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and at such times and places as the States may respectively prescribe.
There is not the least trace of national agency, in any part of this proceeding. The federal government can exercise no rightful power in the choice of its own executive. “The people of the United States” are equally unseen in that important measure. Neither a majority, nor the whole of them together, can choose a president, except in their character of citizens of the several States. Nay, a president may be constitutionally elected, with a decided majority of the people against him. For example, New York has forty-two votes, Pennsylvania thirty, Virginia twenty-three, Ohio twenty-one, North Carolina fifteen, Kentucky fourteen, and South Carolina fifteen. These seven States can give a majority of all the votes, and each may elect its own electors by a majority of only one vote. If we add their minorities to the votes of the other States, (supposing those States to be unanimous against the candidate,) we may have a president constitutionally elected, with less than half-perhaps with little more than a fourth-of the people in his favor. It is true that he may also be constitutionally elected, with the majority of the States, as such against him, as the above example shows; because the States may, as before remarked, properly agree, by the provisions of their compact, that they shall possess influence, in this respect, proportioned to their population. But there is no mode, consistent with the true principles of free, representative govern
ment, by which a minority of those to whom *en masse, [*76]
the elective franchise is confided can countervail the concurrent and opposing action of the majority. If the president could be chosen by the people of “the United States" in the aggregate, instead of by the States, it is difficult to imagine a case in which a majority of those people, concurring in the same vote, could be overbalanced by a minority.
All doubt upon this point, however, is removed by another provision of the Constitution touching this subject. If no candidate should receive a majority of votes in the electoral colleges, the house of representatives elects the president, from the three candidates who have received the largest electoral vote. In doing this two-thirds of the States must be preser:
by their representatives, or one of them, and then they vote by States, all the members from each State giving one vote, and a majority of all the States being necessary to a choice. This is precisely the rule which prevailed in the ordinary legislation of that body, under the articles of confederation, and which proved its federative character, as strongly as any other provision of those articles. Why, then, should this federative principle be preserved, in the election of the president by the house of representatives, if it was designed to abandon it, in the election of the same officer by the electoral colleges ? No good reason for it has yet been assigned, so far as I am informed. On the contrary, there is every just reason to suppose, that those who considered the principle safe and necessary in one form of election, would adhere to it as equally safe and necessary in every other, with respect to the same public trust. And this is still farther proved by the provision of the Constitution relating to the election of the vice president. In case of the death or constitutional disability of the president, every executive trust devolves on him; and, of course, the same general principle should be applied, in the election of both of them. This is done in express terms, so far as the action of the electoral colleges is contemplated. But if those colleges should fail to elect a vice president, that trust devolves on the senate, who are to choose from the two highest candidates. Here the federative principle is distinctly seen; for the senate is the representative of the States.
This view of the subject is still farther confirmed by the clause of the Constitution relating to impeachments. The power to try the president is vested in the senate alone, that is, in the representatives of the States. There is a strict fitness and propriety in this ; for those only, whose officer the president is, should be entrusted with the power to remove him. *It is believed to be neither a forced nor an unreason
[*77] able conclusion from all this, that the executive department is, in its structure, strictly federative.
The Judiciary.—The judges are nominated by the president, and approved by the senate. Thus the nominations are made by a federative officer, and the approval and confirmation of them depend on those who are the exclusive representatives of
the States. This agency is manifestly federative, and “the people of the United States” cannot mingle in it, in any form whatever.
As the Constitution is federative in the structure of all three of its great departments, it is equally so in the power of amendment.
Congress may propose amendments, “whenever two-thirds of both houses shall deem it necessary.” This secures the States against any action upon the subject, by the people at large. In like manner, congress may call a convention for proposing amendments, “on the application of the legislatures of twothirds of the several States. It is remarkable that, whether congress or the States act upon the subject, the same proportion is required; not less than two-thirds of either being authorized to act. From this it is not unreasonable to conclude, that the convention considered that the same power would act in both cases; to wit, the power of the States, who might effect their object either by their separate action as States, or by the action of congress, their common federative agent; but, whether they adopted the one mode or the other, not less than two-thirds of them should be authorized to act efficiently.
The amendments thus proposed “shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by congress.” It is the act of adoption or ratification alone which makes a constitution. In the case before us, the States alone can perform that act. The language of the Constitution admits of no doubt, and gives no pretext for double construction. It is not the people of the United States in the aggregate, merely acting in their several States, who can ratify amendments. Three-fourths of the several States can alone do this. The idea of separate and independent political corporations could not be more distinctly conveyed, by any form of words. If the people of the United States, as one people, but acting in their several States, could ratify amendments, then the very language of the Constitution [ *78]
requires that three-fourths of them shall *concur therein. Is it not, then, truly wonderful that no mode has yet
been prescribed to ascertain whether three-fourths of them do concur or not? By what power can the necessary arrangement upon this point be effected? In point of fact, amendments have already been made, in strict conformity with this provision of the Constitution. We ask our author, whether three-fourths of the people of the United States concurred in those amendments or not; and if they did, whence does he derive the proof of it?
If our author, and the politicians of his school, be correct in the idea, that the Constitution was formed by the people of the United States,” and not by the States, as such, this clause relating to amendments presents a singular anomaly in politics. Their idea is, that the State sovereignties were merged, to a certain extent, in that act, and that the government established was emphatically the government of the people of the United States. And yet, those same people can neither alter nor amend that government! In order to perform this essential function, it is necessary to call again into life and action those very State sovereignties which were supposed to be merged and dead, by the very act of creating the instrument which they are required to amend! To alter or amend a government requires the same extent of power which is required to form one; for every alteration or amendment is, as to so much, a new government. And, of all political acts, the formation of a constitution of government is that which admits and implies, the most distinctly and to the fullest extent, the existence of absolute, unqualified, unconditional and unlimited sovereignty. So long, therefore, as the power of amending the Constitution rests exclusively with the States, it is idle to contend that they are less sovereign now than they were before the adoption of that instrument.
The idea which I am endeavoring to enforce, of the federative character of the Constitution, is still farther confirmed by: that clause of the article under consideration, which provides that no amendment shall be made to deprive any State of its equal suffrage in the senate, without its own consent. So strongly were the States attached to that perfect equality which their perfect sovereignty implied, and so jealous were they of every attack upon it, that they guarded it, by an express pro
vision of the Constitution, against the possibility of overthrow. All other rights they confided to that power of amendment which they reposed in three-fourths of all the States; but this they refused to entrust, except to the separate, independent [*79]
and sovereign *will of each State; giving to each, in its
own case, an absolute negative upon all the rest.* The object of the preceding pages has been to show that the Constitution is federative, in the power which. framed it; federative in the power which adopted and ratified it; federative in the power which sustains and keeps it alive ; federative in the power by which alone it can be altered or amended; and federative in the structure of all its departments. In what respect, then, can it justly be called a consolidated or national government ? Certainly, the mere fact that, in particular cases, it is authorized to act directly on the people, does not disprove its federative character, since that very sovereignty in the States, which a confederation implies, includes within it the right of the State to subject its own citizens to the action of the common authority of the confederated States, in any form which may seem proper to itself. Neither is our Constitution to be deemed the less federative, because it was the object of those who formed it to establish “a government," and one effective for all the legitimate purposes of government. Much emphasis has been laid upon this word, and it has even been thought, by one distinguished statesman of Judge Story's school, that ours is “ a government proper,” which I presume implies that it is a government in a peculiarly emphatic sense. I confess that I do not very clearly discern the difference between a government and a government proper. Nothing is a government which is not properly so; and whatever is properly a government, is a government proper. But whether ours is a “government proper,” or only a simple government, does not prove that it is not a confederation, unless it be true that a confederation cannot be a government. For myself, I am unable to discover why
* So absolutely is the federal government dependent on the States for its existence at all times, that it may be absolutely dissolved, without the least violence, by the simple refusal of a part of the States to act. If, for example, a few States, having a majority of electoral votes, should refuse to appoint electors of president and vice president, there would be no constitutional executive, and the whole machinery of the government would stop.