Article 1, Section 2, Clause 2

[Volume 2, Page 77]

Document 8

House of Representatives, Maryland Contested Election

12, 16 Nov. 1807Annals 17:882--86, 911--15

[12 Nov.]

[Mr. Randolph. The] House had never been called upon to make a more important decision than the one now proposed. He wished he was prepared for the discussion. He had scarcely run over the report of the Committee of Elections; but it was one of those questions upon which his mind had been so long unalterably fixed, that he could not refrain from the endeavor to warn the Committee of the dangerous ground which they were invited to tread. In undertaking to decide upon the validity of the law of the State, they touched upon a subject which should never be approached but under the most imperious necessity, and where no shadow of doubt could hang upon their decision. It might be said that with the reasoning of the report they had nothing to do; it was the committee's reasoning, not theirs; that they acted on the naked resolution only. But it was obvious to the meanest capacity, that when the committee thought the fact of Mr. McCreery's residence in Baltimore so unimportant that no question was taken upon it, and grounded their resolution solely upon the unconstitutionality of the law requiring it, that House could not affirm the resolution without affirming, at the same time, the only point upon which the committee had decided in favor of the sitting member. What were they required to do? To declare the law of Maryland, long reverenced and obeyed, under which successive elections had been held, and never before questioned--to pronounce this law to be a dead letter, entitled to no respect, even from her own citizens, and to absolve them from all obedience to it! Was it matter of surprise that the members of the House were startled at an innovation so daring and so dangerous? He had laid it down as a principle not to be questioned, that Congress should never undertake to pronounce upon State regulations, but in cases too clear to admit a contest, and where the decision could not be evaded without manifest detriment to the public good. If he were called upon to establish a criterion, an infallible touchstone of the soundness of political principles, it should be made to consist of nothing so much as a sacred regard for the rights of the States. An enlarged and liberal construction of State rights was, with him, an indispensable requisite, and he could never give his confidence to a politician indisposed to such a construction. He viewed the proposed measure but as the commencement of a series, as the entering wedge. If they began with declaring one law of one State unconstitutional, where were they to stop? They might, they would go on (it was the natural tendency of power never to be satiated as long as there was anything left to devour) until the State Governments, stripped of all authority, rendered contemptible in the eyes of the people for their imbecility, and odious for their expense, mere skeletons of Governments, the shadows of their former greatness, should be forever abolished, and a great consolidated empire established upon their ruins. Mr. R. looked forward to such an event as the death warrant of the existing Constitution, and the people's liberties. If they wished to preserve the Constitution, they must learn to respect the rights of the States, and not bring the whole artillery of the Federal Government to bear upon them. In such a contest, the States must fall, and when they did fall, there was an end of all republican government in the country.

The second paragraph of the second section of the first article of the Constitution had, to his extreme surprise, been construed by the Committee of Elections as restricting the States from annexing qualifications to a seat in the House of Representatives. He could not view it in that light. Mark the distinctions between the first and second paragraphs. The first is affirmative and positive. "They shall have the qualifications necessary to the electors of the most numerous branch of the State Legislature." The second merely negative. "No person shall be a Representative who shall not have attained the age of twenty-five years," &c. No man could be a member without these requisites; but it did not follow that he who had them was entitled to set at naught such other requisites as the several States might think proper to demand. If the Constitution had meant (as was contended) to have settled the qualification of members, its words would have naturally ran thus: "Every person who has attained the age of twenty-five years, and been seven years a citizen of the United States, and who shall, when elected, be an inhabitant of the State from which he shall be chosen, shall be eligible to a seat in the House of Representatives." But so far from fixing the qualifications of members of that House, the Constitution merely enumerated a few disqualifications within which the States were left to act. It said to the States, you have been in the habit of electing young men barely of age; you shall send us none but such as are five and twenty: some of you have elected persons just naturalized; you shall not elect any to this House who have not been seven years citizens of the United States. Sometimes mere sojourners and transient persons have been clothed with legislative authority; you shall elect none whom your laws do not consider as inhabitants. Thus guarding against too great laxity in the State regulations, by general and negative provisions, leaving them, however, within the limits of those restrictions, to act for themselves; to consult the genius, habits, and if you will, the prejudices of their people.

The first paragraph which he had read was positive and affirmative. By it, every person having the qualification requisite to an elector of the most numerous branch of his State Legislature, was entitled to vote for members of the House of Representatives. Yet, nevertheless, the qualification rested with the State. They might make it a part of the qualification of an elector, that he should reside within his district, county, or borough. Would it not be absurd to [Volume 2, Page 78] say that a man might take his seat in that House, who, at the same time, was not qualified to vote for a member of it? It had always been supposed that the elected should possess higher qualifications than the elector; yet here it would be entirely reversed. And why should it be supposed that whilst the Constitution had vested in the State the greater power, that which was most capable of abuse, the unlimited right of prescribing the qualifications of the voter, it had denied to them, by a forced implication, the right of prescribing the qualification of the person voted for, having respect, however, to the disqualifications enumerated in it? The construction of the Constitution, for which he had contended, was so obvious and natural, that it had been adopted by the States, and acted upon from the commencement of the Government, without any man dreaming of, or starting an objection to it. And the uniform practice of near twenty years, and the laws of the States in which the practice originated, were to be overturned at once, with as little ceremony as they would change one of their rules. If the doctrine of the Committee of Elections be sanctioned, Mr. R. said he did not know by what authority he himself could claim his seat. The law of Virginia, under which he held it, was equally unconstitutional with the law of Maryland. Indeed, it might be demonstrated, perhaps, that we had been living for years under an unconstitutional Government. Laws could not be valid which were passed by persons unconstitutionally elected. We should rip up the Government to its very foundations. The State of Virginia appointed her electors by a general ticket, (to keep out the heathen,) but each elector was to come from a particular district, notwithstanding twenty-four separate districts sent twenty-four electors by general ticket. If the State had no right to prescribe that the elector should be a resident of his district, the President had been unconstitutionally elected, in the first instance, by the electors, and in the second by members of that House voting by States, which members themselves had no right to their seats, the law under which they were appointed being null, void, and of no effect. Were gentlemen prepared for such conclusions as these?

Mr. R. said a gentleman from Maryland had obliged him by calling his attention to that article of the Constitution which enjoins that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." Now, if it were laid down as a principle that the State had no right to require the residence of a member of that House within his district, the whole representation of Maryland might be taken (as they would be taken) from the town of Baltimore. Transient persons from other States, happening to arrive at Baltimore on the day before the election, who, if elected, would declare their determination to become permanent residents, might be returned as members of that House, and must maintain their seats under this decision. The House of Representatives would become a mere shadow, a mockery of representation; not such as the people were attached to, in support of their claim to which they had bled, but such a representation as an English lawyer allowed us to possess in the British House of Commons, when he discovered that the different grants in America, being held as part and parcel of the manor of East Greenwich, all the Colonies were represented by the knights of the shire for Kent. He believed they would possess just as much knowledge of the interest of their constituents in the one case, as has been exhibited in the other, and would demonstrate the same sort of care of their persons and purses. Mr. R. said he held residence within the body of the county or district, to be of the very essence of representation. To be a good Representative, a man must not only reside among the people, he must be one of them, bound to them by every tie of habit, interest, and affection; not a stranger, having no common feeling with them, known to them only by report, and imposed upon them by cabal, intrigue, and corruption.

He believed there were no gentlemen of that House who had maintained a more uninterrupted harmony with each other, than that which subsisted between himself and the two gentlemen from Baltimore, (Messrs. Moore and McCreery.) Their whole intercourse had consisted of an interchange of civilities and courtesies. But this could not affect his opinion upon the present question. But whilst he thought Mr. McCreery certainly, and Mr. Moore possibly, not entitled to a seat, he could not agree with a gentleman from North Carolina, that Mr. Barney was duly elected. He would never consent to a man's sitting in that House upon the votes of a minority of the qualified electors of his district. He respected the rights of the people not less than the rights of the States. If a majority of the electors had voted for an unqualified person, believing him to be qualified, he believed the election should be set aside, and it should be put into the power of the people to send the man of their choice, who should be duly qualified. Mr. R. said that the votes not being given in exact conformity to law, perhaps the whole election should be set aside; but he inclined to the opinion that Mr. Moore was duly elected as the county member; that the votes given to Mr. McCreery were under the idea that he still continued a resident of the city; that being unqualified, his seat should be vacated, and a new writ issued to fill the vacancy.

If the report of the Committee of Elections should be affirmed, it would be an era in the history of this Government. For the first time, and when the nation was supposed to be under the guidance of men supposed to be friendly to the interests of the States and people, the law of a State was to be declared unconstitutional. Before the Committee undertook to pronounce this sentence, to set this awful precedent, it behooved them to pause and consider well. This decision, said Mr. R., will not be final. It will be but the forerunner of a long series of acts, abrogating the laws and usages of the States, endeared to the people by habit, and sanctified by reason. Before you enter upon this fatal act, be you well assured that the right is indisputably your own, and that you are called upon to exercise it by considerations which it would be criminal to resist. Beware lest, whilst you proudly assert your power, you do not meet the reprobation of the great body of the American people.

[16 Nov.]

Mr. Key: The Convention who formed the Constitution [Volume 2, Page 79] of the United States, represented not the States, but the people of the United States. They met to form not a State government, but a National Government for the people of the United States. The sovereignty of each State was solemnly guarantied by the Constitution, and as each State, whether great or small, was equally sovereign and independent, each State is equally represented in the Senate of the United States; each State sends two members; and this is the federative feature in our Constitution; but the House of Representatives was intended as the immediate representation of the people of the United States. The Constitution begins: "We, the people of the United States;" and the Constitution having defined the qualifications of the electors, it proceeds to define those of the Representative, or elected. It was surely competent to the Convention, who represented the people of the United States, to say what qualifications their agent, Representative, or law-maker, should possess, and they accordingly fix three: 1st, That he shall be above the age of twenty-five. 2d. Seven years a citizen of the United States. And, 3d, An inhabitant, when elected, of the State in which he shall be chosen. Uniformity could not, I have shown, be obtained as to the qualification of the electors; but it was most desirable in the elected, and, as it could be easily obtained, is accordingly specified in the Constitution; and the expression of these qualifications in the Constitution, is the exclusion of all others; so, to define the qualifications of the elected, was within the power of the Convention, was their duty, and is set forth in the Constitution itself.

But it is objected that the expressions used in the Constitution are negative ones, and do not prevent the States from superadding other qualifications. To this I answer, first, that if the words are changed into positive instead of negative terms, it makes no difference in the meaning; for instance, each Representative shall be above the age of twenty-five, &c., creates no difference in the construction or meaning of the article. You may make a new article to remove the difficulty, but the present one cannot be altered in signification, whether the terms remain negative, or are changed to affirmative ones. I will hereafter consider the effect of these words, when used to describe the qualifications of President.

Secondly. As to the power of the States to superinduce other qualifications to the three enumerated in the Constitution of the United States, I say, and I lay it down as a political truth, that the States, in their sovereign capacities, have no power, right or authority to interfere with the elections of Representatives to Congress, except so far as the Constitution of the United States gives them special powers so to do. By what authority do the several States interfere in elections of Representatives to Congress? Let each man honestly put this question to himself. Is it under the principles of State sovereignty? No. By what authority, then? I answer, by the express authority of the Constitution of the United States, in these words; first paragraph of fourth section of article first: "The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing Senators." Every man acquainted with our political institutions must say that the State Legislatures derive their authority from the above article, to interfere with the United States elections. It was impracticable for the Convention to introduce an election law into the Constitution; they, therefore, left certain powers with the States. What are those powers? To regulate the time, place, and manner of holding elections. It is a special, limited power, for particular designated objects. The first branch of the power gives authority to the State Legislatures to regulate the time of holding the election; surely the time of holding the election has no relation to the previous residence or qualification of the candidate. Secondly. The State Legislatures may regulate the place of holding elections; manifestly this power has no reference to the qualification of the candidate. And thirdly: The State Legislatures may regulate the manner of holding elections. Now the manner of holding an election has no connexion with the previous residence or qualification of a candidate; but it implies that the election may be viva voce, by ballot, by districts for the convenience of the voters, or by the States in a general ticket. When the Constitution designates three qualifications, and no more, and when that same Constitution gives to the States the limited power to prescribe the time, place, and manner of holding elections, can any reasonable man believe that the States have power to add qualifications of age, property, or residence? If the States have power to add one qualification, they have power to create all. If they can make one year's previous residence in a district necessary, they have equal power to make forty necessary; and if they can limit the residence (as in this case of McCreery) to a particular part of the district, they may to a particular house in the district, and so localize a man as to take all power of election from the people; totally destroy the elective franchise. They may say, with equal power, that no man under £1,000 a year shall be a Representative. Mr. Chairman, the people of every State in the Union have a direct interest in every member of the House of Representatives; these members do not represent, in this House, the people of any particular State, but the people of the United States generally, and are competent to raise taxes from the whole people of the United States, though all the Representatives of any one State should oppose the law, and to bind all the people in every State by their votes and acts: hence the people in each State are interested in the qualifications of the Representatives of every State, and no one State can destroy the right. It was from this great principle that every Representative, from whatever State he comes, may, by his acts and votes, bind the citizens of other States, declare war, or lay taxes, that the Constitution defined the qualifications of the elected; limited the power of the States simply to the time, place, and manner of holding the elections; and declared, in terms too plain to be perverted, "We the people" of the United States have declared who may elect, and who be elected, and we leave to the States (until Congress shall otherwise direct) the power to prescribe the time, place, and manner of letting such qualified electors choose such qualified Representatives.

It has been said, but faintly relied on, that if the States [Volume 2, Page 80] have power to fix election districts for the electors, they may equally locate the Representative. But this is a great mistake. The Constitution, in permitting the States to determine the manner of holding elections, permits them, if it suits their convenience, to hold them in districts; but the attempt to curtail and rob the people of their elective franchise, by making the eligibility of the candidate depend on the locality of his residence, is out of their power, and not given to them by the Constitution. As to the propriety and policy of such power being placed in a State, it is not now a question. We are not framing a constitution. We are examining where it is placed by our Constitution. If it is not well placed, there is a Constitutional mode of altering it.

But gentlemen say that the States, for twenty years past, have added qualifications of residence to Representatives. To this I answer, that if the Representative is a resident of the district, he must, ex necessitate, be of the State and of course have the Constitutional qualification. But I perceive great danger in this doctrine. Violations of the Constitution, by some of the States, are now cited as precedents from which destructive conclusions are drawn, although the cases cited have never been acted on. Thus the assumption of power by the Legislatures of some States, is made to justify itself. If these innovations, thus practised, and never brought judicially into view of this House, are permitted to go on, they will, in time, like water dropping on a stone, wear away the very substance of the Constitution.

Now is the time to act on the subject. It is fairly before us on the report of the committee; and in what capacity do we act? In our judicial capacity, as judges, under these words in the first article of the fith section: "Each House shall be the judge of the elections, returns, and qualifications of its own members." We have no discretion as a legislative body. We cannot look into the policy or propriety of the qualifications. We are sworn to support the Constitution. We sit as judges under it, and it is our bounden duty to declare if the State of Maryland has violated the United States Constitution, by imposing on a Representative other qualifications than that instrument requires.

It is a sound rule, in construing instruments, to examine the different parts of them, and if the same words are used on a similar subject, they must have the same interpretation. I pass by the Senatorial qualifications, where the same negative expressions are used. I will proceed to the qualifications of the President of the United States, article 2, section 1, paragraph 5: "No person, except a natural born citizen, or a citizen of the United States at the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States." The expressions used in this article are in negative terms, in the same manner as those used with respect to qualifications of the Representatives; and does any reasonable man, and does any friend of the Constitution, say that the States can superinduce or add any other qualification to the President than those designated by the Constitution? If negative expressions apply to one case, so they do to the other. If the doctrine of reserved powers applies to one case, so it does to the other. What would be the absurd consequence of investing the State sovereignties with power to add other qualifications to the President? The nine small States might add qualifications of age, residence, or property, and the eight large States, from their numbers, might elect a President without any of the qualifications limited by the majority of the States. What a singular phenomenon this would produce! A President elected by a large majority of the electors without the qualifications prescribed by a majority of the States? An argument producing such absurdities need not be pressed further. It is impossible to let the States interfere with the qualifications of the Representatives, and yet restrain them from interfering with the qualifications of the President. Very nearly the same expressions are used in each case in the same instrument, defining the qualifications.

A distinction is attempted which cannot be maintained, viz: "that the President is elected for the United States, and that no State can alter the qualifications in which all have an interest." I admit it; and this argument is most strongly in my favor, for all the citizens of the United States have an interest in each Representative, and therefore no State can alter the qualifications of a Representative; each Representative may, by his single voice, declare war or lay taxes. He who can command the sword and the purse of the people must represent them; and consequently each member must represent the people of the United States, not the people of his State; for to say that a person can, by his voice, lay taxes on persons whom he does not represent, or make them go to war, is a principle hostile to republicanism, and tears up the foundation of our Government.

It is said the States ought to have power to add qualifications of residence, or the people may choose transient persons; but this argument proves too much, because, when pushed far, it proves the people not competent to self-government.

I derive some consolation from the circumstance that I am a young member, of little or no political influence; hence, my arguments have nothing to recommend them but their intrinsic weight, and, in a Constitutional question, this is most desirable. We should be on our guard against the high character and influence of the gentleman from Virginia, whose opinions, from his talents and standing in society, may be received as correct, without accurately investigating them. But, is my doctrine new, Mr. Chairman? No, sir; it is a doctrine coeval with the Constitution, and supported by our ablest men. In a work of high celebrity, The Federalist, composed by Jay, Hamilton, and Madison, men eminently distinguished for their patriotism and their talents, and who, with dignified reputation, have filled the highest offices in our country, this doctrine is explicitly stated and ably maintained. The same doctrine is supported in the debates in the Virginia Convention, where some illustrious characters exhibited their acknowledged talents. There, sir, an objection was taken, that there was no freehold qualification in the Representative, the darling object of Virginia. Those who made this objection, never supposed the qualifications were not fixed by the Constitution; for, men of such talents and reputation [Volume 2, Page 81] would never have urged that as an objection to the Constitution if, for a moment, they had supposed the Legislatures of the States competent to make such alteration.

The Founders' Constitution
Volume 2, Article 1, Section 2, Clause 2, Document 8
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.