The true rule of decision is found in the manner in which the body is constituted,and that,we have already seen,is,in the case before us,federative,and not national.
We may safely admit,however,that the House of Representatives is not federative,and yet contend,with perfect security,that the legislative department is so.Congress consists of the House of Representatives and Senate.Neither is a complete legislature in itself,and neither can pass any law without the concurrence of the other.And,as the Senate is the peculiar representative of the States,no act of legislation whatever can be performed without the consent of the States.They hold,therefore,a complete check and control over the powers of the people in this respect,even admitting that those powers are truly and strictly represented in the other branch.It is true that the check is mutual;but if the legislative department were national,there would be no federative feature in it.It cannot be replied,with equal propriety,that,if it were federative,there would be no national feature in it.The question is,whether or not the States have preserved their distinct sovereign characters,in this feature of the Constitution.If they have done so in any part of it the whole must be considered federative;because national legislation implies a unity,which is absolutely inconsistent with all idea of a confederation;whereas,there is nothing to prevent the members of a confederation from exerting their several powers,in any form of joint action which may seem to them proper.
But there is one other provision of the Constitution which appears to me to be altogether decisive upon this point.Each State,whatever be its population,is entitled to at least one representative.It may so happen that the unrepresented surplus,in some one State,may be greater than the whole population of some other State and yet such latter State would be entitled to a representative.Upon what principle is this?Surely,if the House of Representatives were national,something like equality would be found in the constitution of it.Large surpluses would be arbitrarily rejected in some places,and smaller numbers,not equal to the general ratio,be represented in others.There can be but one reason for this:
As the Constitution was made by the States,the true principles of the confederation could not be preserved,without giving to each party to the compact a place and influence in each branch of the common legislature.
This was due to their perfect equality as sovereign States.
The Executive.?In the election of the President and Vice-President,the exclusive agency of the States,as such,is preserved with equal distinctness.
These officers are chosen by electors,who are themselves chosen by the people of each State,acting by and for itself,and in such mode as itself may prescribe.The number of electors to which each State is entitled is equal to the whole number of its representatives and senators.This provision is even more federative than that which apportions representation in the House of Representatives;because it adds two to the electors of each State,and,so far,places them on an equality,whatever be their comparative population.The people of each State vote within the State,and not elsewhere;
and for their own electors,and for no others.Each State proscribes the qualifications of its own electors,and can alone compel them to vote.
The electors,when chosen,give their votes within their respective States,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 as citizens of the several States.Nay,a President may be constitutionally elected,with a decided majority of the people against him.21For 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 a 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 government,by which a minority of those to whom,en masse,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.
