of the people. There could be no claim of an order of rank among them, even if it were permitted to deduce the constitutional law of the land from "the democratic principle." In spite of the great role which appeals to "the democratic principle" have played in the constitutional history of the United States, there is not the least doubt of its absolute inapplicability, for these appeals substitute for the constitution this principle, or what is declared to be a consequence thereof. The sovereign people have made unto themselves the constitution as their supreme law. They have therein merely assigned a fixed place to each of the three factors of government, without regarding it as necessary either to the public dignity or interests to admeasure its respective authority in proportion to the participation of the people — the voters in its organization. Had that been the intention of the authors of the constitution, they would not, on the one hand, have given that factor (the supreme court), to which its final interpretation as a rule belongs, the greatest possible stability, and, on the other, have withheld from the "people" every immediate influence upon the formation of this factor.

21. THE TERM OF OFFICE. Just as the provision that the members of the supreme court shall be appointed by the president with the consent of the senate for life or during good behavior disregards "the democratic principle,” so all the other provisions relating to the terms of office of the other possessors of the powers of government depend solely upon the demands of public policy. The president is elected for four years, and enters upon the duties of his office on the 4th day of March. Relative to eligibility for re-election, the constitution says nothing. A single re-election has frequently occurred, but a reelected president has never even been renominated by

his party, much less actually re-elected, for a third term.1 The suggestion often made, to abolish the right of reelection, has thus far found so little approbation among the people that it has been somewhat vigorously agitated only during a few presidential campaigns. The vicepresident is elected simultaneously with the president and for the same period of time. Congress consists of the house of representatives and of the senate. The members of the house of representatives are elected for two years. Their terms all end on every second 4th of March. Only in cases of vacancies does the governor of the state concerned order a special election to fill the vacancy (art. I., sec. 2, § 4). This term of office is absolutely mandatory for the whole house. A dissolution of congress is not recognized by the constitution. The term of the house of representatives constitutes a legislative period and is the basis of political chronology. The count is by "congresses,” and each new house of representatives brings a new "congress" into existence. The presidential term of office covers two legislative periods. The senators are elected by the different state legislatures for the term of six years. If a vacancy occurs, the governor of the state concerned is authorized to fill it provisionally by appointment, if the legislature is not in session at the time (art. I., sec. 3, § 2). After the legislature is again in session, a new election of a senator takes place, not for a term of six years, but only for the unexpired part of the term. This is because the senate is not subject to an

3

A portion of the republican party made very energetic but ultimately fruitless efforts in 1880 to break through this tradition in favor of General Grant.

2 Vacancies occur through death, resignation, expulsion, and acceptance of an office incompatible with that of congressman.

3 The governor is not authorized to make the appointment if the vacancy has not yet actually occurred, but is only prospective.

integral or total renewal, but yet at the expiration of each legislative period, one-third of the senators retire. On this account (according to art. I., sec. 3, § 2), at the foundation of the government, the senators were distributed into three classes by lot; but care was taken that both senators from one state did not fall into the same class. When a new state is admitted into the Union, its senators are likewise placed by lot in different classes. Thus the senatorial term of office, next to that of the federal judges, is not only the longest, but the senate itself is likewise, though not in the manner of the supreme court, a permanent body with perpetual succession. The government is on the one hand assured, by this systematic diversity of official terms, of the continual influx of new blood, which keeps it in immediate and active sympathy with the existing wishes of the people. On the other hand, the danger of the government's reflecting only the momentary popular humor is thus also obviated.

$22. MODE OF ELECTION. THE ACTIVE RIGHT OF SUFFRAGE. A like amalgamation of a self-conscious democratic spirit and conservative forecast characterizes every provision concerning the formation of those two departments which, in the more limited sense of the word, are designated as the government.1

The members of the house of representatives must be elected "by the people of the several states " (art. I., sec. 2, § 1). Farrar (p. 150) thinks that by "people" is meant only citizens, and, in fact, only citizens of the United

1 What is called the government in Europe is styled the administration in the United States. The difference of speech is well founded in fact. In these, as in all like cases where the ideas do not completely coincide, for the purpose of greater accuracy I shall always adhere to the American terminology, after the expression has once been explained.

States. This assertion is neither justified by the most famous commentators on the constitution, nor is it in accordance with practice. The provision is simply that the representatives shall receive their authority by a direct election, for further on it is set forth: "The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature." The active right of voting for congressmen, it thus appears, is not established on the same basis for all of the United States, either by the constitution or laws of the Union. In each state it may be made dependent upon different conditions. Formerly the greatest diversities prevailed in this respect, and even now there is no complete uniformity. Yet from a constitutional standpoint it is not correct merely to state that the constitution left it entirely to the judgment of the states to determine the qualifications of the voter at elections to the house of representatives. It would be more correct to say that the states have never had any power whatever in the matter. The states have only to decide who shall possess the franchise at elections to the most numerous branch of the state legislature. The constitution makes the possessors of this franchise the electors for the house of representatives. It may seem at first sight that this is only a logical distinction, without any practical difference. But this is not so. The states, in many instances, in framing their election laws, paid no attention to the elections for the house of representatives.

1 Congress also has the right to protect voters in the exercise of the franchise; to punish election officials for unlawful practices; to direct the registration of voters, etc. How far it may exercise these rights is within its judgment, but so far as it does exercise them the conflicting provisions of the state laws will be of no avail. Ex parte Siebold, 100 U. S., 371; Ex parte Clarke, 100 U. S. (Otto, X.), 299.

They considered simply their own public affairs. This is why, for instance, many states have given the franchise to non-naturalized foreigners, who thereby were endowed under the constitution with the franchise at elections to the house of representatives. We have, then, this curious spectacle: that, in the democratic republic, male citizens of full age, of good character, and of sound mind, cannot vote for members of the people's house of the Union, while certain persons who are not citizens can do so. Having or not having the franchise depends, in the first place, upon the domicile. A change in that may give or may forfeit the franchise. In the United States, as such, universal suffrage (so called) does not exist. Moreover, citizenship is not a condition precedent of the franchise.1

The amendments adopted after the civil war have brought about a much greater uniformity with regard to the franchise, but the anomalies just noted have not been set aside. The second section of the fourteenth amendment declares that the states shall be represented in the house of representatives in proportion to the total number of their inhabitants, exclusive of the untaxed Indians.2

1 See Scott vs. Sanford (better known as the Dred-Scott decision), Howard, XIX., 404-414.

2 Art. I., sec. 2, § 3, provides that each five slaves (but this word was avoided) should be counted, in regard to representation, as three persons. The further declaration of this paragraph, that "direct taxes" should also be levied in proportion to the population of the states, is not touched by the fourteenth amendment, and is therefore still in full force. What is meant by "direct taxes" has evoked very divergent views, and there has been no authoritative decision of the question. I must therefore rely upon the simple statement of the clause, and can do this the more readily since before the civil war direct taxes were levied only thrice,-in 1798, 1813 and 1815. The nature of certain taxes levied during the war is a subject of controversy. Since its termination the controversy has again assumed a