Chapter: 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
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.
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

1. 1st clause, 4th section, of the 1st article.

 Hamilton defends the provision in the Constitution for national control over the scheduling and regulation of elections to the House. He argues that if state governments were given control over national elections, then the national government would find itself at the mercy of states. Hamilton does recognize that state governments do have the right to control the elections of senators and that this creates the opportunity for states to delay or prevent the election of senators. However, he argues that this was a necessary compromise so as to maintain the federal principle of shared power between the states and the national government. Hamilton sees no reason for extending this risk to include the House, especially since the House is elected every two years. If House elections were delayed, it would be truly detrimental. In contrast, senators are elected every six years and only one third of all Senate seats are up for election every two years. Thus, even if certain states tried to prevent an election from taking place, it would difficult for them to completely shut down the Senate.

