Bench Memos

The Perennial Publius, part 59

Alexander Hamilton returns in Federalist No. 59 for the first of three essays on the Constitution’s lodging of power in the Congress to regulate the states’ administration of congressional elections.  The old Congress under the Articles of Confederation had practically been an assembly of ambassadors from each state, directly chosen by the state legislatures.  The new Senate (originally) is to be chosen in like fashion.  But the new House of Representatives is to be elected biennially by the people themselves, in the first ever national elections–and “a discretionary power over elections ought to exist somewhere.”  So, where?

Three options present themselves.  The first is to let the state legislatures, already experienced in the minutiae of arranging elections, handle this burden exclusively.  The second is to place the new Congress wholly in charge.  (Once its House members are elected by . . . what mechanisms in the first instance?  Hamilton neglects to ask this question, which would strengthen his argument.)  The third is the option the Constitution provides, of placing the states “primarily” in charge, and the Congress itself “ultimately.”  That is, the states legislate the details of election administration–its time, place, and manner–and Congress is authorized to legislate as it sees fit to regularize those elections, fix the calendar, and generally to guarantee that elections take place at all.  And that is the essential point for Hamilton: that the state legislatures could, if left to themselves, simply prevent elections within their own jurisdictions.  In familiar Hamiltonian fashion (see Nos. 23 and 31, for instance), he has thought about this from the ground up–from the most essential questions of power’s nature and extent:

If we are in a humour 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 intrust 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 wold naturally be placed, than where it would unnaturally be placed.

Is there, in such a minor detail, a deeper question of the preservation of the Union itself?  Yes, and we can trust Publius to have considered it.

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

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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