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 College,the House of Representatives elects the President,from the three candidates which have received the largest electoral vote.In doing this,two-thirds of the States must be present by their representatives,or one of them,and then they vote by States,all the members of 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 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 some 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 unreasonable 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 federate 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 two-thirds 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 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 Judge Story,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.
