in any way abridged, except for participation in rebellion or other crime, the basis of representation therein 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 State" (commonwealth).1

This clause has led some students of the constitution to claim that the presidential electors must be chosen by popular election; i.e. that the legislature of the commonwealth has no power to order their selection in any other manner. The declaration in the original provision that each "State" (commonwealth) shall appoint the electors appears also to support this view. It is argued that the "State" (commonwealth) is the people, not the legislature. But I think this is fallacious. No one, I think, would claim that this clause of the fourteenth Amendment orders the judges of a commonwealth to be elected by the voters, and yet it certainly does if it requires the presidential electors to be so chosen. I take it that this clause simply means that, when the legislature of the commonwealth commands the appointment of presidential electors by popular election, then it must follow the rule of suffrage indicated in this clause or suffer the reduction of the number of electors from the commonwealth, in proportion as the rule of suffrage which it ordains narrows the suffrage indicated in this clause. Thus far, and thus far only, is the full power of the legislature of the commonwealth over the election of the presidential electors modified by this provision.

As to the argument that the commonwealth must appoint the electors and that the commonwealth is the people, I will only say that the people can be the commonwealth only when politically organized. It will hardly be claimed that the people as organized in the voting precincts are the commonwealth. At the time of the formation of the constitution, the people of a commonwealth were regarded as

1 United States Constitution, Amendments, Art. XIV, sec. 2.

organized, if at all, in the legislature of the commonwealth. The organization of the people of the commonwealths in general conventions was commanded by the constitution for the purpose of ratifying the constitution and subsequent amend ments to it. The people of the commonwealths organized in general conventions had also framed the governments of the commonwealths. We might call these conventions the extraordinary organizations of the people. The legislature was certainly regarded as the ordinary organization of the people of a commonwealth. What was meant by the phrase: "Each State" (commonwealth) "shall appoint," was that in each "State" (commonwealth) shall be appointed. The original resolution upon this subject proposed to charge the legislatures of the commonwealths, expressly, with the duty of choosing the presidential electors themselves.1 The change of language was undoubtedly caused by the states-rights sensitiveness about too exact directions being issued to the commonwealth legis latures. There was certainly no intention of making the appointment of the presidential electors subject to popular election. I think it is evident that the framers were anxious to avoid this. The well-known fact that in several of the commonwealths the legislatures chose the presidential electors at the first election and for a considerable period afterwards, is certainly good evidence of the general opinion of the meaning of the phrase, “Each State" (commonwealth) "shall appoint." It appears to me manifest, therefore, that the original intention of the constitution was to invest the legislatures of the com monwealths with plenary power over the appointment of the presidential electors, except as to the time of their appointment, and to exclude not only any interference of the general government in this sphere, but also any interference, not permitted by the legislature, on the part of any other organ of the commonwealth. If, however, the general convention

1 Elliot's Debates, vol. i, p. 217.

of a commonwealth should undertake to make provision in the organic law of the commonwealth for the election of the presidential electors in opposition to the will of the legislature, and if the proposition of the convention should be ratified in the manner provided in the organic law of the commonwealth for making such propositions valid parts of its organic law, it is somewhat difficult to see how the legislature of the commonwealth could defeat the same, except by failing to provide the means and measures for carrying out the elections by the persons and in the manner ordained by the organic law. It is true that the organic law might itself provide the means and measures in sufficient detail and address its commands for the execution of the same to the executive power of the commonwealth. If so, the only independent means possessed by the legislature to defend the power conferred upon it by the constitution of the United States would fail. Whether then, as a last resort, the legislature of the commonwealth could appeal to the general government to protect it in the possession of this power against any other organ of the commonwealth calling itself the "State" is a new question. The legislature might, by choosing a set of electors itself, or ordering them chosen in some other way than that ordered by the organic law of the commonwealth, cause two sets of returns to be sent to the Congress and thus raise the question. The Congress would then be in position to determine which were the true electors; i.e. it would be in position to determine whether there is any organization of a commonwealth, outside of the legislature thereof, which is empowered by the constitution of the United States to appoint presidential electors, unless authorized thereto by the legislature of the commonwealth. Such a determination by the Congress, however, would not be a law. It would be only a decision in a particular case. It would not, therefore, be binding upon a succeeding Congress or even upon the same Congress in another case.

I do not think it can be successfully gainsaid that the legislative department of the general government has the power to define the word "State" in this connection and in every other connection in which it occurs in the constitution of the United States. The constitution itself does not define the word. Any word used in the constitution and not defined thereby, may be defined, primarily, by the legislative department, and this definition will be ultimate as well as primary, unless the judicial department should revise it. It would also be the law of the land until the judicial department should revise it. It is most likely, however, that the judicial department would refuse to interfere with the legislative definition on the ground that the question is one purely of politics. It would thus seem that in this question the legislature of the general government is the arbiter. It is not a controversy which is at all likely to arise, but should it do so, it will go to the very foundation of our whole political system.

2. From the completion of the "appointment" of the electors forward, the process is no longer subject to regulation and control by the commonwealths or the legislatures thereof. What the constitution of the United States does not, thereafter, itself regulate in detail, must be regulated by the organs of the general government.

The constitution commands the electors to meet in their respective commonwealths upon a day which the Congress may determine (and which Congress has fixed upon the second Monday in January succeeding their appointment), and to vote by ballot for President and Vice-President, one of whom at least shall not be an inhabitant of the same commonwealth with themselves. The constitution further commands "that the electors shall name in their ballots the persons voted for as President, and in distinct ballots the persons voted for as Vice-President; and that they shall make

1 United States Constitution, Amendments, Art. XII, 1; Ibid. Art. II, sec. I, § 3; United States Statutes at Large, vol. 24, p. 373.

distinct lists of all persons voted for as President and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the President of the Senate."1 This language seems exact enough`and comprehensive of every detail; but it has not been found in practice to be entirely sufficient. The Congress has felt it necessary to elaborate this part of the procedure still more minutely.

Congress requires the governor of each commonwealth to furnish to the persons duly chosen electors three copies of the certificate of their election, and orders the electors to make out three lists of all the votes given by them for President and Vice-President, and to attach to each of these lists one copy of this certificate of their election, and to seal them and certify upon them that they contain all of the votes of the commonwealth for President and Vice-President, and to transmit one set of these papers, forthwith after the second Monday in January upon which they shall give their votes, to the President of the Senate, by a messenger appointed in writing under their hands or the hands of a majority of them, and to transmit another set, at the same time, to the President of the Senate, by mail, and to deposit the third set with the judge of the district in which the electors shall assemble; and orders the Secretary of State of the United States to send a special messenger to the said judge to obtain this list, in case neither of the other two shall have been received at the seat of government on or before the fourth Monday of the month of January in which the electors shall have held their meeting.2

The Congress furthermore commands the governor of each commonwealth to transmit, so soon as practicable after the

1 United States Constitution, Amendments, Art. XII, § 1.

2 United States Revised Statutes, secs. 137, 138, 139, 140: United States Statutes at Large, vol. 24, p. 373; Ibid. vol. 25, pp. 613, 614.