In yet another Federalist Paper that seems to have been written to answer the questions we see in the headlines today, Hamilton reemerges in Federalist 59 to discuss how voting procedures are reserved to the states. He quotes the proposed constitution that “The TIMES, PLACES, and MANNER of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof” 1 (The emphasis is in Hamilton’s writing not in the Constitution itself). Congress may alter voting rules except “as to the PLACES of choosing senators.”
This limitation was created to prevent congress from denying a particular state the authority to seat its Senators. You will recall that, unlike the House of Representatives, the Senate is not chosen by popular vote, but rather by the legislatures of the individual states. Both Article I Section 4 of the Constitution, and Hamilton’s clarification in Federalist 59, mean that the “PLACES” he is referring to is clearly not a discussion around individual polling locations. It includes the individual states themselves as well as the legislatures therein. As Hamilton says, the Federal government must “CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION” and, at the time he was writing, there was the very real possibility of an “extraordinary circumstance(s)” that might cause the federal government to intervene, but never as to the place for choosing senators, be that the individual state or the legislators of those states. Previous papers by Madison have very eloquently argued for keeping separate the popularly elected House, and the state selected Senate. This is why the 17th Amendment to the Constitution was such a grave error both from a structural, and a legal standpoint.
While that ship has already sailed so to speak, it is worth considering what other types of “PRESERVATION” Hamilton might have been referring to in that sentence. Fortunately, we have his own language to guide us. The concern was that the states might attempt to destroy the federal government “by neglecting to provide for the choice of persons to administer its affairs”. Basically, should the states decide not to conduct federal elections, the federal government would be unable to operate and therefore have the right to step in. But the possibility that someone would actually propose “empowering the United States to regulate the elections for the particular States”, is such an absurd hypothetical that Hamilton dismisses out of hand, “would any man have hesitated to condemn it”? Of course not. The power to regulate elections, as long as they are held, must be kept at the state level to avoid an “unwarrantable transposition of power”. Federal intrusion, beyond a state actually “declining the appointment of Senators” is an abuse of federal power over the states. And yet here we are.
As if to reinforce the point that the 17 Amendment was an egregious error, Hamilton points out that the only way to prevent the possibility of the states, through their individual legislatures, from failing to select Senators would have to be action “excluding the States, in their political capacities, wholly from a place in the organization of the national government.” That is precisely what the 17th Amendment did. It excluded the States from having a role in the national government by transferring that authority directly to the people which was a violation of the intent of our founders and a repudiation of the very clear warnings of both Plato and Aristotle about the dangers of direct democracy.
In case there is any doubt that the founders had only the failure of states to seat Senators as a reason to have a role in state voting rules, Hamilton goes on to discuss quorum rules, and the fact that Senate terms, combined with the staggering of Senate elections, makes even his hypothetical about Federal election involvement a long shot. Should states decide to “annul the existence nor impair the activity of the body” (the Senate) it would take a coalition of states to do so and that would be a difficult thing for the individual states to accomplish. That states might have different issues than that of their populations is not an insignificant distinction. As Hamilton points out “diversity of sentiment between a majority of the people, and the individuals who have the greatest credit in their councils” is a real thing. And if Federalism is to mean anything, the rights of states to be represented by choosing their representatives in the Senate, is critical.
Indeed.
Next: Federalist 60 Analysis
To read all of John Parillo’s work on the Federalist Papers, click here.
Footnotes
- Original quotes found here: https://federalist-papers.com/federalist-59/. ↩︎
Citation
This piece was originally published at American Free News Network and re-published with their permission.
