Federalist Paper No. 59
Concerning the Power of Congress to Regulate the Election of Members
From the New York Packet.
Friday, February 22, 1788.
HAMILTON
To the People of the State of New York.
THE natural order of the subject leads us to consider, in this place, that
provision of the Constitution which authorizes the national legislature to regulate, in
the last resort, the election of its own members. It is in these words: "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. "1
This provision has not only been declaimed against by those who condemn the Constitution
in the gross, but it has been censured by those who have objected with less latitude and
greater moderation; and, in one instance it has been thought exceptionable by a gentleman
who has declared himself the advocate of every other part of the system. I am greatly
mistaken, notwithstanding, if there be any article in the whole plan more completely
defensible than this. Its propriety rests upon the evidence of this plain proposition,
that EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION.
Every just reasoner will, at first sight, approve an adherence to this rule, in
the work of the convention; and will disapprove every deviation from it which may not
appear to have been dictated by the necessity of incorporating into the work some
particular ingredient, with which a rigid conformity to the rule was incompatible. Even in
this case, though he may acquiesce in the necessity, yet he will not cease to regard and
to regret a departure from so fundamental a principle, as a portion of imperfection in the
system which may prove the seed of future weakness, and perhaps anarchy. It will not be
alleged, that an election law could have been framed and inserted in the Constitution,
which would have been always applicable to every probable change in the situation of the
country; and it will therefore not be denied, that a discretionary power over elections
ought to exist somewhere. It will, I presume, be as readily conceded, that there were only
three ways in which this power could have been reasonably modified and disposed: that it
must either have been lodged wholly in the national legislature, or wholly in the State
legislatures, or primarily in the latter and ultimately in the former.
The last mode has, with reason, been preferred by the convention. They have
submitted the regulation of elections for the federal government, in the first instance,
to the local administrations; which, in ordinary cases, and when no improper views
prevail, may be both more convenient and more satisfactory; but they have reserved to the
national authority a right to interpose, whenever extraordinary circumstances might render
that interposition necessary to its safety. Nothing can be more evident, than that an
exclusive power of regulating elections for the national government, in the hands of the
State legislatures, would leave the existence of the Union entirely at their mercy. They
could at any moment annihilate it, by neglecting to provide for the choice of persons to
administer its affairs. It is to little purpose to say, that a neglect or omission of this
kind would not be likely to take place. The constitutional possibility of the thing,
without an equivalent for the risk, is an unanswerable objection. Nor has any satisfactory
reason been yet assigned for incurring that risk. The extravagant surmises of a
distempered jealousy can never be dignified with that character.
If we are in a humor to presume abuses of power, it is as fair to presume them
on the part of the State governments as on the part of the general government. And as it
is more consonant to the rules of a just theory, to trust the Union with the care of its
own existence, than to transfer that care to any other hands, if abuses of power are to be
hazarded on the one side or on the other, it is more rational to hazard them where the
power would naturally be placed, than where it would unnaturally be placed. Suppose an
article had been introduced into the Constitution, empowering the United States to
regulate the elections for the particular States, would any man have hesitated to condemn
it, both as an unwarrantable transposition of power, and as a premeditated engine for the
destruction of the State governments? The violation of principle, in this case, would have
required no comment; and, to an unbiased observer, it will not be less apparent in the
project of subjecting the existence of the national government, in a similar respect, to
the pleasure of the State governments.
An impartial view of the matter cannot fail to result in a conviction, that
each, as far as possible, ought to depend on itself for its own preservation. As an
objection to this position, it may be remarked that the constitution of the national
Senate would involve, in its full extent, the danger which it is suggested might flow from
an exclusive power in the State legislatures to regulate the federal elections. It may be
alleged, that by declining the appointment of Senators, they might at any time give a
fatal blow to the Union; and from this it may be inferred, that as its existence would be
thus rendered dependent upon them in so essential a point, there can be no objection to
intrusting them with it in the particular case under consideration. The interest of each
State, it may be added, to maintain its representation in the national councils, would be
a complete security against an abuse of the trust. This argument, though specious, will
not, upon examination, be found solid. It is certainly true that the State legislatures,
by forbearing the appointment of senators, may destroy the national government.
But it will not follow that, because they have a power to do this in one
instance, they ought to have it in every other. There are cases in which the pernicious
tendency of such a power may be far more decisive, without any motive equally cogent with
that which must have regulated the conduct of the convention in respect to the formation
of the Senate, to recommend their admission into the system. So far as that construction
may expose the Union to the possibility of injury from the State legislatures, it is an
evil; but it is an evil which could not have been avoided without excluding the States, in
their political capacities, wholly from a place in the organization of the national
government. If this had been done, it would doubtless have been interpreted into an entire
dereliction of the federal principle; and would certainly have deprived the State
governments of that absolute safeguard which they will enjoy under this provision.
But however wise it may have been to have submitted in this instance to an
inconvenience, for the attainment of a necessary advantage or a greater good, no inference
can be drawn from thence to favor an accumulation of the evil, where no necessity urges,
nor any greater good invites. It may be easily discerned also that the national government
would run a much greater risk from a power in the State legislatures over the elections of
its House of Representatives, than from their power of appointing the members of its
Senate. The senators are to be chosen for the period of six years; there is to be a
rotation, by which the seats of a third part of them are to be vacated and replenished
every two years; and no State is to be entitled to more than two senators; a quorum of the
body is to consist of sixteen members.
The joint result of these circumstances would be, that a temporary combination
of a few States to intermit the appointment of senators, could neither annul the existence
nor impair the activity of the body; and it is not from a general and permanent
combination of the States that we can have any thing to fear. The first might proceed from
sinister designs in the leading members of a few of the State legislatures; the last would
suppose a fixed and rooted disaffection in the great body of the people, which will either
never exist at all, or will, in all probability, proceed from an experience of the
inaptitude of the general government to the advancement of their happiness in which event
no good citizen could desire its continuance. But with regard to the federal House of
Representatives, there is intended to be a general election of members once in two years.
If the State legislatures were to be invested with an exclusive power of
regulating these elections, every period of making them would be a delicate crisis in the
national situation, which might issue in a dissolution of the Union, if the leaders of a
few of the most important States should have entered into a previous conspiracy to prevent
an election. I shall not deny, that there is a degree of weight in the observation, that
the interests of each State, to be represented in the federal councils, will be a security
against the abuse of a power over its elections in the hands of the State legislatures.
But the security will not be considered as complete, by those who attend to the
force of an obvious distinction between the interest of the people in the public felicity,
and the interest of their local rulers in the power and consequence of their offices. The
people of America may be warmly attached to the government of the Union, at times when the
particular rulers of particular States, stimulated by the natural rivalship of power, and
by the hopes of personal aggrandizement, and supported by a strong faction in each of
those States, may be in a very opposite temper. This diversity of sentiment between a
majority of the people, and the individuals who have the greatest credit in their
councils, is exemplified in some of the States at the present moment, on the present
question. The scheme of separate confederacies, which will always nultiply the chances of
ambition, will be a never failing bait to all such influential characters in the State
administrations as are capable of preferring their own emolument and advancement to the
public weal. With so effectual a weapon in their hands as the exclusive power of
regulating elections for the national government, a combination of a few such men, in a
few of the most considerable States, where the temptation will always be the strongest,
might accomplish the destruction of the Union, by seizing the opportunity of some casual
dissatisfaction among the people (and which perhaps they may themselves have excited), to
discontinue the choice of members for the federal House of Representatives.
It ought never to be forgotten, that a firm union of this country, under an
efficient government, will probably be an increasing object of jealousy to more than one
nation of Europe; and that enterprises to subvert it will sometimes originate in the
intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of
them. Its preservation, therefore ought in no case that can be avoided, to be committed to
the guardianship of any but those whose situation will uniformly beget an immediate
interest in the faithful and vigilant performance of the trust.
PUBLIUS.
(Continue to Page 60)
1 1st clause, 4th section, of the 1st article.
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