"But when the right to vote at any election for the choice of electors for president and vice-president of the United States, representatives in congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state." So far as this provision is concerned the right of the states to regulate the franchise according to their own opinions is not in the least abridged; but it puts a strong pressure on the states to introduce universal suffrage. Every considerable limitation of the right of suffrage henceforth would bring about a sensible diminution of a state's representation in the house of representatives. Pomeroy (p. 135) justly observes that this provision, directed mainly against the former slave states and intended to force them to grant full political equality to the freedmen, was the surrender of a fundamental principle of the constitution. It is not limited to the exercise of an influence upon the elections to the house of representatives. It subjects the states to the strongest pressure in framing their laws concerning the right of suffrage in state elections. Hitherto, on the contrary, the constitution had, as a matter of fundamental principle, left with

purely academic character, and the economic relations of the Union suggest that it will retain this character for generations to come. According to the decision of the supreme court in Springer vs. The United States (102 U. S., 586), the income tax is not a direct tax" within the meaning of the constitution; only poll taxes and taxes on real estate are to be regarded as "direct."

66

the states the absolute right of self-government in all affairs peculiarly their own.

In one provision, the fifteenth amendment went far in advance of the fourteenth. It reads: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude." In opposition to a widespread opinion, the courts have decided, in every case brought before them, that nobody obtained the right to vote by reason of this amendment. The United States, as well as the several states, can still withhold it forever from every colored man and former slave, but they cannot do so on account of his race, color or previous condition of servitude. The states' right of self-government relative to the franchise has now undoubtedly suffered a legal limitation, not because they have been obliged to grant the suffrage to certain persons, but because they are forbidden to refuse it on certain grounds.

The number of members of the house of representatives is not fixed by the constitution. It merely declares that every tenth year an enumeration of the people shall be made, that the number of representatives shall not exceed one for every 30,000 inhabitants, and that each state shall have at least one representative (art. I., sec. 2, § 3). The basis of representation has been repeatedly changed. by law in accordance with the results of the decennial census. After the first census it was fixed at 33,000; now it is 154,325; and the number of members has grown from 65 and 105 to 325, to which a delegate from each of the eight territories is to be added.1

1 There were 65 members according to the temporary provisions of the constitution, and 105 after March 4, 1793, upon the basis of the first census. Nevada had, according to the census of 1880, only a

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. law declares that in future no state shall be

The fifth section of this 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 legislature. 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 représentation 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,-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