Having disposed of this preliminary question,we now approach the Constitution itself.I affirm that it is,in its structure,a federative and not a consolidated government;that it is so in all its departments,and in all its leading and distinguishing provisions and,of course,that it is to be so interpreted,by force of its own terms,apart from any influence to be derived from that role of construction which has just been laid down.We will first examine it in the structure of its several departments.20
The Legislature.?This consists of two houses.The Senate is composed of two members from each State,chosen by its own legislature,whatever be its size or population,and is universally admitted to be strictly federative in its structure.The House of Representatives consists of members chosen in each State,and is regulated in its numbers according to a prescribed ratio of representation.The number to which each State is entitled is proportioned to its own population,and not to the population of the United States;and if there happen to be a surplus in any State less than the established ratio,the surplus is not added to the surplus or population of any other State,in order to make up the requisite number for a representative,but is wholly unrepresented.In the choice of representatives,each State votes by itself,and for its own representatives,and not in connection with any other State,nor for the representatives of any other State.Each State prescribes the qualifications of its own voters,the Constitution only providing that they shall have the qualifications which such State may have proscribed for the voters for the most numerous branch of its own legislature.And,as the right to vote is prescribed by the State,the duty of doing so cannot be enforced,except by the authority of the State.No one can be elected to represent any State,except a citizen thereof.
Vacancies in the representation of any State are to be supplied under writs of election,issued by the Executive of such State.In all this,there is not one feature of nationality.The whole arrangement has reference to the States as such,and is carried into effect solely by their authority.
The Federal Government has no agency in the choice of representatives,except only that it may prescribe the "times,places and manner of holding elections."It can neither prescribe the qualifications of the electors,nor impose any penalty upon them,for refusing to elect.The States alone can do these things;and,of course,the very existence of the House of Representatives depends,as much as does that of the Senate,upon the action of the States.A State may withdraw its representation altogether,and Congress has no power to prevent it,nor to supply the vacancy thus created.
If the House of Representatives were national,in any practical sense of the term,the "nation"would have authority to provide for the appointment of its members,to prescribe the qualifications of voters,and to enforce the performance of that duty.All these things the State legislatures can do,within their respective States,and it is obvious that they are strictly national.In order to make the House of Representatives equally so,the people of the United States must be so consolidated that the Federal Government may distribute them,without regard to State boundaries,into numbers according to the prescribed ratio;so that all the people may be represented,and no unrepresented surplus be left in any State.If these things could be done under the Federal Constitution,there would then be a strict analogy between the popular branches of the federal and State legislatures,and the former might,with propriety,be considered "national."But it is difficult to imagine a national legislature which does not exist under the authority of the nation,and over the very appointment of which the nation,as such,can exert no effective control.
There are only two reasons which I have ever heard assigned for the opinion that the House of Representatives is national,and not federative.
The first is,that its measures are carried by the votes of a majority of the whole number,and not by those of a majority of the States.It would be easy to demonstrate that this fact does not warrant such a conclusion;
but all reasoning is unnecessary,since the conclusion is disproved,by the example of the other branch of the federal legislature.The Senate,which is strictly federative,votes in the same way.The argument,therefore,proves nothing,because it proves too much.
The second argument is,that the States are not equally represented,but each one has a representation proportioned to its population.There in no reason,apparent to me,why a league may not be formed among independent sovereignties,giving to each an influence in the management of their common concerns,proportioned to its strength,its wealth,or the interest which it has at stake.This is but simple justice,and the rule ought to prevail in all cases,except where higher considerations disallow it.History abounds with examples of such confederations,one of which I will cite.The States General of the United Provinces were strictly a federal body.The Council of State had almost exclusively the management and control of all their military and financial concerns;and in that body,Holland and some other provinces had three votes each,whilst some had two,and others only one vote each.Yet it never was supposed that for this reason the United Provinces were a consolidated nation.A single example of this sort affords a fall illustration of the subject,and renders,all farther argument superfluous.
It is not,however,from the apportionment of its powers,nor from the modes in which these powers are exercised,that we can determine the true character of a legislative body,in the particular now under consideration.
