Obrázky stránek
PDF
ePub

The first apportionment bill passed by Congress was vetoed by President Washington as unconstitutional in that it provided for a representative for each thirty thousand of population, the minimum fixed by the Constitution, and also an additional number to the States having the largest fractions left over after the division was made. 6

Until 1842 fractions of populations left over by the dividing of the populations of the several States by the number selected for determining the number of representatives, went unrepresented. Since that time, however, where these fractions have exceeded a half of the ratio number, an additional representative has been allowed.

§ 236. Congressional Districts.

The division of the States into congressional districts for the purpose of selecting representatives is left to the state legislatures. Congress has, however, provided that these districts shall be composed of contiguous territory. It has become an established rule of political practice, though not one of constitutional obligation, that a representative shall be a resident of the district in which he is elected. Representatives are, however, occasionally elected by districts in which they do not reside, and in such cases there is no question as to their right to sit. In certain cases, congressmen at large, that is, from the whole State, are elected. This happens when a State has not been divided into districts, or where, after a reapportionment, an additional representative or representatives have been allotted a State and that State has not re

6" Construing the Constitution to authorize a process by which the whole number of representatives should be ascertained on the whole population of the United States, and afterwards 'apportioned among the several States according to their respective numbers,' the Senate [in an amendment which the House accepted] applied the number thirty thousand as a divisor to the total population, and taking the quotient which was one hundred and twenty, us the number of representatives given by the ratio which had been adopted in the House where the bill originated, they apportioned that number among the several States by that ratio, until as many representatives as it would give were allotted to each. The residuary numbers were then distributed among the States having the highest fractions." Marshall, Life of Washington, V, 319. Cf. Foster, Commentaries on the Constitution, I, 395.

districted itself so as to provide the necessary additional districts. In such cases, of course, only the additional representatives are elected at large.

§ 237. Members of the House of Representatives: by Whom Elected.

The Constitution provides that for the election of Representatives to Congress," the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the state legislature." This places the determination of who may exercise the suffrage wholly within the control of the States, except for the restriction placed upon them by the Fifteenth Amendment. There thus exists the rather curious fact that the National Government though able to control its citizenship by naturalization is not able to confer the suffrage for the election even of its own officials; whereas the States may confer, and, indeed, in a number of instances have conferred this suffrage upon persons not citizens of the United States."

$238. The Right to Vote for Representatives not a Necessary Incident of National Citizenship.

That the suffrage is not a necessary incident of federal citizenship is declared by the Supreme Court in Minor v. Happersett, a case in which it was argued that a woman, a citizen of the United States, was, as such, entitled to a vote. In this case the direct question was presented whether all citizens are necessarily voters. This the court answered by declaring that the United States has no voters of its own creation in the States. After going on to show that at the time the Constitution was adopted and ever since, the right of suffrage in the States had not been coextensive with that of citizenship, the opinion concludes: "For nearly

7 E. g., upon aliens who have declared their intention to become citizens but have not yet taken out their final papers. Hare (American Constitutional Law. p. 529) denies the constitutionality of this. He says: "Reading the Constitution in the light of the Fifteenth Amendment, the just inference would seem to be that national citizenship is a prerequisite to the right of suffrage." This view is plainly incorrect.

8 21 Wall. 162; 22 L. ed. 627.

[ocr errors]

ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon anyone, and that the constitutions and laws of several States which commit that important trust to men alone are not necessarily void, we affirm the judgment of the court below."

It cannot be said, therefore, that the right to vote either at federal or state elections is in any case determined directly by federal law. Even the Fifteenth Amendment does not itself give to any one the right. In United States v. Reese the court say: "The Fifteenth Amendment does not confer the right of suffrage upon any one. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen over another, on account of race, color, or previous condition of servitude. It follows that the Amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color or previous condition of servitude."

[ocr errors]
[ocr errors]
[ocr errors]

And in United States v. Cruikshank10 the court say: "In Minor v. Happersett (21 Wall. 162; 22 L. ed. 627) we decided that the Constitution of the United States has not conferred the right of suffrage upon any one, and that the United States have no voters of their own creation in the States. In United States v. Reese (92 U. S. 214; 23 L. ed. 563), just decided, we held that the Fifteenth Amendment has invested the citizens of the United States with a new constitutional right, which is, exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship; but that exemption from discrimination in

992 U. S. 214; 23 L. ed. 563.

10 92 U. S. 542; 23 L. ed. 588.

the exercise of that right on account of race, etc., is. The right to vote in the States comes from the States; but the right of exemption from the prohibited discrimination comes from the United States."

In a much later case, Pope v. Williams,11 the court again say: "The privilege to vote in any State is not given by the federal Constitution or by any of its Amendments."

In Neal v. Delaware, 12 a case decided but a little later, the court, however, point out that the effect of the Amendment by abolishing ipso facto all limitations in state laws and constitutions founded upon race, color, or previous condition of servitude, may in effect operate to qualify certain persons to vote who otherwise would not have the right. The opinion says: "Beyond all question the adoption of the Fifteenth Amendment had the effect, in law, to remove from the state constitution, or render inoperative, that provision which restricts the right of suffrage to the white There is, then, an excision or erasure of the word 'white' in the qualification of voters in this State; and the Constitution is now to be construed as if such word had never been there."

race.

Although, as appears from the foregoing, the right of determining the conditions upon which the suffrage is granted lies exclusively within the discretion of the several States, subject only to the limitation of the Fifteenth Amendment, it may happen that state suffrage laws may be rendered invalid because in violation of certain other general limitations laid upon the States. Thus, for example, a disfranchising law, operating as to particular individuals as a bill of attainder, or as an ex post facto law, or as tending to destroy a republican form of government in the State, or as favoring the citizens of certain States above those of other States would probably be held void.

In Pope v. Williams13 the court say: "It is unnecessary in this case to assert that under no conceivable state of facts could a state statute in regard to voting be regarded as an infringement

11 193 U. S. 621; 24 Sup. Ct. Rep. 573; 48 L. ed. 817.

12 103 U. S. 370; 26 L. ed. 567.

13 193 U. S. 621; 24 Sup. Ct. Rep. 573; 48 L. ed. 817.

upon, or a discrimination against, the individual rights of a citizen of the United States removing into the State, and excluded from voting therein by state legislation. The question might arise if an exclusion from the privilege of voting were founded upon the particular State from which the person came, excluding from that privilege, for instance, a citizen of the United States coming from Georgia and allowing it to a citizen of the United States coming from New York or any other State. In such case an argument might be urged that, under the Fourteenth Amendment of the federal Constitution, the citizen from Georgia was, by the state statute, deprived of the equal protection of the laws. Other extreme cases might be suggested.”

In this case the court held valid a state law requiring persons coming into the State to make a declaration of their intention of becoming citizens and residents of the State before they could claim the right to be registered as voters. The court say: "The statute, so far as it provides conditions precedent to the exercise of the elective franchise within the State, by persons coming therein to reside is neither an unlawful discrimination against any one in the situation of the plaintiff in error nor does it deny to him the equal protection of the laws, nor is it repugnant to any fundamental or inalienable rights of citizens of the United States, or a violation of any implied guaranties of the federal Constitution."

§ 239. Though Determined by State Law, the Right to Vote for Representatives is a Federal Right.

A distinction is to be made between the right to vote for a Representative to Congress and the conditions upon which that right is granted. In the preceding section it has been shown that the right to vote is conditioned upon and determined by state law. But the right itself, as thus determined, is a federal right. That is to say, the right springs from the provision of the federal Constitution that Representatives shall be elected by those who have the right in each State to vote for the members of the most numerous branch of the state legislature. The Constitution thus

« PředchozíPokračovat »