Under this power [the power given by the section of the national constitution, which we are now considering] the legislature might direct that the electors should be appointed by the legislature, by the executive, by the judiciary, or by the people. In the earliest days of the republic, electors were appointed by the legislatures. In Pennsylvania they were appointed by the judiciary. Now, in all the States except Colorado, they are appointed by the people.—[Electoral Commission, p. 204.
If then it be true that the power to determine how the presidential electors shall be appointed is derived from the national constitution, and that power is a discretionary one, to be exercised in such manner as the legislature may direct, how can it be said that a State constitution can limit or control the legislative discretion? If the State can limit that discretion in one respect it can limit it in another, and in another, and in another, until it may shut up the legislature to but a single mode of appointment, which is to take away, and absolutely destroy all its discretion, and this is nullification, pure and simple. One of the questions before the electoral commission in the case of South Carolina, was whether the electoral vote of that State should not be rejected because the legislature, in providing for the appointment of the electors, had failed to obey a requirement of the State constitution in regard to a registry law. This raised, in principle, the very question we are now considering, and on that question Senator O. P. Morton, who was a member of the commission, and who was an able lawyer as well as a great statesman, thus expressed himself:
They [the presidential electors] are to be appointed in the manner prescribed by the legislature of the State, and not by the constitution of the State. The manner of the appointment of electors has been placed by the Constitution of the United States in the legislature of each State, and cannot be taken from that body by the provisions of a State constitution. * * * The power to appoint electors by a State, is conferred by the Constitution of the United States, and does not spring from a State constitution, and cannot be impaired or controlled by a State constitution.—[Electoral Commission, p. 200.
The distinguished lawyer and statesman [Hon. William Lawrence] who made the principle argument before the commission in favor of admitting the vote of the State, took the same ground (Electoral Commission, p. 186).
The opinion of Justice Story, expressed in the Massachusetts constitutional convention of 1820, on a very similar question, and one involving the same principle, quoted by Mr. Lawrence in his argument, is very high authority, and I reproduce it here. He (Justice Story) said:
The question then was whether we have a right to insert in our constitution a provision which controls or destroys a discretion which may be, nay must be, exercised by the legislature in virtue of powers confided to it by the Constitution of the United States. The fourth section of the first article of the Constitution of the United States declares that the times, places and manner of holding elections for senators and representatives shall be prescribed by the legislature thereof. Here an express provision was made for the manner of choosing representatives by the State legislatures. They have an unlimited discretion on the subject. They may provide for an election in districts sending more than one, or by general ticket for the whole State. Here is a general discretion, a power of choice. What is the proposition on the table? It is to limit the discretion, to leave no choice to the legislature, to compel representatives to be chosen in districts; in other words to compel them to be chosen in a specific manner, excluding all others. Were not this plainly a violation of the constitution? Does it not affect to control the legislature in the exercise of its powers? * * * It assumes a control over the legislature, which the Constitution of the United States does not justify. It is bound to exercise its authority according to its own view of public policy and principle; and yet this proposition compels it to surrender all discretion. In my humble judgment * * * it is a direct and palpable infringement of the constitutional provisions to which I have referred.—[Electoral Commission, p. 186.
The conclusion seems irresistible that a State constitution cannot determine for the legislature who shall, or shall not, participate in the choice of presidential electors, and that in so far as our State constitution may attempt to do so, it is an infringement of the national constitution. The discretion of the legislature, by virtue of the supreme law of the land, being (except in so far as it is controlled by the national constitution itself) thus absolutely unlimited, it may, without doubt, as I think, authorize all citizens without regard to sex, to participate in the choice of presidential electors. But it has been suggested to me that possibly by the State legislature, as used in the section of the national constitution which we have been considering, was meant the whole people of the State in whom the legislative power originally resides and not the organized legislative body which they may create. We answer first that the language of the section will not admit of this construction. It clearly recognizes a distinction between the State or the people of the State, and its legislature. The language is not "each State shall appoint in such manner as it may direct," etc., but it is, "each State shall appoint in such manner as the legislature thereof may direct," etc.
Again, it is a familiar canon of construction that in determining the meaning of a statute, recourse may be had to the history of the times in which it was enacted. When the Constitution of the United States was framed, all of the States had organized legislatures, or representative bodies who wielded the legislative power, and without doing violence to language, we must suppose that it was to them the constitution referred. Again, the State legislatures are referred to not less than ten times in the national constitution, and in each instance the reference is such as to make it clear that the organized representative bodies are intended, and in article 5 they are, in express terms, distinguished from conventions of the States. Indeed, the fundamental idea of the American government is that of a representative republic as opposed to a pure democracy, and it may well be doubted whether a State government, without a representative legislative body of some kind, would, in the American sense, be republican in form.
Finally, it is apparent from the debates in the constitutional convention which framed the constitution, and from the whole plan devised for the election of president and vice-president, that it was not intended by the framers of the constitution to commit directly to the whole people of a State the authority to determine how the presidential electors should be chosen. Nothing seems to have given the convention more trouble than the mode of selecting a president. Many plans were proposed. Chief among these were: election by congress; election by the executives of the States; election by the people; election by the State legislatures; and election by electors. These were presented in many forms. The convention decided not less than three times, and once by a unanimous vote, in favor of election by the national congress, and as often reconsidered it (2 Madison Papers, pp. 770, 1,124, 1,190). The proposition that the president should be elected directly by the people, instead of by the national congress, received but one vote, while the proposition that he should be appointed by the State legislatures received two votes (2 Madison Papers, p. 1,124). The most cursory examination of the debates will, I think, convince any mind that it was to the organized legislature of the State, and not to the people of a State, that the framers of the constitution intended to commit the power of determining how the presidential electors should be chosen. It seems, both from the debates and the plan adopted, to have been their studied effort to prevent the people from acting in the choice of their chief magistrate otherwise than through their representatives, and in no single step of the process are the people directly required or authorized by the national constitution to act, but in every instance the duty and the authority are devolved upon their representatives. For these reasons I think it clear that it was intended to invest the organized State legislatures with the power of determining how the presidential electors should be chosen, and that the discretion thus lodged in the legislature cannot be limited or controlled by a State constitution.
W. De Witt Wallace.