The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members
From the New York Packet.
Tuesday, February 26, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE more candid opposers of the provision respecting elections, contained in the plan of the convention, when pressed in argument, will sometimes concede the propriety of that provision; with this qualification, however, that it ought to have been accompanied with a declaration, that all elections should be had in the counties where the electors resided. This, say they, was a necessary precaution against an abuse of the power. A declaration of this nature would certainly have been harmless; so far as it would have had the effect of quieting apprehensions, it might not have been undesirable. But it would, in fact, have afforded little or no additional security against the danger apprehended; and the want of it will never be considered, by an impartial and judicious examiner, as a serious, still less as an insuperable, objection to the plan. The different views taken of the subject in the two preceding papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination, at least, will be guiltless of the sacrifice.

If those who are inclined to consult their jealousy only, would exercise it in a careful inspection of the several State constitutions, they would find little less room for disquietude and alarm, from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. A review of their situation, in this particular, would tend greatly to remove any ill impressions which may remain in regard to this matter. But as that view would lead into long and tedious details, I shall content myself with the single example of the State in which I write. The constitution of New York makes no other provision for LOCALITY of elections, than that the members of the Assembly shall be elected in the COUNTIES; those of the Senate, in the great districts into which the State is or may be divided: these at present are four in number, and comprehend each from two to six counties. It may readily be perceived that it would not be more difficult to the legislature of New York to defeat the suffrages of the citizens of New York, by confining elections to particular places, than for the legislature of the United States to defeat the suffrages of the citizens of the Union, by the like expedient. Suppose, for instance, the city of Albany was to be appointed the sole place of election for the county and district of which it is a part, would not the inhabitants of that city speedily become the only electors of the members both of the Senate and Assembly for that county and district? Can we imagine that the electors who reside in the remote subdivisions of the counties of Albany, Saratoga, Cambridge, etc., or in any part of the county of Montgomery, would take the trouble to come to the city of Albany, to give their votes for members of the Assembly or Senate, sooner than they would repair to the city of New York, to participate in the choice of the members of the federal House of Representatives? The alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws, which afford every facility to it, furnishes a ready answer to this question. And, abstracted from any experience on the subject, we can be at no loss to determine, that when the place of election is at an INCONVENIENT DISTANCE from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles. Hence it must appear, that objections to the particular modification of the federal power of regulating elections will, in substance, apply with equal force to the modification of the like power in the constitution of this State; and for this reason it will be impossible to acquit the one, and to condemn the other. A similar comparison would lead to the same conclusion in respect to the constitutions of most of the other States.

If it should be said that defects in the State constitutions furnish no apology for those which are to be found in the plan proposed, I answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. To those who are disposed to consider, as innocent omissions in the State constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single State should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the United States? If they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. And in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single State should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen States, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests.

Hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. But there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: I allude to the circumstance of uniformity in the time of elections for the federal House of Representatives. It is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. If each State may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. The times of election in the several States, as they are now established for local purposes, vary between extremes as wide as March and November. The consequence of this diversity would be that there could never happen a total dissolution or renovation of the body at one time. If an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. The mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. There is a contagion in example which few men have sufficient force of mind to resist. I am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations.

Uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the Senate, and for conveniently assembling the legislature at a stated period in each year.

It may be asked, Why, then, could not a time have been fixed in the Constitution? As the most zealous adversaries of the plan of the convention in this State are, in general, not less zealous admirers of the constitution of the State, the question may be retorted, and it may be asked, Why was not a time for the like purpose fixed in the constitution of this State? No better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. The same answer may be given to the question put on the other side. And it may be added that the supposed danger of a gradual change being merely speculative, it would have been hardly advisable upon that speculation to establish, as a fundamental point, what would deprive several States of the convenience of having the elections for their own governments and for the national government at the same epochs.


Guest Essayist: James D. Best, author of Tempest at Dawn

Federalist 59-61 address the federal power to regulate the election of senators and representatives. The clause being defended by Hamilton reads: “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.”

Vox Populi, in Anti-federalist 59, argued against the national congress regulating the election of senators and representatives. This was viewed as an infringement on state sovereignty and a possible tool of national tyranny.

In Federalist 59, Hamilton defended this clause by saying that every government must have the means to defend itself. The safety of the national government depended on its authority to override state rules that were harmful to the election of its own members.

In Federalist 60, Hamilton again argues against unfettered state authority over the election of members of the United States Congress. A national override of election laws is less pertinent than the arguments used by Hamilton. He defends the clause by stressing that safety from oppressive laws comes from the careful distribution of power and divergent methods of selecting each component of the national government.

He says, “the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”

One is struck by the recurrence of the checks and balances theme—in Madison’s convention notes, the Constitution itself, the Federalist Papers, and the minutes of the ratification conventions. There can be no doubt that the Founders believed that liberty depended on one part of the government acting as an effective check on all other parts of the government, and that meant between the national branches and between the states and the national government. The Founders abhorred concentrated power. They believed that only through judiciously balanced power—constituted by dissimilar modes—could liberty survive the natural tendency of man to dictate the habits of other men.

Hamilton made another interesting argument. If elected officials violated the Constitution to usurp power, “Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective states to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people?”

Tuesday, July 20th, 2010

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.


Howdy from Texas! I want to thank you for joining us today and I want to thank Professor Kyle Scott for his insightful essay. We are so blessed to have such esteemed scholars donating their time to Constituting America and to all of us who are reading, blogging and eager to learn.

I always strive to find what it is in the Federalist Paper of the day that is relevant to today. I am never without a loss, as there is always something that is brilliantly and passionately poignant.

Today, in Federalist Paper No. 61 by Alexander Hamilton, I was captivated by his arguments, which are consistently coherent and colorful. How much fun it would have been to have watched him in action and listen to his orations. His mind was active, alert, educated and astute. His intellectual reasoning and educated acumen, when paired against his opponent, was like a chess game and Alexander Hamilton was always saying, “check mate.”

The obvious relevancy of Federalist Paper No. 61 to today is in regard to his comparisons that the federal rules of the government regarding elections were no different than the rules of the state. Flip this and we have Arizona.

Arizona’s law is no different than the Federal law.

If anything, the state law is more lenient than the Federal law. Oh, if only, we had Alexander Hamilton here with us today to reveal this absurdity with his eloquent and searing charm.

My friend, Mark Joseph, writes about American’s knee jerk reaction to issues without taking the time to understand them. The link to his essay is at the end of this essay.

Many people in America have lost all reason, all desire to check the facts. One just jumps on the ideological bandwagon of the “party line.”

Political activism without preparation is like a powder keg. It only leads to dangerous incitation.

Corrupt or devious officials in power feed on the naiveté of the people. This is their trump card.

The genius and majesty of the people prevail only with an inquisitive and hungry appetite for the truth.

As John Adam’s said, “Liberty cannot be preserved without a general knowledge amongst the people.”

I say, “Liberty cannot be sustained without a general knowledge of the United States Constitution.”

God Bless,

Janine Turner

Wednesday, July 21st, 2010


Greetings from Mt. Vernon, Virginia!

Thank you to Professor Kyle Scott for soaring to 50,000 feet and giving us the aerial view of Hamilton’s important point in Federalist 61!  I was in the weeds, struggling to make sense of where and when elections should be held, and the most important point of this paper sailed right over my head until I read Professor Scott’s essay.

Federalist 61 gives us an important insight and specific example of the founders’ view and intention of the construction of the United States Constitution:  broad principles outlined that provide a structure and framework to guide the specifics of future legislation as time and events require.

Our founders had great wisdom as to what is appropriate for the Congress to decide, the specific powers that should be delegated to the federal government, where the federal government’s limits are, and what needed to be carefully spelled out and guarded in the Constitution.  Reading back through Federalist Papers 52-61, the founders gave Congress many powers when it came to elections: deciding the time of elections, the power to modify election law, even the power to alter the total number of U.S. Representatives.  These are all powers Publius argues are “safe for the legislature to decide.” The important guiding principles, such as the frequency of elections, and who may vote (broadened with Amendments, thanks to the “genius of the people”) are safely embedded in the Constitution.

In Federalist 51, Publius writes:

In framing a government which is to be administered by men over men, the great difficulty lies in this:  you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Giving the government any power over the laws affecting the election of its own members is a tricky proposition.  The founders’ carefully crafted system of checks and balances, including “THE CONSENT OF THE PEOPLE,” (Federalist No. 22) have preserved our liberty for over 200 years.

Let us not forget the words of Federalist No. 60 regarding the ultimate “check” of the people:

“Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective States to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people?”

Looking forward to hearing everyone’s thoughts and comments today!!

Stay cool!

Cathy Gillespie

Wednesday, July 21st, 2010


Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

In Federalist #61 Hamilton reveals his theory of constitutional construction in a peculiar way. Hamilton’s view of the role constitutions should serve is consistent with what modern political scientists consider vital for a long-lasting constitution. Constitutions, if they are to last, must be broad and treated with reverence.

The topic of #61 is a carryover from #59 and #60; for the first of these I have already provided comments. The reason Hamilton cannot leave this topic alone is because his opponents will not. Much of the Federalist owes its structure to the fact that Publius was engaged in an ongoing public opinion campaign. If Publius felt that it lacked public support on a particular facet of the Constitution because of an objection raised by an Anti-Federalist then Publius would write another paper on the topic. Because many of the objections are being levied by those who favor a more decentralized structure than what the Constitution proposes; Hamilton uses the states to his advantage. In this paper He shows that, as has been customary throughout the Federalist, the provisions which are incorporated into the Constitution also appear in some of the state constitutions. This is a successful rhetorical strategy albeit one that lacks some logical and philosophical rigor. For instance, while Hamilton never reconciles the Constitution’s inconsistency with the U.S. Declaration with regard to the location of elections, he does make it a more palatable inconsistency to show that the people of New York have dealt with this in their own state without causing much of a problem.

Hamilton gives a straightforward defense of placing the power to determine when and how elections are held in the latter-third of #61, something for which the reader has been patiently awaiting. Putting this power into the hands of the national government is a matter of political expediency. If the power were left in the hands of the states there would be little or no consistency with regard to elections and members elected to the House and Senate would begin their terms anytime between January and December depending upon when their state held elections. One could easily imagine what types of problems this might cause. Of course, Hamilton knows that there is an easy objection to his claim: Why leave the decision to Congress? Why not specify in the Constitution when all elections for national office are to be held? Hamilton’s response is where we see his theory of constitutional construction come through.

Hamilton objects to the inclusion of such a specification in the Constitution because he is open to the possibility that events and changes may occur that would require an amendment to the Constitution as it relates to this matter. If there are such events on a regular basis, amending the Constitution on a regular basis will become necessary. Hamilton does not want to see this happen. For if Constitutions are specific in their provisions, and they contain too numerous provisions, they will require constant amendment. Being so specific is not what Constitutions are for, but rather laws. Constitutions provide the scaffolding and the laws provide the brick and mortar. Moreover, the more we amend Constitutions the more feeble they become, if not in actuality, then at least in perception, which then leads to an actual weakening. If citizens and officials perceive their Constitution as weak, then the whole system runs the risk of collapsing. A Constitution must be held in reverence by the people and officials; which means it should not be tinkered with too much after it is ratified. Hamilton knew this, and so did the Framers who approved of Article V which made the amendment process so difficult and thus unlikely.

Whether we agree or disagree with Hamilton’s position that the threat to a just government comes from below rather than above, we cannot deny that his understanding of constitutional construction is accurate.

Wednesday, July 21st, 2010

Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.