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It is not the purpose of this article either to vindicate the judgment of the majority, or to condemn the opinion of the minority, of the Commission. It has been endeavored to state the exact condition, in its leading features, of the late contest, with a view to bring to the thoughtful attention of the citizens of the United States the present state of our Constitution and laws upon the exciting subject of the election of Chief Magistrate. A great danger and the law that averted it have both passed away; but there remains the imperative duty of providing in advance, so far as clear provisions of the Constitution or a statute can do, for the disposition of similar dangers and disputes in the future. Under whatever system of election of the Executive which may exist, there must be lodged somewhere the power to determine either ministerially, or politically and primâ facie, or judicially and finally, or both, what person has been duly chosen. One system of election may present less difficulties in this respect, and may, in itself, be more just and wise, than another. What is that system? The question is important, but not novel. Wherever civilization and human rights have emancipated themselves from kingcraft, the subject has been considered. Greeks, Romans, Poles, Swiss, and Dutch had already debated and experimented with it when the federal convention that framed our own system came to deal with it. In that convention the matter received the most patient and prolonged attention; and nearly every plausible mode, and some others, were suggested. One was an election by the people by Districts, - being substantially the same mode proposed by the Committee of Privileges and Elections of the Senate, June 1, 1874. This was rejected by a vote of eight States to two, and again by nine to one. Another was an election by the Congress, which was at first agreed to; but, after long consideration, the existing mode was substituted for it by a vote of six States to three, on the provision for Electors, and eight to two, on giving the control of the choice to the legislatures of the States.3
It may at present be taken for granted that a single Chief Magistrate is in some way to be chosen for a limited term, to exercise substantially the powers with which he is now invested. Every man desires property, which, in a general sense, is nothing but accumulated labor; and so long as free industry and intelligence, the fountains of property, continue to preponderate in the country, neither the government of the Commune nor that of a pure Democracy will be brought into practice. This belief is not founded on any distrust of the people, but on a firm faith in their fidelity to the first principles on which good government is founded ; namely, equality of rights, and the protection of life, liberty, and property. All human experience has shown that these blessings are not more safe under such governments than under that of an Absolute Monarch.
1 Elliot's Debates, vol. v. p. 148.
2 Ib. p. 324. 3 Ib. p. 338. The 12th Article of the Amendments did not change the Constitution in the respect referred to.
How, then, most safely for these great objects of our own government shall the Executive be chosen ? Only two methods, probably, need be discussed: all others may be set aside as plainly not the best. These two are the plan reported by the Senate Committee before referred to, and the existing system. It may be taken as a political axiom, that no form of republican government that has, like ours (with one sad and anomalous exception, not pertinent to the present question), given a people a century of internal peace, happiness, and prosperity, ought to be changed without the clearest and most urgent reasons. Changes for the sake of experiment, or of following a supposed better theory, particularly in a government so delicately and happily balanced as ours, would be not only unwise, but criminal. One of the greatest and most patriotic of Americans, in writing of the experience of mankind on this subject, said : “ If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.”1
The leading and important distinction between the plan proposed and the present system is, that the first puts the election into the hands of a plurality of the people voting by districts equal in number to the Representatives in Congress (the two additional votes in each State for its Senatorial representation need not be particularly referred to), while the existing Constitution places it actually and formally in the power of the
11 Madison, Federalist, No. 37.
respective States as political communities, each having a number of yotes according to its representation in Congress, a majority of all the Electors appointed being necessary to a choice. All other differences are of incident and detail. This is a change in the structure of the government of great gravity, either for good or ill, and it compels us to look clearly at the present nature and balances of our government, and to what they would be, were the new plan adopted. While it is conceded that in respect of every power granted by the Constitution to the general government, and each of its departments, they are supreme and national, it is evidently true, that in respect of the choice of the citizen who is to wield the vast powers of the Executive Office, the structure of the government is federal, each State in its integral character exercising its own judgment in the selection, and having a weight practically in proportion to its numbers, and in the rare instance of a failure of choice by the Electors, having an absolutely equal voice in the selection. Under the proposed plan the choice of the Executive would be purely national, – as much so, excepting the small fraction of Electoral votes at large in analogy to the present system of two Electors for each State absolutely, as if the States were entirely obliterated. Geographical separations of territory might be made in the same way if there were no States. What are the mischiefs
1 The proposed Amendment to the Constitution is the following, as reported by the Senate Committee. Rep. 395, Forty-third Congress, 1st Session.
“ARTICLE –. "1. The President and Vice-President shall be elected by the direct vote of the people in the manner following: Each State shall be divided into districts, equal in number to the number of Representatives to which the State may be entitled in the Congress, to be composed of contiguous territory, and to be as nearly equal in population as may be; and the person having the highest number of votes in each district for President shall receive the vote of that district, which shall count one Presidential vote.
“II. The person having the highest number of votes for President in a State shall receive two Presidential votes from the State at large.
“ III. The person having the highest number of Presidential votes in the United States shall be President.
"IV. If two persons have the same number of votes in any State, it being the highest number, they shall receive each one Presidential vote from the State at large ; and if more than two persons shall have each the same number of votes in any State, it being the highest number, no Presidential vote shall be counted from the State at large. If more persons than one shall have the same number of votes, it being the highest number in any district, no Presidential vote shall be counted from that district.
that have arisen, or that are likely to arise under the present system ? Every thing that can have a semblance of error has been pointed out in the report of the Senate Committee. The first is that the present practice departs from the original theory, which is said to have been, that the Electors were to be free to vote uninfluenced by popular passion, tumult, &c., while they are now in fact absolutely pledged in advance to particular candidates, the choice of particular parties of the people. If this be so, the people do now, indirectly and by States, choose the President, and the desire of the Committee for a more perfectly democratic election is, to a great degree, satisfied without the adoption of new methods. But is the theory of the Constitution correctly stated in this respect ? Was it not, rather, that the Electors should have the same freedom and independence that belong to members of State legislatures who may be elected in view of a Senatorial election, and whose characters, and opinions on the subject are known to their constituents in advance; but who, nevertheless, have the legal and moral liberty of adapting their action to events unforeseen at the time of their election, such as the death or insanity of the candidate, &c. No instance is known in which an Elector has betrayed the moral trust thus reposed in him. Under the present system, therefore, we get the will of a majority of the people of each State.
The next objection of the Committee against the present Constitution is that the system is dangerous, because “ contingencies may arise which cannot be foreseen, which may lead to civil war and disaster.” It is not possible to weigh, and provide against, dangers that cannot be defined; but the difficulties in ascertaining the result of an election under either system will be considered separately. All the residue of “ danger," &c., referred to, is found in the chief and controlling point of the Committee, that under the present Constitution the election is “ by the States and not by the people,” and that a minority candidate may thus be elected. If the latter fact be a defect in the present system (which it cannot be if the fundamental principle of it is
“y. The foregoing provisions shall apply to the election of Vice-President.
“ VI. The Congress shall have power to provide for holding and conducting the elections of President and Vice-President, and to establish tribunals for the decision of such elections as may be contested.
“VII. The States shall be divided into districts by the legislatures thereof, but the Congress may at any time by law make or alter the same.”
correct), the new plan is no better, but, rather worse ; for the same thing might happen in an election by districts, even if an absolute majority were required in each one of them, as it is not. Vermont, with three districts, might give twenty-five thousand popular majority for one candidate, while New York with thirtythree districts might give only ten thousand popular majority for the opposing candidate; and so of all the other States. But the new plan proposes a plurality vote (in that scheme no other is practicable), and in that case the election of a minority candidate is not merely a casual incident, as under the present system, but is a rule applied with a double force : for it is provided, first, that a plurality in each district shall fix the vote of the district; and, second, that a plurality of the votes of districts shall elect the President.
The real and only question of great intrinsic importance is between the fundamental nature of the Constitution as it is, under which the choice of President is made by the States as such, with weight according to their numbers, and that of the plan of the Committee, under which the choice is to be made by the whole people of the Union as a body, divided into districts for convenience only. Under the one the national Executive is chosen according to the voice of the several States as independent political communities, equal in right, and having a number of votes according to their population. This is the same equality that the States have in the enactment of laws; save that in the latter instance the Senate and House act separately, and are thus a check upon each other. Under the plan of the Committee the election is the act of the people in their individual character as citizens of the United States, with substantially the same force as if no State lines existed. If the districts were formed without regard to State lines, the plan would be essentially the same.
With the late amendments to the Constitution securing liberty, the inherent rights of citizenship, and impartial suffrage, as of national right, has not the Constitution gone just far enough in the direction of consolidation and centralization ? It has already, by the greatest and most terrible tests known to mankind, shown itself equal to preventing dismemberment, or resistance by States to the national authority ; but it has not yet been proved that it will be equal to the preservation of the State