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majority of all the members elected to both houses must be present and vote to form a quorum, and that a majority of such a quorum shall elect, etc.1

Under the constitution Congress might occupy this whole ground as to the manner of holding elections for the members of the United States legislature. It is not unlikely that it will make advances upon this line in the near future.

The modification in reference to the final determination of the elections is found in Article I, section 5, paragraph 1, which provides that each house shall be the judge of the elections of its own members. This power is entirely unlimited in each house. Each house may reject anybody who claims to be elected and seat anybody who shall have been voted for.

3. The Principle of Representation in the Legislature.

It would perhaps be more correct to speak of the principles of representation, since the two houses of the legislature do not rest upon the same principle. In the lower house the principle is the census of the population.2 The original provision of the constitution excluded Indians not taxed from the enumeration; counted all unfree persons at three-fifths of the same number of free persons; and prohibited representation of a population numbering less than 30,000, except the whole population of a commonwealth should number less than 30,000, in which case it should have one representative.

This original principle has been modified by two subsequent constitutional provisions. The first is the thirteenth amendment, abolishing slavery, which has made the earlier rule in reference to the counting of unfree persons obsolete. There are now no unfree persons in the United States, and there can be none, as the constitution now stands. Each person now counts for one. The second modifying provision is that clause of the fourteenth amendment which declares that "representa

1 United States Revised Statutes, sec. 15.

2 United States Constitution, Art. I, sec. 2, § 3.

tives shall be apportioned among the several States" (commonwealths) "according to their respective numbers, counting the whole number of persons in each State" (commonwealth), "excluding Indians not taxed"; and that, when the right to vote at any election for presidential electors or representatives in Congress, or for the executive or judicial officers of a commonwealth or members of the legislature thereof, is denied to any of the male inhabitants of the commonwealth being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the representation of such commonwealth shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such commonwealth. The Con gress has not created the means and measures for carrying this threatened reduction of representation into execution, nor have the courts given judicial interpretation to the words of the clause. We therefore do not know whether in order to warrant the reduction of representation the denial or abridgment of the right to vote must be by a law of the commonwealth, or by an officer of the commonwealth, or whether the act of a combination of private persons, which the commonwealth either cannot or will not control, would come within the meaning of the provision. The language is that whenever the right to vote is denied, etc. It does not designate by whom. In the previous section of the article it is expressly provided that the denials, deprivations and abridgments there spoken of must be made by the commonwealth in order to warrant the interference of the government of the United States in behalf of the person receiving injury. What does the omission of this phrase in the second section indicate? Is it fortuitous, or was it intended to make the commonwealth responsible, in this case, for the unlawful acts of its citizens? Sound political science would approve the latter interpretation; but we must await the legislation of Congress and, after

that, the final adjudication of a case in point by the Supreme Court, before we can pronounce this to be the settled principle of our public law.

Under these constitutional directions and limitations, the Congress must fix by legislation the whole number of representatives of which the lower house sh" be composed, and distribute the same among the different commonwealths. This cannot be done once for all time. The representation must be readjusted, probably, after every census. The act now in force, viz; that of February 7, +891,1 fixes the whole number of members of the House of Representatives at 356, and distributes them among the commonwealths in the ratio of one to about 150,000 inhabitants. This gives the several commonwealths a representation varying from one to thirtyfour. This apportionment act requires, as the general rule, that the members from each commonwealth shall be "elected by districts composed of contiguous territory, containing as nearly as practicable an equal number of inhabitants, and equal in number to the number of representatives to which such State" (commonwealth) "may be entitled in Congress, no one district electing more than one representative." To the commonwealths is left, then, only the construction of such districts. The Congress must find the constitutional warrant for this measure either in the clause which provides that "representatives shall be apportioned among the several States" (commonwealths), etc., or in the clause which provides that Congress may prescribe regulations as to the times, places and manner of holding elections for representatives. It would be a little strained, I think, to profess to find the power in the first of these clauses. The language is that "representatives shall be apportioned among the several States" (commonwealths), etc. It does not even declare who shall apportion them. We derive the power of Congress to

1 United States Statutes at Large, vol. 26, p. 735 ff.

do this from implication. It does not seem to me, however, that this clause confers upon Congress any power, either express or implied, to direct the commonwealths how they shall distribute their quotas internally. It seems to me that the power of Congress is exhausted, so far as this clause is concerned, wher it distributes to the several commonwealths their respective numbers. The power must be found then, if at all, in the latter clause. I think it cannot be reasonably doubted that the power to determine the manner of holding the Congressional elections includes the power to prescribe the scrutin d'arrondissement or district ticket as against the scrutin de liste or general ticket, or vice versa; but does it include the power to require the commonwealths to construct the districts of contiguous territory and of as nearly equal population as is practicable? It is perhaps too late to raise any doubts upon this point. Congress has certainly gone no farther than a sound political science would justify, — indeed, not so far as a sound political science would justify. It is desirable, however, that the constitution should be more explicit upon this very important subject.

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The principle of representation in the upper house, the Senate, is commonwealth equality.1 The constitution secures this equality even against amendment in the ordinary manner.2 That is, the state, the sovereignty, as it was organized back of the constitution, undertakes to secure the principle of commonwealth equality in the Senate, against the state, the sovereignty, as organized within the constitution. This is confused and unnatural, It is not possible that this restriction could stand against a determined effort on the part of the state within the constitution to overthrow it. It is a relic of confederatism, and ought to be disregarded. It may be good political science now and in the future that the principle of commonwealth equality should prevail in the Senate, but

1 United States Constitution, Art. I, sec. 3, § 1.

2 Ibid. Art. V.

the state as organized in the constitution must be the final judge of this. No constitution is complete which undertakes to except anything from the power of the state as organized in the constitution. Such a constitution invites the reappearance of a sovereignty back of the constitution; ie. invites revolution.

The constitution provides that there shall be two senators from each commonwealth. This exact number is not defended against change by the ordinary process of amendment. It may be made more or less than two, but it must be the same number for each commonwealth.

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Lastly, the representation in both houses is uninstructed. The constitution expressly provides, as to the Senate, that each senator shall have one vote. This would be meaningless, if the senators were under the instruction of the commonwealth legislatures. We know, from experience, that a commonwealth is sometimes represented by senators, or a senator, of different politics from the majority in the existing legislature, and that no such legislature pretends to control the opinions and votes of such senators. A fortiori the members of the lower house are uninstructed. immediate constituencies have no means of instructing them if they would, and it cannot be pretended that the governments of the commonwealths from which they are chosen could instruct them. This, again, would allow the party in majority in the commonwealth legislature to instruct the members elected to Congress from the commonwealth, even when these members belonged to a hostile party; which would be absurd. The principle is that each senator and each representative represents the whole United States, according to his own intelligence and judgment, and that there is no constituency in the United States which can demand a control over its representative in either house of the Congress, or require his

1 United States Constitution, Art. I, sec. 3, § I.

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