Bench Memos

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The Perennial Publius, part 52


Moving from “more general enquiries” to “more particular examinations” in Federalist No. 52, Publius begins an analysis of the four great institutions of the American Constitution–the two houses of Congress, the presidency, and the judiciary–that will take the Federalist all the way to No. 83, with just two essays remaining after that to tie up loose ends.  Appropriately following the order in which the national government’s institutions are mentioned in the Constitution itself, Madison launches a ten-essay series on the House of Representatives and congressional elections.

The House was, under the original Constitution, the only institution directly elected by the unmediated will of the people (until the Seventeeth Amendment changed the election of senators in 1913), and Madison is sensitive to the fact that the House therefore carries the banner of democracy for the whole Constitution.  If the republican bona fides of the House cannot be proven, then the entire proposed Constitution is suspect, and runs the risk of rejection by the people of the United States.

Who are these representatives to be?  Who is entitled to elect them?  Will our opportunities to register the popular will be frequent enough?  These are the sorts of questions with which Madison begins.

The voters in congressional elections, he points out, will be the same as “the electors of the most numerous branch of the state legislatures.”  We are often told that in the framers’ day women could not vote, and there were property qualifications for men.  True enough, but this was not the doing of the framers’ Constitution, which wisely left voting rights to be a function of what states did in electing their own assemblies.  Thus any restrictions or qualifications were a matter of state law, and as they were changed or eliminated at that level, identical effects would obtain in congressional elections.  Since elections were to be primarily administered by the states–which is true to this day–such a system also simplifies the administration considerably, especially if state and federal elections are simultaneous events.

As for the qualifications to serve in the House, these are so minimal that Madison can proudly say “the door of this part of the federal government, is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.”  (Even, um, swearing an unofficial post-inaugural oath on the Koran.)

The two-year term of office is a more serious matter.  Is it too short?  Too long?  Is it both “safe” and “necessary or useful”?  This is a matter that “does not appear to be susceptible of any precise calculation,” but Madison begins his discussion of it (which will continue in the next essay) by noting that the highest frequency of Commons elections in Britain was three years, and that the American colonial assemblies had terms that “varied from one to seven years.”  It seems unlikely that biennial House elections will be “dangerous to the requisite dependence of the house of representatives on their constituents.”

(For explanation of this recurring feature, see here.)


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