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or the past. No, the great body of American constitutional law cannot be found in the written instruments, which we call our constitutions; it is unwritten, in the constitutional and legal acceptation of the term, and is to be found in the decisions of the courts and the acts of the National and State legislatures, constantly changing with the demands of the popular will. These mutations are not so notable or so striking in the constitutional law of the States, as in that of the United States, nor are they so frequent ; but the difference is only in degree, and is to be accounted for on the ground, that the State constitutions are not so elementary as the Federal Constitution, and are therefore more inflexible, and hence require frequent revisions by constitutional convention,
In the succeeding pages, I will give striking examples of the mutations of constitutional law, which will, I think, incontestably prove the correctness of my thesis; and, after proving that the changes do occur, I will attempt to give a logical and ethical justification of the fact.
THE ELECTORAL COLLEGE. Vas
As a consequence of the struggles of the Staterights and National parties, in the convention of 1787, the selection of a President was provided for on a very unique plan. In order to keep the executive separate from and independent of the other departments of the government, some method had to be adopted, whereby his election could be had without the instrumentality of Congress. In order to satisfy the National party, the principle of popular representation had to be recognized, while State lines could not be ignored without causing dissatisfaction among the adherents of State sovereignty; and there was entire unanimity among the delegates of all shades of political thought that the President and VicePresident should be selected free from party strife, so that they could faithfully represent the people, irrespective of party ties and party policies
. To meet every demand, the convention devised the plan of election by electors chosen by the States, each State to choose as many electors as it had senators
Y and representatives in Congress. These electors were required to meet in their respective States to cast their votes for the men whom they considered best fitted to assume the responsible duties of these offices. These votes, sealed up, were to be transmitted to Congress, and to be opened by the President of the Senate and counted in the presence of the two Houses assembled in joint session. Provision was made for election by the Houses of Congress, the President by the House of Representatives, and the Vice-President by the Senate, in case no one received a majority of all the votes cast.
One great object, held in view in the adoption of this artificial system of election, was to remove the selection of the President as far away from the people as it was possible. Not only was that object manifest by the adoption of the plan itself, but it was to be observed by the manner of selecting the electors, viz., by the State legislatures, which at first generally prevailed. In the first two elections, there was no party strife, for no one appeared as a candidate for the Presidency in opposition to the man who was facile princeps among his countrymen. But even in the second election, in respect to the Vice-Presidency, party influence began to be felt in the actions of the electoral college. The electors who leaned to the Federal party were expected to vote for John Adams, while the anti-Federalists were expected
to vote for George Clinton. But in the third election, party strife was fully developed ; and although no pledge was exacted of the electors, party influence was sufficiently strong to compel most of the electors to vote for the leaders of their respective parties, John Adams and Thomas Jefferson. By the time that the fourth election was held, party organizations were perfected; each party put up its candidates for President and Vice-President before the selection of the electors, and the contest was not over the electors so much as it was over the respective candidates for President and Vice-President, which the two parties had nominated. Quietly aná as a matter of course, apparently, the discretion of the electors, in the performance of their duty, vanished in the air, and ever since, the electors, who, according to the spirit of the constitutional provision, were expected to exercise a wise discretion in the selection of a President and Vice-President, and who were first selected, and were intended by the framers of the Constitution to be selected, for their superior wisdom and knowledge of the merits and qualifications of our public men, are called on to simply register the decree of the nominating convention of the party which was successful at the polls. The contest is at an end, when the election for electors is
It is not necessary to wait for the meeting of the electors in order to learn who would be the next
President and Vice-President. Public opinion is so strong against the exercise of discretion by an elector, that if one should be rash enough to exercise the discretion, which the spirit of the written Constitution requires him to exercise, he would be buried under a public obloquy, that would be without limit, for he would be considered guilty of a treachery to his party, that would find condonation nowhere.
Now what is the real, living constitutional rule as to the selection of a President and Vice-President? that they are to be selected after deliberation by the electors, as being the men whom the electors considered best fitted to fill the positions; or that they must be nominated by parties, and selected by a popular election, indirectly through the choice of the electors of one party or of the other? There can be no hesitation in coming to the conclusion that the latter is the real, living constitutional rule.
But it must not be supposed that the written constitutional rule has been altogether deprived of its influence upon popular action. Following the fundamental rule, which requires obedience to the written word, until the power which enacted it has repealed it, the popular selection of President and Vice-President is still required to be made indirectly through the election of presidential electors. And there is no better illustration of the doctrine that constitutional law is the resultant of all the forces