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ment; which has a system of courts to decide any controversy concerning an appointment; which has a military and civil power which can record its decree; and which from its high plane of sovereignty can command respect for its choice, and if its choice is not respected can command obedience to its will.
It is said that this clause of the Constitution provides that this appointment shall be made "in such manner as the legis lature may direct," and it is claimed that these words are so plenary as to permit the legislature to take this great power from the sovereign State, and, cutting it up, divide it among fourteen disjointed fractions of the territory of the State, each of which shall choose one elector of President and Vice President of the United States. It is sufficient answer to this to say, that under the form of prescribing the manner in which the State shall appoint, the power is not conferred upon the legislature to deprive the State of all appointing power.
The Supreme Court of the State of Michigan, "admitting that if the question were to be determined solely by reference to the language employed, there would be much force in the contention that the State must act as a unit, and that no lesser body could be delegated to perform any portion of the duty vested in the State body corporate, and that it might possibly be held that the words 'in such manner as the legislature thereof may direct' confer only the limited power of directing how the State, acting as an entirety, shall make its appointment," held that the case was a proper one in which to have resort to contemporaneous construction, and reached the conclusion that such contemporaneous construction settled the legality of district electors.
We submit, with great deference, that that learned court was in error in this respect: (a) because the language of the Constitution is so plain, clear and determinate that it requires no interpretation; and (b) because there has, in fact, been no such interpretation.
(a) The rule as to interpretation is thus stated by Mr. Justice Story: "Where its words are plain, clear and determinate they require no interpretation, and it should therefore
be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil. Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted which, without departing from the literal import of the words, best harmonizes with the nature and objects, scope and design, of the instrument. Contemporary construction is properly resorted to to illustrate and confirm the text, to explain a doubtful phrase, or to expound an obscure clause; and in proportion to the uniformity and universality of that construction, and the known ability and talents of those by whom it was given, is the credit to which it is entitled. It can never abrogate the text, it can never fritter away its obvious sense, it can never narrow down its true limitations, it can never enlarge its natural boundaries." Now, in this case, as has already been said, the language is clear, and no interpretation is necessary.
(b) But even if it were otherwise, there has been no such continuous action as to amount to an interpretation. The mere fact that among the variant methods of appointing presidential electors, which came into practice a few years after the adoption of the Constitution, a few of the States did for a time choose electors by districts, is not evidence of any such contemporaneous construction as should conclude the court from giving the true and plain exposition of the text. On the contrary, the fact, which is historical, that all the States which had originally adopted a district system soon abandoned it, and that as early as 1834 presidential electors in every State in the Union were appointed by the State, being chosen either by the popular vote or by the legislature, is evidence that the real contemporaneous construction of this provision was adverse to the district plan.
In1 the election of 1788, ten States participated. In five, the appointments were made by the legislatures. In two,
1 In the briefs of counsel this subject is treated much at length, with full references to authorities. A brief summary is thought to be sufficient to make the general line of argument clear.
the electors were elected by the people on a general ticket. In two, the State was divided into congressional districts, in each of which two candidates for elector were chosen, from which the legislature elected one as an elector. In Virginia alone, were the electors elected separately in each district.
Fifteen States took part in the election of 1792. In nine the electors were chosen by the legislature. In three, they were elected by the people on a general ticket. In Virginia, as before, the electors were elected in separate districts, and Massachusetts and North Carolina adopted schemes partaking in part of the nature of an election by the people in districts, and in part of the nature of an election by the legislature.
In the election of 1796 sixteen States took part. In nine, the electors were appointed by the legislature. Two adhered to a popular election on a general ticket. Three adhered to the district system, Massachusetts adhered to its own system and Tennessee delegated the power to citizens named by the legislature.
In 1800 party strife ran high, and some changes were made and others attempted with a view to affect the general result. Massachusetts and Virginia gave up the district system and adopted that of electing by the legislature. Pennsylvania adopted a modified form of the latter system.
The action of the two populous States of Virginia and Massachusetts in abandoning the district method in the election of 1800, but for opposite political or party reasons, settled the fate of that method, and it was only a question of time when it would entirely disappear. The system of electing by general ticket was definitely adopted by North Carolina in 1812, Kentucky and Massachusetts in 1824, Indiana and Illinois in 1828, New York, Delaware, Tennessee, and Maine in 1832; and by Maryland in 1838. Since the presidential election of 1832, the district method has not been used by any State in the union.
This is an abandonment for sixty years; and when the reasons which led the States to this course are considered, it is certainly a most important and significant fact. The method of having the electors appointed by the concurrent or joint
vote of the two houses of the legislature of a State, was also abandoned as a part of the same evolution, and with nearly the same unanimity. South Carolina, with a legislature always fresh from the people, continued the practice until 1860. All the other States had abandoned the system by 1828, except Delaware, and it was abandoned there before 1832. During the reconstruction period, before all the Southern States had been re-admitted to Congress and the Union, Florida used the legislative method for a single election, that of 1868, the legis lature and state officers having been elected in May, and no other state election being provided for until 1870. Colorado was admitted to the Union August 1, 1876, and a legislature and state officers were elected on the first Tuesday of October. To save the expense and trouble of another election, the legislature made the appointments for that year. The legislative appointments in Florida and Colorado were, therefore, provisional or temporary; and that method was resorted to because of the exceptional conditions, and not for the purpose of overcoming or overriding the political sentiments or preferences of a majority of the people in those States.
The district system of choosing electors was not obnoxious to the Constitution in its original object and purpose, for the reason that if that object and purpose had been attainable and had been actually accomplished, any division in the votes of the electors of a State, would have been the result of an exercise by each elector of his individual judgment and discretion, and not the result of the political will or partisan voice of the district by which he was chosen; but it is obnoxious to that plan as it was practically and ultimately developed, and as it has now for sixty years actually existed. The legislation establishing it in the early history of the nation took place in times of partisan excitement, and should have no more weight with a court as a construction of the Constitution than the law that we are discussing should have weight; for the legislation then was prompted by and born of the very same spirit of which this law is born, a mad desire for temporary power. There is no rule of constitutional interpretation, or of judicial duty, which requires the court, in determining the constitu
tional validity of the district system, to adhere to the obsolete original design of the Constitution, and to disregard the plan of the electoral college as it actually exists, after a century of practical experience and development.
In the late Mr. Justice Miller's Lectures on the Constitution of the United States, p. 149, is the following: "As originally adopted, and as it now exists, it was supposed that the body of electors interposed between the state legislatures and the presidential ofiice would exercise a reasonable independence and fair judgment in the selection of the chief executive of the national government, and that thus the evil of a President selected by immediate popular suffrage on the one side, and the opposite evil of an election by the direct vote of the States in their legislative bodies on the other, would both be avoided. A very short experience, however, demonstrated that these electors, whether chosen by the legislatures of the States, as they were originally, or by the popular suffrage of each State, as they have come to be now, or by limited districts in each State, as was at one time the prevailing system, are always but the puppets selected under a moral restraint to vote for some particular person who represented the preferences of the appointing power, whether that was the legislature or the more popular suffrage by which the legislature itself was elected. So that it has come to pass that this curious machinery is only a mode of casting the vote to which a State is entitled in the election of President in favor of that candidate who is the favorite of the majority of the people entitled to vote for the more popular branch of the state legislature in each State.”
And in In re Green, 134 U. S. 377, 379, this court said, speaking through Mr. Justice Gray :
The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of