Federalist No.59

Concerning The Power Of Congress To Regulate The Election Of Members

Friday, February 22, 1788

Alexander Hamilton


The issue covered by this paper concerns the power of Congress to alter regulations concerning the election of members to its own house.


For the sake of clarity, it must be noted that the power to appoint Senate members was altered by the 17th Amendment, 1913, removing the power from State legislatures and placing the responsibility with State voters to elect Senators. The following discussion is naturally based upon the original Constitution and Hamilton's defence of it.


The proposed Constitution allowed the States to retain the power to hold elections for the House of Representatives and Senate, but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators. Hamilton claims that this had been criticised by radical and moderates alike, and that he knew one man who agreed with the Constitution entirely except for this one point.


Hamilton’s response is simple, but he takes the rest of the paper to elucidate his reasons: that every government ought to contain in itself the means of its own preservation. It seems like a dramatic justification, but his assertion is based on the argument that without this power, the Federal government would be at the mercy of State governments to determine elections that would allow the continued operation of Congress, the House of Representatives in particular. Hamilton acknowledges that any power can be abused, and therefore decides that it is safer to place that power with the institutions that are most affected by it and through which it would be most natural to operate.


Hamilton argues that the decision of the members of the Constitutional Convention to leave the power to elect members to the Senate by the States does not pose the same threat. Apart from the fact that it is within States’ interests to be represented at a federal level, the Senate’s composition and terms make it less susceptible to government disruption. Senators have six-year terms and the Senate has a one third rotation every two years, with only two senators at most per State. Hamilton’s opinion is that any government that was so bad as to cause the enough States to cease appointing senators so as to be a disruption to government business, would be a government for which no good citizen could desire its continuance. Hamilton does not think this scenario at all likely.


Hamilton concedes that the States also have an interest in representation in the House, which would in normal circumstances mean that the election of members to the House by States should not be an issue. But Hamilton identifies two instances in which the power to elect, if left solely with the States, could threaten the Union.


The first threat resides in the disparities between States. Some States have large economies and populations, others not. This is an inference I have drawn from discussions in other papers. But Hamilton explicitly talks about the dangers of State rivalry and personal aggrandizement, as well as the attraction of separate confederacies to some factions, which will always multiply the chances of ambition. It is a point that clearly speaks to the differences between Northern and Southern States, for example, concerning their economies and attitudes to the issue of slaves; both issues which were divisive and had already been addressed in previous Federalist papers. The Articles of Confederation could not force States to remain in a Union, and a confederation of States was shaky after the war with England. Hamilton and Madison had judged the importance of a Union for economic survival and security. In Hamilton’s eyes, should the Federal Constitution not allow the regulation of elections of House Representatives, it was at the mercy of the States. Without the provision for the Federal government to hold elections, hostile States could merely choose to deny Congress members to run government and the Union might collapse. Of course, the possibility of States’ hostility to the Constitution was made real in 1860 when Southern States did secede.


The second threat perceived by Hamilton was an external one: that foreign powers might seek to undermine the unity of the country for their own purposes:

It ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe: and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers…

Hamilton believed that ceding the power of elections to the States was an existential threat. It would leave open the possibility that individual States, should they be courted by foreign powers, would have the power to deny elections of members to the House of Representatives. This does not seem such an exaggeration now that President Donald Trump, himself, was impeached for allegedly seeking foreign influence in the 2020 election, and the determination that Russia interfered in the 2016 election, or that the investigations of the January 6 Committee which revealed Trump's attempts to influence his own election at State levels.

21 November 2019

Revised and updated 22 June 2022