Article 1, Section 4, Clause 1
[Volume 2, Page 270]
Debate in North Carolina Ratifying Convention25 July 1788Elliot 4:50--72
Mr. Spencer. Mr. Chairman, it appears to me that this clause, giving this control over the time, place, and manner, of holding elections, to Congress, does away the right of the people to choose the representatives every second year, and impairs the right of the state legislatures to choose the senators. I wish this matter to be explained.
Gov. Johnston. Mr. Chairman, I confess that I am a very great admirer of the new Constitution, but I cannot comprehend the reason of this part. The reason urged is, that every government ought to have the power of continuing itself, and that, if the general government had not this power, the state legislatures might neglect to regulate elections, whereby the government might be discontinued. As long as the state legislatures have it in their power not to choose the senators, this power in Congress appears to me altogether useless, because they can put an end to the general government by refusing to choose senators. But I do not consider this such a blemish in the Constitution as that it ought, for that reason, to be rejected. I observe that every state which has adopted the Constitution, and recommended amendments, has given directions to remove this objection; and I hope, if this state adopts it, she will do the same.
Mr. Spencer. Mr. Chairman, it is with great reluctance that I rise upon this important occasion. I have considered with some attention the subject before us. I have paid attention to the Constitution itself, and to the writings on both sides. I considered it on one side as well as on the other, in order to know whether it would be best to adopt it or not. I would not wish to insinuate any reflections on those gentlemen who formed it. I look upon it as a great performance. It has a great deal of merit in it, and it is, perhaps, as much as any set of men could have done. Even if it be true, what gentlemen have observed, that the gentlemen who were delegates to the Federal Convention were not instructed to form a new constitution, but to amend the Confederation, this will be immaterial, if it be proper to be adopted. It will be of equal benefit to us, if proper to be adopted in the whole, or in such parts as will be necessary, whether they were expressly delegated for that purpose or not. This appears to me to be a reprehensible clause; because it seems to strike at the state legislatures, and seems to take away that power of elections which reason dictates they ought to have among themselves. It apparently looks forward to a consolidation of the government of the United States, when the state legislatures may entirely decay away.
This is one of the grounds which have induced me to make objections to the new form of government. It appears to me that the state governments are not sufficiently secured, and that they may be swallowed up by the great mass of powers given to Congress. If that be the case, such power should not be given; for, from all the notions which we have concerning our happiness and well-being, the state governments are the basis of our happiness, security, and prosperity. A large extent of country ought to be divided into such a number of states as that the people may conveniently carry on their own government. This will render the government perfectly agreeable to the genius and wishes of the people. If the United States were to consist of ten times as many states, they might all have a degree of harmony. Nothing would be wanting but some cement for their connection. On the contrary, if all the United States were to be swallowed up by the great mass of powers given to Congress, the parts that are more distant in this great empire would be governed with less and less energy. It would not suit the genius of the people to assist in the government. Nothing would support government, in such a case as that, but military coercion. Armies would be necessary in different parts of the United States. The expense which they would cost, and the burdens which they would render necessary to be laid upon the people, would be ruinous. I know of no way that is likely to produce the happiness of the people, but to preserve, as far as possible, the existence of the several states, so that they shall not be swallowed up.
It has been said that the existence of the state governments is essential to that of the general government, because [Volume 2, Page 271] they choose the senators. By this clause, it is evident that it is in the power of Congress to make any alterations, except as to the place of choosing senators. They may alter the time from six to twenty years, or to any time; for they have an unlimited control over the time of elections. They have also an absolute control over the election of the representatives. It deprives the people of the very mode of choosing them. It seems nearly to throw the whole power of election into the hands of Congress. It strikes at the mode, time, and place, of choosing representatives. It puts all but the place of electing senators into the hands of Congress. This supersedes the necessity of continuing the state legislatures. This is such an article as I can give no sanction to, because it strikes at the foundation of the governments on which depends the happiness of the states and the general government. It is with reluctance I make the objection. I have the highest veneration for the characters of the framers of this Constitution. I mean to make objections only which are necessary to be made. I would not take up time unnecessarily. As to this matter, it strikes at the foundation of every thing. I may say more when we come to that part which points out the mode of doing without the agency of the state legislatures.
Mr. Iredell. Mr. Chairman, I am glad to see so much candor and moderation. The liberal sentiments expressed by the honorable gentleman who spoke last command my respect. No time can be better employed than in endeavoring to remove, by fair and just reasoning, every objection which can be made to this Constitution. I apprehend that the honorable gentleman is mistaken as to the extent of the operation of this clause. He supposes that the control of the general government over elections looks forward to a consolidation of the states, and that the general word time may extend to twenty, or any number of years. In my humble opinion, this clause does by no means warrant such a construction. We ought to compare other parts with it. Does not the Constitution say that representatives shall be chosen every second year? The right of choosing them, therefore, reverts to the people every second year. No instrument of writing ought to be construed absurdly, when a rational construction can be put upon it. If Congress can prolong the election to any time they please, why is it said that representatives shall be chosen every second year? They must be chosen every second year; but whether in the month of March, or January, or any other month, may be ascertained, at a future time, by regulations of Congress. The word time refers only to the particular month and day within the two years. I heartily agree with the gentleman, that, if any thing in this Constitution tended to the annihilation of the state government, instead of exciting the admiration of any man, it ought to excite the resentment and execration. No such wicked intention ought to be suffered. But the gentlemen who formed the Constitution had no such object; nor do I think there is the least ground for that jealousy. The very existence of the general government depends on that of the state governments. The state legislatures are to choose the senators. Without a Senate there can be no Congress. The state legislatures are also to direct the manner of choosing the President. Unless, therefore, there are state legislatures to direct that manner, no President can be chosen. The same observation may be made as to the House of Representatives, since, as they are to be chosen by the electors of the most numerous branch of each state legislature, if there are no state legislatures, there are no persons to choose the House of Representatives. Thus it is evident that the very existence of the general government depends on that of the state legislatures, and of course, that their continuance cannot be endangered by it.
An occasion may arise when the exercise of this ultimate power in Congress may be necessary; as, for instance, if a state should be involved in war, and its legislature could not assemble, (as was the case of South Carolina, and occasionally of some other states, during the late war;) it might also be useful for this reason--lest a few powerful states should combine, and make regulations concerning elections which might deprive many of the electors of a fair exercise of their rights, and thus injure the community, and occasion great dissatisfaction. And it seems natural and proper that every government should have in itself the means of its own preservation. A few of the great states might combine to prevent any election of representatives at all, and thus a majority might be wanting to do business; but it would not be so easy to destroy the government by the non-election of senators, because one third only are to go out at a time, and all the states will be equally represented in the Senate. It is not probable this power would be abused; for, if it should be, the state legislatures would immediately resent it, and their authority over the people will always be extremely great. These reasons induce me to think that the power is both necessary and useful. But I am sensible great jealousy has been entertained concerning it; and as perhaps the danger of a combination, in the manner I have mentioned, to destroy or distress the general government, is not very probable, it may be better to incur the risk, than occasion any discontent by suffering the clause to continue as it now stands. I should, therefore, not object to the recommendation of an amendment similar to that of other states--that this power in Congress should only be exercised when a state legislature neglected or was disabled from making the regulations required.
Mr. Spencer. Mr. Chairman, I did not mean to insinuate that designs were made, by the honorable gentlemen who composed the Federal Constitution, against our liberties. I only meant to say that the words in this place were exceeding vague. It may admit of the gentleman's construction; but it may admit of a contrary construction. In a matter of so great moment, words ought not to be so vague and indeterminate. I have said that the states are the basis on which the government of the United States ought to rest, and which must render us secure. No man wishes more for a federal government than I do. I think it necessary for our happiness; but at the same time, when we form a government which must entail happiness or misery on posterity, nothing is of more consequence than settling it so as to exclude animosity and a contest between the general and individual governments. With respect to the mode here mentioned, they are words of very great extent. This clause provides that a Congress may at any [Volume 2, Page 272] time alter such regulations, except as to the places of choosing senators. These words are so vague and uncertain, that it must ultimately destroy the whole liberty of the United States. It strikes at the very existence of the states, and supersedes the necessity of having them at all. I would therefore wish to have it amended in such a manner as that the Congress should not interfere but when the states refused or neglected to regulate elections.
Mr. Bloodworth. Mr. Chairman, I trust that such learned arguments as are offered to reconcile our minds to such dangerous powers will not have the intended weight. The House of Representatives is the only democratical branch. This clause may destroy representation entirely. What does it say? "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." Now, sir, does not this clause give an unlimited and unbounded power to Congress over the times, places, and manner, of choosing representatives? They may make the time of election so long, the place so inconvenient, and the manner so oppressive, that it will entirely destroy representation. I hope gentlemen will exercise their own understanding on this occasion, and not let their judgment be led away by these shining characters, for whom, however, I have the highest respect. This Constitution, if adopted in its present mode, must end in the subversion of our liberties. Suppose it takes place in North Carolina; can farmers elect them? No, sir. The elections may be in such a manner that men may be appointed who are not representatives of the people. This may exist, and it ought to be guarded against. As to the place, suppose Congress should order the elections to be held in the most inconvenient place in the most inconvenient district; could every person entitled to vote attend at such a place? Suppose they should order it to be laid off into so many districts, and order the election to be held within each district, yet may not their power over the manner of election enable them to exclude from voting every description of men they please? The democratic branch is so much endangered, that no arguments can be made use of to satisfy my mind to it. The honorable gentleman has amused us with learned discussions, and told us he will condescend to propose amendments. I hope the representatives of North Carolina will never swallow the Constitution till it is amended.
Mr. Goudy. Mr. Chairman, the invasion of these states is urged as a reason for this clause. But why did they not mention that it should be only in cases of invasion? But that was not the reason, in my humble opinion. I fear it was a combination against our liberties. I ask, when we give them the purse in one hand, and the sword in another, what power have we left? It will lead to an aristocratical government, and establish tyranny over us. We are freemen, and we ought to have the privileges of such.
Gov. Johnston. Mr. Chairman, I do not impute any impure intentions to the gentlemen who formed this Constitution. I think it unwarrantable in any one to do it. I believe that were there twenty conventions appointed, and as many constitutions formed, we never could get men more able and disinterested than those who formed this; nor a constitution less exceptionable than that which is now before you. I am not apprehensive that this article will be attended with all the fatal consequences which the gentleman conceives. I conceive that Congress can have no other power than the states had. The states, with regard to elections, must be governed by the articles of the Constitution; so must Congress. But I believe the power, as it now stands, is unnecessary. I should be perfectly satisfied with it in the mode recommended by the worthy member on my right hand. Although I should be extremely cautious to adopt any constitution that would endanger the rights and privileges of the people, I have no fear in adopting this Constitution, and then proposing amendments. I feel as much attachment to the rights and privileges of my country as any man in it; and if I thought any thing in this Constitution tended to abridge these rights, I would not agree to it. I cannot conceive that this is the case. I have not the least doubt but it will be adopted by a very great majority of the states. For states who have been as jealous of their liberties as any in the world have adopted it, and they are some of the most powerful states. We shall have the assent of all the states in getting amendments. Some gentlemen have apprehensions that Congress will immediately conspire to destroy the liberties of their country. The men of whom Congress will consist are to be chosen from among ourselves. They will be in the same situation with us. They are to be bone of our bone and flesh of our flesh. They cannot injure us without injuring themselves. I have no doubt but we shall choose the best men in the community. Should different men be appointed, they are sufficiently responsible. I therefore think that no danger is to be apprehended.
Mr. M'Dowall. Mr. Chairman, I have the highest esteem for the gentleman who spoke last. He has amused us with the fine characters of those who formed that government. Some were good, but some were very imperious, aristocratical, despotic, and monarchical. If parts of it are extremely good, other parts are very bad.
The freedom of election is one of the greatest securities we have for our liberty and privileges. It was supposed by the member from Edenton, that the control over elections was only given to Congress to be used in case of invasion. I differ from him. That could not have been their intention, otherwise they could have expressed it. But, sir, it points forward to the time when there will be no state legislatures--to the consolidation of all the states. The states will be kept up as boards of elections. I think the same men could make a better constitution; for good government is not the work of a short time. They only had their own wisdom. Were they to go now, they would have the wisdom of the United States. Every gentleman who must reflect on this must see it. The adoption of several other states is urged. I hope every gentleman stands for himself, will act according to his own judgment, and will pay no respect to the adoption by the other states. It may embarrass us in some political difficulties, but let us attend to the interest of our constituents.[Volume 2, Page 273]
Mr. Iredell answered, that he stated the case of invasion as only one reason out of many for giving the ultimate control over elections to Congress.
Mr. Davie. Mr. Chairman, a consolidation of the states is said by some gentlemen to have been intended. They insinuate that this was the cause of their giving this power of elections. If there were any seeds in this Constitution which might, one day, produce a consolidation, it would, sir, with me, be an insuperable objection, I am so perfectly convinced that so extensive a country as this can never be managed by one consolidated government. The Federal Convention were as well convinced as the members of this house, that the state governments were absolutely necessary to the existence of the federal government. They considered them as the great massy pillars on which this political fabric was to be extended and supported; and were fully persuaded that, when they were removed, or should moulder down by time, the general government must tumble into ruin. A very little reflection will show that no department of it can exist without the state governments.
Let us begin with the House of Representatives. Who are to vote for the federal representatives? Those who vote for the state representatives. If the state government vanishes, the general government must vanish also. This is the foundation on which this government was raised, and without which it cannot possibly exist.
The next department is the Senate. How is it formed? By the states themselves. Do they not choose them? Are they not created by them? And will they not have the interest of the states particularly at heart? The states, sir, can put a final period to the government, as was observed by a gentleman who thought this power over elections unnecessary. If the state legislatures think proper, they may refuse to choose senators, and the government must be destroyed.
Is not this government a nerveless mass, a dead carcase, without the executive power? Let your representatives be the most vicious demons that ever existed; let them plot against the liberties of America; let them conspire against its happiness,--all their machinations will not avail if not put in execution. By whom are their laws and projects to be executed? By the President. How is he created? By electors appointed by the people under the direction of the legislatures--by a union of the interest of the people and the state governments. The state governments can put a veto, at any time, on the general government, by ceasing to continue the executive power. Admitting the representatives or senators could make corrupt laws, they can neither execute them themselves, nor appoint the executive. Now, sir, I think it must be clear to every candid mind, that no part of this government can be continued after the state governments lose their existence, or even their present forms. It may also be easily proved that all federal governments possess an inherent weakness, which continually tends to their destruction. It is to be lamented that all governments of a federal nature have been short-lived.
Such was the fate of the Achaean league, the Amphictyonic council, and other ancient confederacies; and this opinion is confirmed by the uniform testimony of all history. There are instances in Europe of confederacies subsisting a considerable time; but their duration must be attributed to circumstances exterior to their government. The Germanic confederacy would not exist a moment, were it not for fear of the surrounding powers, and the interest of the emperor. The history of this confederacy is but a series of factions, dissensions, bloodshed, and civil war. The confederacies of the Swiss, and United Netherlands, would long ago have been destroyed, from their imbecility, had it not been for the fear, and even the policy, of the bordering nations. It is impossible to construct such a government in such a manner as to give it any probable longevity. But, sir, there is an excellent principle in this proposed plan of federal government, which none of these confederacies had, and to the want of which, in a great measure, their imperfections may be justly attributed--I mean the principle of representation. I hope that, by the agency of this principle, if it be not immortal, it will at least be long-lived. I thought it necessary to say this much to detect the futility of that unwarrantable suggestion, that we are to be swallowed up by a great consolidated government. Every part of this federal government is dependent on the constitution of the state legislatures for its existence. The whole, sir, can never swallow up its parts. The gentleman from Edenton (Mr. Iredell) has pointed out the reasons of giving this control over elections to Congress, the principle of which was, to prevent a dissolution of the government by designing states. If all the states were equally possessed of absolute power over their elections, without any control of Congress, danger might be justly apprehended where one state possesses as much territory as four or five others; and some of them, being thinly peopled now, will daily become more numerous and formidable. Without this control in Congress, those large states might successfully combine to destroy the general government. It was therefore necessary to control any combination of this kind.
Another principal reason was, that it would operate, in favor of the people, against the ambitious designs of the federal Senate. I will illustrate this by matter of fact. The history of the little state of Rhode Island is well known. An abandoned faction have seized on the reins of government, and frequently refused to have any representation in Congress. If Congress had the power of making the law of elections operate throughout the United States, no state could withdraw itself from the national councils, without the consent of a majority of the members of Congress. Had this been the case, that trifling state would not have withheld its representation. What once happened may happen again; and it was necessary to give Congress this power, to keep the government in full operation. This being a federal government, and involving the interests of several states, and some acts requiring the assent of more than a majority, they ought to be able to keep their representation full. It would have been a solecism, to have a government without any means of self-preservation. The Confederation is the only instance of a government without such means, and is a nerveless system, as inadequate to every purpose of government as it is to the security of [Volume 2, Page 274] the liberties of the people of America. When the councils of America have this power over elections, they can, in spite of any faction in any particular state, give the people a representation. Uniformity in matters of election is also of the greatest consequence. They ought all to be judged by the same law and the same principles, and not to be different in one state from what they are in another. At present, the manner of electing is different in different states. Some elect by ballot, and others viva voce. It will be more convenient to have the manner uniform in all the states. I shall now answer some observations made by the gentleman from Mecklenburg. He has stated that this power over elections gave to Congress power to lengthen the time for which they were elected. Let us read this clause coolly, all prejudice aside, and determine whether this construction be warrantable. The clause runs thus: "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 place of choosing senators." I take it as a fundamental principle, which is beyond the reach of the general or individual governments to alter, that the representatives shall be chosen every second year, and that the tenure of their office shall be for two years; that senators be chosen every sixth year, and that the tenure of their office be for six years. I take it also as a principle, that the electors of the most numerous branch of the state legislatures are to elect the federal representatives. Congress has ultimately no power over elections, but what is primarily given to the state legislatures. If Congress had the power of prolonging the time, &c., as gentlemen observe, the same powers must be completely vested in the state legislatures. I call upon every gentleman candidly to declare, whether the state legislatures have the power of altering the time of elections for representatives from two to four years, or senators from six to twelve; and whether they have the power to require any other qualifications than those of the most numerous branch of the state legislatures; and also whether they have any other power over the manner of elections, any more than the mere mode of the act of choosing; or whether they shall be held by sheriffs, as contradistinguished from any other officer; or whether they shall be by votes, as contradistinguished from ballots, or any other way. If gentlemen will pay attention, they will find that, in the latter part of this clause, Congress has no power but what was given to the states in the first part of the same clause. They may alter the manner of holding the election, but cannot alter the tenure of their office. They cannot alter the nature of the elections; for it is established, as fundamental principles, that the electors of the most numerous branch of the state legislature shall elect the federal representatives, and that the tenure of their office shall be for two years; and likewise, that the senators shall be elected by the legislatures, and that the tenure of their office shall be for six years. When gentlemen view the clause accurately, and see that Congress have only the same power which was in the state legislature, they will not be alarmed. The learned doctor on my right (Mr. Spencer) has also said that Congress might lengthen the time of elections. I am willing to appeal to grammatical construction and punctuation. Let me read this, as it stands on paper. [Here he read the clause different ways, expressing the same sense.] Here, in the first part of the clause, this power over elections is given to the states, and in the latter part the same power is given to Congress, and extending only to the time of holding, the place of holding, and the manner of holding, the elections. Is this not the plain, literal, and grammatical construction of the clause? Is it possible to put any other construction on it, without departing from the natural order, and without deviating from the general meaning of the words, and every rule of grammatical construction? Twist it, torture it, as you may, sir, it is impossible to fix a different sense upon it. The worthy gentleman from New Hanover, (whose ardor for the liberty of his country I wish never to be damped,) has insinuated that high characters might influence the members on this occasion. I declare, for my own part, I wish every man to be guided by his own conscience and understanding, and by nothing else. Every man has not been bred a politician, nor studied the science of government; yet, when a subject is explained, if the mind is unwarped by prejudice, and not in the leading-strings of other people, gentlemen will do what is right. Were this the case, I would risk my salvation on a right decision.
Mr. Caldwell. Mr. Chairman, those things which can be may be. We know that, in the British government, the members of Parliament were eligible only for three years. They determined they might be chosen for seven years. If Congress can alter the time, manner, and place, I think it will enable them to do what the British Parliament once did. They have declared that the elections of senators are for six years, and of representatives for two years. But they have said there was an exception to this general declaration, viz., that Congress can alter them. If the Convention only meant that they should alter them in such a manner as to prevent a discontinuation of the government, why have they not said so? It must appear to every gentleman in this Convention, that they can alter the elections to what time they please. And if the British Parliament did once give themselves the power of sitting four years longer than they had a right to do, Congress, having a standing army, and the command of the militia, may, with the same propriety, make an act to continue the members for twenty years, or even for their natural lives. This construction appears perfectly rational to me. I shall therefore think that this Convention will never swallow such a government, without securing us against danger.
Mr. Maclaine. Mr. Chairman, the reverend gentleman from Guilford has made an objection which astonishes me more than any thing I have heard. He seems to be acquainted with the history of England, but he ought to consider whether his historical references apply to this country. He tells us of triennial elections being changed to septennial elections. This is an historical fact we well know, and the occasion on which it happened is equally well known. They talk as loudly of constitutional rights and privileges in England as we do here, but they have no written constitution. They have a common law,--which has been altered from year to year, for a very long period,--Magna [Volume 2, Page 275] Charta, and bill of rights. These they look upon as their constitution. Yet this is such a constitution as it is universally considered Parliament can change. Blackstone, in his admirable Commentaries, tells us that the power of the Parliament is transcendent and absolute, and can do and undo every thing that is not naturally impossible. The act, therefore, to which the reverend gentleman alludes, was not unconstitutional. Has any man said that the legislature can deviate from this Constitution? The legislature is to be guided by the Constitution. They cannot travel beyond its bounds. The reverend gentleman says, that, though the representatives are to be elected for two years, they may pass an act prolonging their appointment for twenty years, or for natural life, without any violation of the Constitution. Is it possible for any common understanding or sense to put this construction upon it? Such an act, sir, would be a palpable violation of the Constitution: were they to attempt it, sir, the country would rise against them. After such an unwarrantable suggestion as this, any objection may be made to this Constitution. It is necessary to give power to the government. I would ask that gentleman who is so much afraid it will destroy our liberties, why he is not as much afraid of our state legislature; for they have much more power than we are now proposing to give this general government. They have an unlimited control over the purse and sword; yet no complaints are made. Why is he not as much afraid that our legislature will call out the militia to destroy our liberties? Will the militia be called out by the general government to enslave the people--to enslave their friends, their families, themselves? The idea of the militia being made use of, as an instrument to destroy our liberties, is almost too absurd to merit a refutation. It cannot be supposed that the representatives of our general government will be worse men than the members of our state government. Will we be such fools as to send our greatest rascals to the general government? We must be both fools as well as villains to do so.
Gov. Johnston. Mr. Chairman, I shall offer some observations on what the gentleman said. A parallel has been drawn between the British Parliament and Congress. The powers of Congress are all circumscribed, defined, and clearly laid down. So far they may go, but no farther. But, sir, what are the powers of the British Parliament? They have no written constitution in Britain. They have certain fundamental principles and legislative acts, securing the liberty of the people; but these may be altered by their representatives, without violating their constitution, in such manner as they may think proper. Their legislature existed long before the science of government was well understood. From very early periods, you find their Parliament in full force. What is their Magna Charta? It is only an act of Parliament. Their Parliament can, at any time, alter the whole or any part of it. In short, it is no more binding on the people than any other act which has passed. The power of the Parliament is, therefore, unbounded. But, sir, can Congress alter the Constitution? They have no such power. They are bound to act by the Constitution. They dare not recede from it. At the moment that the time for which they are elected expires, they may be removed. If they make bad laws, they will be removed; for they will be no longer worthy of confidence. The British Parliament can do every thing they please. Their bill of rights is only an act of Parliament, which may be, at any time, altered or modified, without a violation of the constitution. The people of Great Britain have no constitution to control their legislature. The king, lords, and commons, can do what they please.
Mr. Caldwell observed, that whatever nominal powers the British Parliament might possess, yet they had infringed the liberty of the people in the most flagrant manner, by giving themselves power to continue four years in Parliament longer than they have been elected for--that though they were only chosen for three years by their constituents, yet they passed an act that representatives should, for the future, be chosen for seven years--that this Constitution would have a dangerous tendency--that this clause would enable them to prolong their continuance in office as long as they pleased--and that, if a constitution was not agreeable to the people, its operation could not be happy.
Gov. Johnston replied, that the act to which allusion was made by the gentleman was not unconstitutional; but that, if Congress were to pass an act prolonging the terms of elections of senators or representatives, it would be clearly unconstitutional.
Mr. Maclaine observed, that the act of Parliament referred to was passed on urgent necessity, when George I. ascended the throne, to prevent the Papists from getting into Parliament; for parties ran so high at that time, that Papists enough might have got in to destroy the act of settlement which excluded the Roman Catholics from the succession to the throne.
Mr. Spencer. The gentleman from Halifax said, that the reason of this clause was, that some states might be refractory. I profess that, in my opinion, the circumstances of Rhode Island do not appear to apply. I cannot conceive the particular cause why Rhode Island should not send representatives to Congress. If they were united in one government, is it presumed that they would waive the right of representation? I have not the least reason to doubt they would make use of the privilege. With respect to the construction that the worthy member put upon the clause, were that construction established, I would be satisfied; but it is susceptible of a different explanation. They may alter the mode of election so as to deprive the people of the right of choosing. I wish to have it expressed in a more explicit manner.
Mr. Davie. Mr. Chairman, the gentleman has certainly misconceived the matter, when he says "that the circumstances of Rhode Island do not apply." It is a fact well known of which, perhaps, he may not be possessed, that the state of Rhode Island has not been regularly represented for several years, owing to the character and particular views of the prevailing party. By the influence of this faction, who are in possession of the state government, the people have been frequently deprived of the benefit of a representation in the Union, and Congress often embarrassed by their absence. The same evil may again result from the same cause; and Congress ought, therefore, to possess constitutional power to give the people an opportunity [Volume 2, Page 276] of electing representatives, if the states neglect or refuse to do it. The gentleman from Anson has said, "that this clause is susceptible of an explanation different from the construction I put upon it." I have a high respect for his opinion, but that alone, on this important occasion, is not satisfactory: we must have some reasons from him to support and sanction this opinion. He is a professional man, and has held an office many years, the nature and duties of which would enable him to put a different construction on this clause, if it is capable of it.
This clause, sir, has been the occasion of much groundless alarm, and has been the favorite theme of declamation out of doors. I now call upon the gentlemen of the opposition to show that it contains the mischiefs with which they have alarmed and agitated the public mind, and I defy them to support the construction they have put upon it by one single plausible reason. The gentleman from New Hanover has said, in objection to this clause, "that Congress may appoint the most inconvenient place in the most inconvenient district, and make the manner of election so oppressive as entirely to destroy representation." If this is considered as possible, he should also reflect that the state legislatures may do the same thing. But this can never happen, sir, until the whole mass of the people become corrupt, when all parchment securities will be of little service. Does that gentleman, or any other gentleman who has the smallest acquaintance with human nature or the spirit of America, suppose that the people will passively relinquish privileges, or suffer the usurpation of powers unwarranted by the Constitution? Does not the right of electing representatives revert to the people every second year? There is nothing in this clause that can impede or destroy this reversion; and although the particular time of year, the particular place in a county or a district, or the particular mode in which elections are to be held, as whether by vote or ballot, be left to Congress to direct, yet this can never deprive the people of the right or privilege of election. He has also added, "that the democratical branch was in danger from this clause;" and, with some other gentlemen, took it for granted that an aristocracy must arise out of the general government. This, I take it, from the very nature of the thing, can never happen. Aristocracies grow out of the combination of a few powerful families, where the country or people upon which they are to operate are immediately under their influence; whereas the interest and influence of this government are too weak, and too much diffused, ever to bring about such an event. The confidence of the people, acquired by a wise and virtuous conduct, is the only influence the members of the federal government can ever have. When aristocracies are formed, they will arise within the individual states. It is therefore absolutely necessary that Congress should have a constitutional power to give the people at large a representation in the government, in order to break and control such dangerous combinations. Let gentlemen show when and how this aristocracy they talk of is to arise out of this Constitution. Are the first members to perpetuate themselves? Is the Constitution to be attacked by such absurd assertions as these, and charged with defects with which it has no possible connection?
Mr. Bloodworth. Mr. Chairman, the gentleman has mistaken me. When we examine the gentleman's arguments, they have no weight. He tells us that it is not probable "that an aristocracy can arise." I did not say that it would. Various arguments are brought forward in support of this article. They are vague and trifling. There is nothing that can be offered to my mind which will reconcile me to it while this evil exists--while Congress have this control over elections. It was easy for them to mention that this control should only be exerted when the state would neglect, or refuse, or be unable in case of invasion, to regulate elections. If so, why did they not mention it expressly?
It appears to me that some of their general observations imply a contradiction. Do they not tell us that there is no danger of a consolidation? that Congress can exist no longer than the states--the massy pillars on which it is said to be raised? Do they not also tell us that the state governments are to secure us against Congress? At another time, they tell us that it was unnecessary to secure our liberty by giving them power to prevent the state governments from oppressing us. We know that there is a corruption in human nature. Without circumspection and carefulness, we shall throw away our liberties. Why is this general expression used on this great occasion? Why not use expressions that were clear and unequivocal? If I trust my property with a man and take security, shall I then barter away my rights?
Mr. Spencer. Mr. Chairman, this clause may operate in such a manner as will abridge the liberty of the people. It is well known that men in power are apt to abuse it, and extend it if possible. From the ambiguity of this expression, they may put such construction upon it as may suit them. I would not have it in such a manner as to endanger the rights of the people. But it has been said that this power is necessary to preserve their existence. There is not the least doubt but the people will keep them from losing their existence, if they shall behave themselves in such a manner as will merit it.
Mr. Maclaine. Mr. Chairman, I thought it very extraordinary that the gentleman who was last on the floor should say that Congress could do what they please with respect to elections, and be warranted by this clause. The gentleman from Halifax (Mr. Davie) has put that construction upon it which reason and common sense will put upon it. Lawyers will often differ on a point of law, but people will seldom differ about so very plain a thing as this. The clause enables Congress to alter such regulations as the states shall have made with respect to elections. What would he infer from this? What is it to alter? It is to alter the time, place, and manner, established by the legislatures, if they do not answer the purpose. Congress ought to have power to perpetuate the government, and not the states, who might be otherwise inclined. I will ask the gentleman--and I wish he may give me a satisfactory answer--if the whole is not in the power of the people, as well when the elections are regulated by Congress, as when by the states. Are not both the agents of the people, amenable to them? Is there any thing in this Constitution which gives them the power to perpetuate the sitting [Volume 2, Page 277] members? Is there any such strange absurdity? If the legislature of this state has the power to fix the time, place, and manner, of holding elections, why not place the same confidence in the general government? The members of the general government, and those of the state legislature, are both chosen by the people. They are both from among the people, and are in the same situation. Those who served in the state legislature are eligible, and may be sent to Congress. If the elections be regulated in the best manner in the state government, can it be supposed that the same man will lose all his virtue, his character and principles, when he goes into the general government, in order to deprive us of our liberty?
The gentleman from New Hanover seems to think it possible Congress will so far forget themselves as to point out such improper seasons of the year, and such inconvenient places for elections, as to defeat the privilege of the democratic branch altogether. He speaks of inconsistency in the arguments of the gentlemen. I wish he would be consistent himself. If I do not mistake the politics of that gentleman, it is his opinion that Congress had sufficient power under the Confederation. He has said, without contradiction, that we should be better without the Union than with it; that it would be better for us to be by ourselves than in the Union. His antipathy to a general government, and to the Union, is evidently inconsistent with his predilection for a federal democratic branch. We should have no democratic part of the government at all, under such a government as he would recommend. There is no such part in the old Confederation. The body of the people had no agency in that system. The members of the present general government are selected by the state legislatures, and have the power of the purse, and other powers, and are not amenable to the people at large. Although the gentleman may deny my assertions, yet this argument of his is inconsistent with his other assertions and doctrines. It is impossible for any man in his senses to think that we can exist by ourselves, separated from our sister states. Whatever gentlemen may pretend to say on this point, it must be a matter of serious alarm to every reflecting mind, to be disunited from the other states.
Mr. Bloodworth begged leave to wipe off the assertion of the gentleman; that he could not account for any expression which he might drop among a laughing, jocose people, but that it was well known he was for giving power to Congress to regulate the trade of the United States; that he had said that Congress had exercised power not given them by the Confederation, and that he was accurate in the assertion; that he was a freeman, and was under the control of no man.
Mr. Maclaine replied, that he meant no aspersions; that he only meant to point out a fact; that he had committed mistakes himself in argument, and that he supposed the gentleman not more infallible than other people.
Mr. J. Taylor wished to know why the states had control over the place of electing senators, but not over that of choosing the representatives.
Mr. Spaight answered, that the reason of that reservation was to prevent Congress from altering the places for holding the legislative assemblies in the different states.
Mr. James Galloway. Mr. Chairman, in the beginning I found great candor in the advocates of this government, but it is not so towards the last. I hope the gentleman from Halifax will not take it amiss, if I mention how he brought the motion forward. They began with dangers. As to Rhode Island being governed by a faction, what has that to do with the question before us? I ask, What have the state governments left for them, if the general government is to be possessed of such extensive powers, without control or limitation, without any responsibility to the states? He asks, How is it possible for the members to perpetuate themselves? I think I can show how they can do it. For instance, where they to take the government as it now stands organized. We send five members to the House of Representatives in the general government. They will go, no doubt, from or near the seaports. In other states, also, those near the sea will have more interest, and will go forward to Congress; and they can, without violating the Constitution, make a law continuing themselves, as they have control over the place, time, and manner, of elections. This may happen; and where the great principles of liberty are endangered, no general, indeterminate, vague expression ought to be suffered. Shall we pass over this article as it is now? They will be able to perpetuate themselves as well as if it had expressly said so.
Mr. Steele. Mr. Chairman, the gentleman has said that the five representatives which this state shall be entitled to send to the general government, will go from the seashore. What reason has he to say they will go from the seashore? The time, place, and manner, of holding elections are to be prescribed by the legislatures. Our legislature is to regulate the first election, at any event. They will regulate it as they think proper. They may, and most probably will, lay the state off into districts. Who are to vote for them? Every man who has a right to vote for a representative to our legislature will ever have a right to vote for a representative to the general government. Does it not expressly provide that the electors in each state shall have the qualifications requisite for the most numerous branch of the state legislature? Can they, without a most manifest violation of the Constitution, alter the qualifications of the electors? The power over the manner of elections does not include that of saying who shall vote:--the Constitution expressly says that the qualifications which entitle a man to vote for a state representative. It is, then, clearly and indubitably fixed and determined who shall be the electors; and the power over the manner only enables them to determine how these electors shall elect--whether by ballot, or by vote, or by any other way. Is it not a maxim of universal jurisprudence, of reason and common sense, that an instrument or deed of writing shall be so construed as to give validity to all parts of it, if it can be done without involving any absurdity? By construing it in the plain, obvious way I have mentioned, all parts will be valid. By the way, gentlemen suggest the most palpable contradiction, and absurdity will follow. To say that they shall go from the sea-shore, and be able to perpetuate themselves, is a most extravagant idea. Will the members of Congress deviate from their duty without any prospect of advantage to [Volume 2, Page 278] themselves? What interest can they have to make the place of elections inconvenient? The judicial power of that government is so well constructed as to be a check. There was no check in the old Confederation. Their power was, in principle and theory, transcendent. If the Congress make laws inconsistent with the Constitution, independent judges will not uphold them, nor will the people obey them. A universal resistance will ensue. In some countries, the arbitrary disposition of rulers may enable them to overturn the liberties of the people; but in a country like this, where every man is his own master, and where almost every man is a freeholder, and has the right of election, the violations of a constitution will not be passively permitted. Can it be supposed that in such a country the rights of suffrage will be tamely surrendered? Is it to be supposed that 30,000 free persons will send the most abandoned wretch in the district to legislate for them in the general legislature? I should rather think they would choose men of the most respectable characters.
Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.
© 1987 by The University of Chicago