viva voce. At noon of the day following both houses meet in joint convention, and if in each the same person has obtained a majority of all the votes cast, the election | is completed. If this is not the case, or if one of the two houses has not entered upon the election in the manner prescribed, then the joint convention proceeds to vivavoce voting until a majority of the voters have united upon one person. The election is legal only when a majority of all the members elect are present and vote. For elections necessary on account of a vacancy substantially the same provisions obtain. The regular elections are held by the last legislature elected before the expiration of the term of office of a senator.

"without having the necessary population to entitle it to at least one representative according to the ratio of representation fixed by this bill." After the census of 1870, in accordance with the provisions of this act, there was one representative for every 131,425 inhabitants. As it is not intended to compel the states to headlong changes of their election districts, and the number thereof naturally often fails to agree with the number of representatives to which, on the basis of a new census, the states are entitled, they are permitted to elect the additional quota of representatives from the state at large,-c -congressmen at large.

1 Act of February 28, 1871, sec. 19; Statutes at Large, XVII., 440. Formerly the states even in this respect could act as they deemed proper. It is left for them to determine whether an absolute majority is necessary to elect or a plurality shall suffice. In opposition to the law prevailing in England, the New England colonies adopted wholly or in part the principle of the absolute majority, but in the course of time the principle of plurality wins more and more the predominance in the United States, if indeed the former has not yet been completely displaced.

No constitutional

23. THE RIGHT OF INSTRUCTION. relation of any kind whatsoever exists between the senators and legislatures, after a valid and complete election. Legislatures have, indeed, very frequently, by passing resolutions, "instructed" the senators of their stateand that, too, without regard to whether they were elected by them or former legislatures — as to what attitude they should take upon certain questions. The senators— especially in early times those of the democratic party, as a rule-frequently acknowledged the right of “instruction." There is not, however, a particle of doubt that the claim of such a right, as has already been said, is not only extra-constitutional, but directly unconstitutional. The constitution does not once recognize the constituent's right of instruction. But the legislatures are as little the constituents of the senators as the presidential electors are the constituents of the president. Like the latter, they are merely entrusted with the election. If legislatures possessed the right of instruction, they would necessarily possess the power to enforce obedience. They would, therefore, have to be able to unseat a disobedient senator. But the constitution fixes the term at six years, and the legislatures cannot lengthen or shorten it by even one day. Since, moreover, in all the states, one house of the legislature is renewed at least every two years, the balance of parties during the senatorial term of office may be overthrown at least once, and quite likely twice. But even the most extreme state's-rights advocate never ventured the assertion that such an event imposed on a senator a moral obligation to resign. Nevertheless, if this happens, it is not simply on one certain question that he is out of accord with the will of the legislature; on all party questions he opposes it. A right of instruction that presupposes an identical partisan position is a manifest absurdity. And yet it must depend upon

this presupposition, for the two senators of a state are elected by two different legislatures, and it is therefore a matter of common occurrence that they should belong to two different parties. Despite this, they are absolutely equal representatives of their state. The constitution. (art. I., sec. 3, § 1) provides: "Each senator shall have one vote." It is therefore proper only in a very limited sense to call the senate the congressional house of states. The votes of the states are not cast there. Each senator votes according to his own convictions, and on his own personal responsibility. A legislature cannot assert that the state is practically deprived of its proper weight in the senate because the vote of a senator elected by a former legislature neutralizes the vote of one of an opposite party elected by a more recent legislature. The state has no right of complaint, moreover, even when -as may easily be the case-both senators belong to a party which, at the moment, is in a minority in the state.

There is no difference in the political existence of the house of representatives and of the senate, from the standpoint of constitutional law. Their functions are not quite the same; the mode of election, the voters, and the tenure of office are different; and in the senate the states as such have equal representation, whereas in the house of representatives representation is in proportion to the population. But the constitutional nature of the tenure of office is the same for both houses of congress. The mistake of the state's-rights conception of this question is, that it treats the legislatures and the states as identical. But according to the constitution, the latter, not the former, are represented in the senate.'

1 It has happened that senators have resigned because obedience to instructions was irreconcilable with their consciences, and they recognized the right of the legislature to demand the representation of its views in the senate.

66

The conditions upon which the passive right of suffrage (the right to be voted for) depends are in substance the same for both houses of congress. For the senate they are simply somewhat more severe. To be eligible a person must be at least twenty-five (thirty) years of age, have been a citizen of the United States for at least seven (nine) years, and be an inhabitant of the state at the time of the election. The third section of the fourteenth amendment moreover provides: No person shall be a senator or representative in congress, or elector of president and vicepresident, or hold any office, civil or military, under the United States or under any state, who, having previously taken an oath as a member of congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But congress may, by a vote of two-thirds of each house, remove such disability." During the so-called period of reconstruction, these provisions were of great moment. Since its close, they are of importance only in so far as they tend to prevent the revival of doctrines which, in their ultimate consequences, led to the absurdity of constitutional rebellion.

24. CONGRESS. As the elections to the house of representatives and to the senate in accordance with the provisions of the constitution and the laws proceed without the co-operation of the federal executive power, so in the regular course of affairs there is no need of its intervention to call the representatives and senators to assem

1 The tenure of office does not cease by reason of removal of the elected person to another state after his election. Diplomatic officials of the Union, even when at their posts in foreign countries, are recognized as "inhabitants" of their respective states and are eligible.

« ForrigeFortsett »