FReeper Book Club: The Debate over the Constitution, Federalist #59

After an absence of several months, Alexander Hamilton returns to take up the issue of the conduct of federal elections.

² 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.

³ 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.” ^*

⁴ 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.

⁵ I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this.

⁶ Its propriety rests upon the evidence of this plain proposition: that every government ought to contain in itself the means of its own preservation.

⁷ 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.

⁸ 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.

⁹ 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.

¹⁰ 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.

¹² 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.

¹³ 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.

¹⁴ They could at any moment annihilate it by neglecting to provide for the choice of persons to administer its affairs.

¹⁵ It is to little purpose to say that a neglect or omission of this kind would not be likely to take place.

¹⁶ The constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection.

¹⁷ Nor has any satisfactory reason been yet assigned for incurring that risk.

¹⁸ The extravagant surmises of a distempered jealousy can never be dignified with that character.

¹⁹ 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.

²⁰ 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.

²¹ 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?

²² 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.

²³ 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.

²⁴ 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.

²⁵ 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 entrusting them with it in the particular case under consideration.

²⁶ 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.

²⁸ It is certainly true that the state legislatures, by forbearing the appointment of senators, may destroy the national government.

²⁹ 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.

³⁰ 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.

³¹ 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.

³² 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.

³³ 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.

³⁴ 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.

³⁵ 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.

³⁶ 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 anything to fear.

³⁷ 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.

³⁸ But with regard to the federal House of Representatives, there is intended to be a general election of members once in two years.

³⁹ 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.

⁴⁰ 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.

⁴¹ 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.

⁴² 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 [rivalry] 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.

⁴³ 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.

⁴⁴ The scheme of separate confederacies, which will always multiply 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.

⁴⁵ 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.

⁴⁶ 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.

⁴⁷ 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.

Hamilton has returned, as would be evidenced by the change in literary style if not always in the byline. His is more convoluted than Madison’s, quite in keeping with contemporary practice, but to the modern eye somewhat difficult in places: double, even triple negatives, and a liberal sprinkling of dependent clauses that force the reader to multiple readings to place the binary switches in their correct position.

Once that is done, the meaning is quite clear, excesses in rhetoric contrasted by spare and lucid logic underlying them. His topic in this essay is a defense against critics, notably Brutus in his #4 essay, who claim to have seen in Article I, Section 4, a loophole through which a small number of men within the federal government, as few as 17 if Brutus’ math holds (Brutus 4-28), may direct the elections within a state to areas most sympathetic to their aims. Specifically, Brutus contends that the federal government might declare a single district in a state – New York is his example – that has a large center of population, and locating all elections therein to be inside the urban core, thereby swaying the electorate to the urban and educated (Brutus 4-53).

For Brutus the anti-Federalist, the solution was to be found in placing a provision in the Constitution for the federal government to declare multiple voting districts within the states (Brutus 4-63). In an amusing reversal of roles, Hamilton the Federalist dismisses the plan as placing too much power in the hands of the federal government (21). Brutus’ principle seems to him sound.

^{Brutus 4-55} One would think that if anything was necessary to be made a fundamental article of the original compact, it would be that of fixing the branches of the legislature so as to put it out of its power to alter itself by modifying the election of its own members at will and pleasure.

Hamilton counters with a countervailing principle that to him seems just as valid.

⁶ Its [the provision’s] propriety rests upon the evidence of this plain proposition: that every government ought to contain in itself the means of its own preservation.

Preservation? Yes, says Hamilton, for while Brutus has been concentrating on the peril of the state governments at the hands of the federal, there is also to be considered the peril of the federal government at the hands of a small number of influential states.

¹⁹ 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.

For Hamilton the answer to both of these scenarios lies in placing the ability to declare the times and places of election within that middle ground between state and federal government, where it resides to this day.

It is a straightforward provision, but in practice it would walk a twisted path. Both state and federal governments would, in time, employ the deliberate manipulation of districting, to be known as “gerrymandering”, in order to influence the outcomes of elections. Amusingly, it would be done first and “primarily” by the states, but in more extraordinary circumstances, “ultimately”, by the federal government, perfectly consistent with Hamilton’s arguments, but it seems safe to say not precisely what he had in mind.

Hamilton proceeds to examine cases. The states already have the power to block the federal government by simply refusing to name senators (28), although such an action would require enough states to pull the Senate below a quorum, and is guarded against by only one-third of the Senate being subject to election at any single biennial election (35). Inasmuch as each state had only two senators, that action would need to be coordinated by a majority of the states to be effective.

The House, however, is to be completely replenished every two years, and due to its representation by population, it might be drawn below a quorum by the actions of only a few large states on issues that might be relatively ephemeral (45). For that reason Hamilton considers the ability of the federal government to declare the place and time of elections for the House to be more necessary than for the Senate. There is, as well, the consideration that only the House will be subject to direct popular election at all, hence the lack of provision for the federal government to declare the location of senatorial elections. Because the activity is to be performed by the state legislatures or at least as directed by them, there is no potential danger in allowing those legislatures to dictate the location of those elections.

The provision is, in this sense, a guard against conspiracy, or at the least it is a guarantee that any such conspiracy necessarily be a large one. That, Hamilton closes, is also a guard against the influence of foreign nations seeking to intrigue with domestic malcontents to destabilize the new nation (46).

The essay breaks at this point. The ensuing two essays will expand on this topic.

Hamilton argues that the Union could be dissolved by the states refusing to hold elections for House members and refusing to appoint senators. At 37 he hints that if the federal government were sufficiently inept, this might not only be justifiable, but a good thing. This would be the people withdrawing the consent of the governed, what the Chinese call the “mandate of heaven”. However, the Executive, backed by a standing army, could simply dictate his own solution to the problem. Is Hamilton being realistic about this, and why or why not?

A BTT for the morning crowd. I find the byplay between Brutus and Hamilton to be particularly interesting given the relationship between the two men - they were rival Convention delegates from New York, recall, and when Yates (probably Brutus) and Lansing decided the Convention had gone beyond its mandate they took off, leaving Hamilton without the ability to vote for his state. Shortly afterward, George Clinton, the NY Governor whose "party" included Yates and Lansing, would reconsider his own opposition to the Constitution after a Bill of Rights was offered as an addendum.

Sometimes the reader has to dig the real issues out of the florid rhetoric, but in this one it was very easy to get a straight statement of principle from the two men, and to see precisely where and why the compromise was made. It's a fascinating look at both process and personality, IMHO.

The writing style caused me to put this Federalist into the “I write like” analyzer.

Result:

HP Lovecraft!

Wiki says, “Lovecraft’s guiding literary principle was what he termed “cosmicism” or “cosmic horror”, the idea that life is incomprehensible to human minds and that the universe is fundamentally alien. Those who genuinely reason, like his protagonists, gamble with sanity.”

Hamilton being realistic about this, and why or why not?

I think Hamilton overrates himself and his arguments are not very compelling. Talking about all these indirect means of curtailing power seems to me to be just simple arguing.

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