A Brief Enquiry into the Nature and Character of our Federal Government/VIII

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A Brief Enquiry into the Nature and Character of our Federal Government by Abel P. Upshur
Chapter VIII
Chapter breaks are not found in the original; they were added in an 1868 edition. References to "our author" or "the author" refer to Joseph Story, the author of the work being critiqued by Upshur.

[ *72 ] *Having disposed of this preliminary question, we now approach the Constitution itself. I affirm that it is, in its structure, a federative and not a consolidated government; that it is so, in all its departments, and in all its leading and distinguishing provisions; and, of course, that it is to be so interpreted, by the force of its own terms, apart from any influence to be derived from that rule of construction which has just been laid down. We will first examine it in the structure of its several departments.

The Legislature.—This consists of two houses. The senate is composed of two members from each State, chosen by its own legislature, whatever be its size or population, and is universally admitted to be strictly federative in its structure.[supp 1] The house of representatives consists of members chosen in each State, and is regulated in its numbers, according to a prescribed ratio of representation. The number to which each State is entitled is proportioned to its own population, and not to the population of the United States; and if there happen to be a surplus in any State less than the established ratio, that surplus is not added to the surplus or population of any other State, in order to make up the requisite number for a representative, but is wholly unrepresented. In the choice of representatives, each State votes by itself, and for its own representatives, and not in connection with any other State, nor for the representatives of any other State. Each State prescribes the qualifications of its own voters, the Constitution only providing that they shall have the qualifications which such State may have prescribed for the voters for the most numerous branch of its own legislature. And, as the right to vote is prescribed by the State, the duty of doing so cannot be enforced, except by the authority of the State. No one can be elected to represent any State, except a citizen thereof. Vacancies in the representation of any State, are to be supplied under writs of election, issued by the executive of such State. In all this, there is not one feature of nationality. The whole arrangement has reference to the States as such, and is carried into effect solely by their authority. The federal government has no agency in the choice of representatives, except only that it may prescribe the "times, places and manner, of holding elections." It can neither prescribe the qualifications of the electors, nor impose any penalty upon them, for refusing to elect. The States alone can do these things; and, of course, the very existence of the house of representatives depends, as much as does that of the senate, upon the action of the States. A State may withdraw its representation altogether, and congress has no power to prevent it, nor to supply the vacancy thus created. If the house of representatives were national, in any practical sense of the [ *73 ] *term, the "nation" would have authority to provide for the appointment of its members, to prescribe the qualifications of voters, and to enforce the performance of that duty. All these things the State legislatures can do, within their respective States, and it is obvious that they are strictly national. In order to make the house of representatives equally so, the people of the United States must be so consolidated that the federal government may distribute them, without regard to State boundaries, into numbers according to the prescribed ratio; so that all the people may be represented, and no unrepresented surplus be left in any State. If these things could be done under the Federal Constitution, there would then be a strict analogy between the popular branches of the federal and State legislatures, and the former might, with propriety, be considered "national." But it is difficult to imagine a national legislature which does not exist under the authority of the nation, and over the very appointment of which the nation, as such, can exert no effective control.

There are only two reasons which I have ever heard assigned for the opinion that the house of representatives is national, and not federative. The first is, that its measures are carried by the votes of a majority of the whole number, and not by those of a majority of the States. It would be easy to demonstrate that this fact does not warrant such a conclusion; but all reasoning is unnecessary, since the conclusion is disproved by the example of the other branch of the federal legislature. The senate, which is strictly federative, votes in the same way. The argument, therefore, proves nothing, because it proves too much.

The second argument is, that the States are not equally represented, but each one has a representation proportioned to its population. There is no reason, apparent to me, why a league may not be formed among independent sovereignties, giving to each an influence in the management of their common concerns, proportioned to its strength, its wealth, or the interest which it has at stake. This is but simple justice, and the rule ought to prevail in all cases, except where higher considerations disallow it. History abounds with examples of such confederations, one of which I will cite. The States General of the United Provinces were strictly a federal body. The council of state had almost exclusively the management and control of all their military and financial concerns; and in that body, Holland and some other provinces had three votes each, whilst some had two, and others only one vote each. Yet it never was supposed that for this reason the United Provinces were a consolidated nation. A single example [ *74 ] *of this sort affords a full illustration of the subject, and renders all farther argument superfluous.

It is not, however, from the apportionment of its powers, nor from the modes in which those powers are exercised, that we can determine the true character of a legislative body, in the particular now under consideration. The true rule of decision is found in the manner in which the body is constituted, and that, we have already seen, is, in the case before us, federative, and not national.

We may safely admit, however, that the house of representatives is not federative, and yet contend, with perfect security, that the legislative department is so. Congress consists of the house of representatives and senate. Neither is a complete legislature, in itself, and neither can pass any law without the concurrence of the other. And, as the senate is the peculiar representative of the States, no act of legislation whatever can be performed, without the consent of the States. They hold, therefore, a complete check and control over the powers of the people in this respect, even admitting that those powers are truly and strictly represented in the other branch. It is true that the check is mutual; but if the legislative department were national, there would be no federative feature in it. It cannnot be replied, with equal propriety, that, if it were federative, there would be no national feature in it. The question is, whether or not the States have preserved their distinct sovereign characters, in this feature of the Constitution. If they have done so, in any part of it, the whole must be considered federative; because national legislation implies a unity, which is absolutely inconsistent with all idea of a confederation; whereas, there is nothing to prevent the members of a confederation from exerting their several powers, in any form of joint action which may seem to them proper.

But there is one other provision of the Constitution which appears to me to be altogether decisive upon this point. Each State, whatever be its population, is entitled to at least one representative. It may so happen that the unrepresented surplus, in some one State, may be greater than the whole population of some other State; and yet such latter State would be entitled to a representative. Upon what principle is this? Surely, if the house of representatives were national, something like equality would be found in the constitution of it. Large surpluses would not be arbitrarily rejected in some places, and smaller numbers, not equal to the general ratio, be represented in others. There can be but one reason for this: As the Constitution was made by the States, the true principles of the confederation could [ *75 ] *not be preserved, without giving to each party to the compact a place and influence in each branch of the common legislature. This was due to their perfect equality as sovereign States.

The Executive.—In the election of the president and vice president, the exclusive agency of the States, as such, is preserved with equal distinctness. These officers are chosen by electors, who are themselves chosen by the people of each State, acting by and for itself, and in such mode as itself may prescribe. The number of electors to which each State is entitled is equal to the whole number of its representatives and senators. This provision is even more federative than that which apportions representation in the house of representatives; because it adds two to the electors of each State, and, so far, places them upon an equality, whatever be their comparative population. The people of each State vote within the State, and not elsewhere; and for their own electors, and for no others. Each State prescribes the qualifications of its own electors, and can alone compel them to vote. The electors, when chosen, give their votes within their respective States, and at such times and places as the States may respectively prescribe.

There is not the least trace of national agency, in any part of this proceeding. The federal government can exercise no rightful power in the choice of its own executive. "The people of the United States " are equally unseen in that important measure. Neither a majority, nor the whole of them together, can choose a president, except in their character of citizens of the several States. Nay, a president may be constitutionally elected, with a decided majority of the people against him. For example, New York has forty-two votes, Pennsylvania thirty, Virginia twenty-three, Ohio twenty-one, North Carolina fifteen, Kentucky fourteen, and South Carolina fifteen. These seven States can give a majority of all the votes, and each may elect its own electors by a majority of only one vote. If we add their minorities to the votes of the other States, (supposing those States to be unanimous against the candidate,) we may have a president constitutionally elected, with less than half—perhaps with little more than a fourth—of the people in his favor. It is true that he may also be constitutionally elected, with the majority of the States, as such against him, as the above example shows; because the States may, as before remarked, properly agree, by the provisions of their compact, that they shall possess influence, in this respect, proportioned to their population. But there is no mode, consistent with the true principles of free, representative government, by which a minority of those to whom [ *76 ] *en masse, the elective franchise is confided can countervail the concurrent and opposing action of the majority. If the president could be chosen by the people of "the United States" in the aggregate, instead of by the States, it is difficult to imagine a case in which a majority of those people, concurring in the same vote, could be overbalanced by a minority.

All doubt upon this point, however, is removed by another provision of the Constitution touching this subject. If no candidate should receive a majority of votes in the electoral colleges, the house of representatives elects the president, from the three candidates who have received the largest electoral vote. In doing this two-thirds of the States must be present by their representatives, or one of them, and then they vote by States, all the members from each State giving one vote, and a majority of all the States being necessary to a choice. This is precisely the rule which prevailed in the ordinary legislation of that body, under the articles of confederation, and which proved its federative character, as strongly as any other provision of those articles. Why, then, should this federative principle be preserved, in the election of the president by the house of representatives, if it was designed to abandon it, in the election of the same officer by the electoral colleges? No good reason for it has yet been assigned, so far as I am informed. On the contrary, there is every just reason to suppose, that those who considered the principle safe and necessary in one form of election, would adhere to it as equally safe and necessary in every other, with respect to the same public trust. And this is still farther proved by the provision of the Constitution relating to the election of the vice president. In case of the death or constitutional disability of the president, every executive trust devolves on him; and, of course, the same general principle should be applied, in the election of both of them. This is done in express terms, so far as the action of the electoral colleges is contemplated. But if those colleges should fail to elect a vice president, that trust devolves on the senate, who are to choose from the two highest candidates. Here the federative principle is distinctly seen; for the senate is the representative of the States.

This view of the subject is still farther confirmed by the clause of the Constitution relating to impeachments. The power to try the president is vested in the senate alone, that is, in the representatives of the States. There is a strict fitness and propriety in this; for those only, whose officer the president is, should be entrusted with the power to remove him.

[ *77 ] *It is believed to be neither a forced nor an unreasonable conclusion from all this, that the executive department is, in its structure, strictly federative.

The Judiciary.—The judges are nominated by the president, and approved by the senate. Thus the nominations are made by a federative officer, and the approval and confirmation of them depend on those who are the exclusive representatives of the States. This agency is manifestly federative, and "the people of the United States" cannot mingle in it, in any form whatever.

As the Constitution is federative in the structure of all three of its great departments, it is equally so in the power of amendment.

Congress may propose amendments, "whenever two-thirds of both houses shall deem it necessary." This secures the States against any action upon the subject, by the people at large. In like manner, congress may call a convention for proposing amendments, "on the application of the legislatures of two-thirds of the several States. It is remarkable that, whether congress or the States act upon the subject, the same proportion is required; not less than two-thirds of either being authorized to act. From this it is not unreasonable to conclude, that the convention considered that the same power would act in both cases; to wit, the power of the States, who might effect their object either by their separate action as States, or by the action of congress, their common federative agent; but, whether they adopted the one mode or the other, not less than two-thirds of them should be authorized to act efficiently.

The amendments thus proposed "shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by congress." It is the act of adoption or ratification alone which makes a constitution. In the case before us, the States alone can perform that act. The language of the Constitution admits of no doubt, and gives no pretext for double construction. It is not the people of the United States in the aggregate, merely acting in their several States, who can ratify amendments. Three-fourths of the several States can alone do this. The idea of separate and independent political corporations could not be more distinctly conveyed, by any form of words. If the people of the United States, as one people, but acting in their several States, could ratify amendments, then the very language of the Constitution requires that three-fourths of them shall [ *78 ] *concur therein. Is it not, then, truly wonderful that no mode has yet been prescribed to ascertain whether three-fourths of them do concur or not? By what power can the necessary arrangement upon this point be effected? In point of fact, amendments have already been made, in strict conformity with this provision of the Constitution. We ask our author, whether three-fourths of the people of the United States concurred in those amendments or not; and if they did, whence does he derive the proof of it?

If our author, and the politicians of his school, be correct in the idea, that the Constitution was formed by "the people of the United States," and not by the States, as such, this clause relating to amendments presents a singular anomaly in politics. Their idea is, that the State sovereignties were merged, to a certain extent, in that act, and that the government established was emphatically the government of the people of the United States. And yet, those same people can neither alter nor amend that government! In order to perform this essential function, it is necessary to call again into life and action those very State sovereignties which were supposed to be merged and dead, by the very act of creating the instrument which they are required to amend! To alter or amend a government requires the same extent of power which is require to form one; for every alteration or amendment is, as to so much, a new government. And, of all political acts, the formation of a constitution of government is that which admits and implies, the most distinctly and to the fullest extent, the existence of absolute, unqualified, unconditional and unlimited sovereignty. So long, therefore, as the power of amending the Constitution rests exclusively with the States, it is idle to contend that they are less sovereign now than they were before the adoption of that instrument.

The idea which I am endeavoring to enforce, of the federative character of the Constitution, is still farther confirmed by that clause of the article under consideration, which provides that no amendment shall be made to deprive any State of its equal suffrage in the senate, without its own consent. So strongly were the States attached to that perfect equality which their perfect sovereignty implied, and so jealous were they of every attack upon it, that they guarded it, by an express provision of the Constitution, against the possibility of overthrow. All other rights they confided to that power of amendment which they reposed in three-fourths of all the States; but this they refused to entrust, except to the separate, independent and sovereign [ *79 ] *will of each State; giving to each, in its own case, an absolute negative upon all the rest.[1]

The object of the preceding pages has been to show that the Constitution is federative, in the power which framed it; federative in the power which adopted and ratified it; federative in the power which sustains and keeps it alive; federative in the power by which alone it can be altered or amended; and federative in the structure of all its departments. In what respect, then, can it justly be called a consolidated or national government? Certainly, the mere fact that, in particular cases, it is authorized to act directly on the people, does not disprove its federative character, since that very sovereignty in the States, which a confederation implies, includes within it the right of the State to subject its own citizens to the action of the common authority of the confederated States, in any form which may seem proper to itself. Neither is our Constitution to be deemed the less federative, because it was the object of those who formed it to establish "a government," and one effective for all the legitimate purposes of government. Much emphasis has been laid upon this word, and it has even been thought, by one distinguished statesman of Judge Story's school, that ours is "a government proper," which I presume implies that it is a government in a peculiarly emphatic sense. I confess that I do not very clearly discern the difference between a government and a government proper. Nothing is a government which is not properly so; and whatever is properly a government, is a government proper. But whether ours is a "government proper," or only a simple government, does not prove that it is not a confederation, unless it be true that a confederation cannot be a government. For myself, I am unable to discover why States, absolutely sovereign, may not create for themselves, by compact, a common government, with powers as extensive and supreme as any sovereign people can confer on a government established by themselves. In what other particular ours is a consolidated or national government, I leave it to the advocates of that doctrine to show.

Notes in the original

  1. So absolutely is the federal government dependent on the States for its existence at all times, that it may be absolutely dissolved, without the least violence, by the simple refusal of a part of the States to act. If, for example, a few States, having a majority of electoral votes, should refuse to appoint electors of president and vice president, there would be no constitutional executive, and the whole machinery of the government would stop.

Supplemental notes

  1. This method of electing senators was replaced by popular vote in 1919 by the 17th amendment to the Constitution. (Wikisource contributor note)