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fail in others. How the ultimate balance of profit and loss would adjust itself is beyond the reach of prophecy, and quite unworthy of consideration. It is from the point of view of neither party that the suggestions of this article are offered.
If, as seems probable, the election of President is to continue to be made through previously instructed electors, and thus substantially by a direct popular vote, the true question to be considered, as between the two methods of choice under discussion, is which of them most fairly gives expression to the will of the people. That under a republican form of government the majority must control, is universally conceded. But what does the term majority really mean? Is it the aggregate majority of the entire people of the United States, or is it the majority in such political sub-divisions of the country as it is found expedient to create? And if the latter, what shall those subdivisions be? The most strenuous advocate of the majority rule would not agree to an amendment of the Constitution which should provide that the election of President should be determined by the aggregate vote in all the States of the Union, so that the candidate should be elected who upon a count of the whole received the greatest number of votes. Many Presidents have been elected who upon such a computation would have been defeated. They have been chosen by a minority of the vote cast, over competitors who have received a majority. A dozen votes in the right place may thus overrule many thousands in other places; and a President may be elected against the expressed will of the larger proportion of the people over whom he is called to preside. Such a result
is entirely in accordance with the provisions of the Constitution. The same thing constantly takes place in the election of the State legislatures; the vote being by districts, a political majority of one or both houses is frequently chosen, when the aggregate vote of the State is stronger the other way; while if the legislative body had been elected upon general ticket, it would have been unanimously the opposite, politically, to what it is. By legislatures thus chosen, Senators of the United States are often elected from a party which in the whole State is in a minority. Yet both legislatures and Senators act for the entire State, whose majority is thus overruled. So in the election of members of Congress; in most of the States large enough to have more than one district, the members are divided between the political organizations, though if elected by general ticket they would all belong to the same. It has never been claimed that in any of these cases the will of the majority is in any proper sense defeated, or that a minority has been permitted to determine the elections. These illustrations show that under our Constitution, as in all systems of free government, the term majority has a relative or qualified meaning, and refers, not to an absolute preponderance of the entire popular vote, but to a majority in the municipal sub-divisions, great or small, within and for which the election takes place. That is to say, that the people govern by representation, and not in mass; indirectly, not directly.
It is not true, under the spirit or by the letter of the American Constitution, that minorities have no rights which majorities are bound to respect. If that were so, one section of the country might speedily take possession of the entire government, under which the remainder would be virtually only provinces. While the general theory of majority rule is the fundamental idea, it is the safety and the excellence of our system that this shall not be carried too far, and that the voice and interests of all sections, sub-divisions and localities shall have their fair share of influence, and shall not be overridden and extinguished by the preponderating majorities of the country at large. How to give due effect to the voice of minorities without making them paramount has always been the problem of constitutional government. Says Judge Cooley : “American government is frequently spoken of as a government based on faith in majorities, and the machinery of election as being provided merely to ascertain what the will of the majority is. But the government is never handed over to the absolute control of the majority, and many precautions are taken to prevent its expressing exclusively their will."
Since then it is apparent that in a Presidential election, as in many others, the general majority does not and ought not to control, but only the majorities ascertained in the various sub-divisions of the country created for that purpose, the question remains, What is the just limit of those sub-divisions? In other words, since the election takes place through representatives, whom does the elector properly represent—the people of the district within and for which he is chosen, or the people of his entire State? The Constitution answers this question. Each State “shall appoint in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” An exact analogy between Congress and the electoral bodies is thus expressly established. Two kinds of electors are virtually provided for: electors at large, and electors for the districts. And this distinction has always been practically observed in their nomination and title. The electors at large, two of whom are chosen for each State, whatever its population may be, correspond to its Senators, and represent the State. They should unquestionably be chosen by the vote of the State, and should be in accord with its majority. The district electors, on the other hand, correspond to the members of the House of Representatives, and represent the people of their respective districts. They no more represent the aggregate majority of their State, than members of Congress do. The States, as such, have their full voice through the electors at large. Out of four hundred and thirteen electoral votes, they thus cast eighty - eight. To the districts properly belong the district electors, and they should be chosen accordingly.
It is true that the Constitution, as has been pointed out, does not expressly provide that the election of district electors shall be by the vote of districts, nor that the elector must be a resident of the district for which he is chosen. But neither does it contain any provision that members of Congress shall be chosen by or for districts which they sit for, or shall be residents of their districts. The clause in the Constitution by which the House of Representatives is established is this: "The House of Representatives shall be composed of members chosen every second year by the people of the several States. It provides further that the Representatives shall be apportioned among the States according to population, and that until the first enumeration is made by Congress, “the State of New Hampshire shall be entitled to choose three, the State of Massachusetts eight,” etc. Section 4 of the same article enacts that “the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." There is not to be found in the Constitution any reference whatever to congressional districts, their creation, or their vote. The whole subject of the manner of electing Representatives is left to the States, as in the case of the presidential electors, subject only, in respect to the former, but not the latter, to the power of Congress to interfere. It is therefore unquestionable, that if the people of any State should determine through its legislature that the election of Representatives in Congress should be by general ticket, that method would be permitted by the Constitution, if no act of Congress existed to the contrary. Such, indeed, was the early practice in many
States. Members of Congress were elected by general ticket, were sometimes elected by the legislatures, and some times from districts that chose two or more members. The change to the system of election by districts has among some of the older States been gradual, but is now everywhere complete, not a Representative being chosen in any other way. In 1878, this mode of choice was established by Congress. And no man would at this day venture to propose such an exercise of the