be chosen in districts; in other words to compel them to be chosen in a specific manner, excluding all others. Were not this plainly a violation of the constitution? Does it not affect to control the legislature in the exercise of its powers? * * * It assumes a control over the legislature, which the Constitution of the United States does not justify. It is bound to exercise its authority according to its own view of public policy and principle; and yet this proposition compels it to surrender all discretion, In my humble judgment * * * it is a direct and palpable infringement of the constitutional provisions to which I have referred.—[Electoral Commission, p. 186.
The conclusion seems irresistible that a State constitution cannot determine for the legislature who shall, or shall not, participate in the choice of presidential electors, and that in so far as our State constitution may attempt to do so, it is an infringement of the national constitution, The discretion of the legislature, by virtue of the supreme law of the land, being (except in so far as it is controlled by the national constitution itself) thus absolutely unlimited, it may, without doubt, as I think, authorize all citizens without regard to sex, to participate in the choice of presidential electors. But it has been suggested to me that possibly by the State legislature, as used in the section of the national constitution which we have been considering, was meant the whole people of the State in whom the legislative power originally resides and not the organized legislative body which they may create. We answer first that the language of the section will not admit of this construction. It clearly recognizes a distinction between the State or the people of the State, and its legislature. The language is not "each State shall appoint in such manner as it may direct," etc., but it is, "each State shall appoint in such manner as the legislature thereof may direct," etc,
Again, it is a familiar canon of construction that in determining the meaning of a statute, recourse may be had to the history of the times in which it was enacted. When the Constitution of the United States was framed, all of the States had organized legislatures, or representative bodies who wielded the legislative power, and without doing violence to language, we must suppose that it was to them the constitution referred. Again, the State legislatures are referred to not less than ten times in the national constitution, and in each instance the reference is such as to make it clear that the organized representative bodies are intended, and in article 5 they are, in express terms, distinguished from conventions of the States, Indeed, the fundamental idea of the American government is that of a representative republic as opposed to a pure democracy, and it may well be doubted whether a State government, without a representative legislative body of some kind, would, in the American sense, be republican in form.
Finally, it is apparent from the debates in the constitutional convention which framed the constitution, and from the whole plan devised for the election of president and vice-president, that it was not intended by the framers of the constitution to commit directly to the whole people of a State the authority to determine how the presidential electors should be chosen. Nothing seems to have given the convention more trouble than the mode of selecting a president. Many plans were proposed, Chief among these were: election by congress; election by the executives of the States; election by the people; election by the State legislatures; and election by electors. These were presented in many forms, The convention decided not less than three times, and once by a unanimous vote, in favor of election by the national congress, and as often reconsidered it (2 Madison Papers, pp. 770, 1,124, 1.190). The proposition that the president should be elected directly by the people, instead of by the national congress, received but one vote, while the proposition that he should be appointed by the State legislatures received two votes (2 Madison Papers, p. 1,124). The most cursory examination of the debates will, I think, convince any mind that it was to the organized legislature of the State, and not to the people of a State, that the framers of the constitution intended to commit the power of determining how the presidential electors should be chosen. It seems, both from the debates and the plan adopted, to have been their studied effort to prevent the people from acting in the choice of their chief magistrate otherwise than through their representatives, and in
