The United State: A Constitutional Challenge
Proving the unconstitutionality of congressional districts and the necessity of a Statewide Proportional Open-List System.
3. The Federalist Papers
3.1 A Bird's Eye View
The Federalist Papers are a collection of 85 essays written by Alexander Hamilton, James Madison, and John Jay in 1787 and 1788 under the collective pseudonym Publius. They were written to explain and defend the newly drafted Constitution to the citizens of New York, whose ratification was considered critical to the Constitution's adoption. The Federalist Papers are widely regarded by courts and scholars as the most authoritative available guide to the Framers' original intent.
Of the 85 essays, ten - Nos. 52 through 61 - deal specifically and exclusively with the House of Representatives. They address the qualifications of its members, the frequency of elections, the size of the House, the character of its electors, and the power of Congress to regulate elections. Four of these ten papers are directly relevant to the argument presented in this document and are reproduced and analyzed in the sections that follow.
3.2 A Note on Terminology
Two terms used in the Federalist Papers require clarification before proceeding, as their meaning in the eighteenth century differs in important ways from their common usage today.
3.2.1 Electors
In the Federalist Papers, the term "Electors" does not refer to the Electoral College. It means voters - the citizens who cast ballots. In the eighteenth century this was the standard formal word for a person exercising the right of suffrage. When Madison writes in Federalist No. 52 that the qualifications of the Electors of the federal House of Representatives shall be the same as those of the Electors of the most numerous branch of the State Legislature, he is speaking of ordinary voters, not of any special body of appointed delegates.
This distinction matters for the argument that follows. Article I, Section 2 identifies exactly two constitutional groups in the election of the House of Representatives - the Electors, meaning the People of the State, and the Elected, meaning the Representatives of that State. The Constitution recognizes no third category. There are no "Electors of the Third District." That entity simply does not exist in the constitutional vocabulary.
3.2.2 Districts
When the authors of the Federalist Papers use the word "district" they are not describing the single-member geographic congressional districts mandated by federal law since 1967. In the 1780s the word "district" was used as a flexible term for any administrative subdivision of a state - an existing county, a group of towns, or a region sharing common economic interests. Many states at the time elected their representatives at-large, without any district structure at all. The modern congressional district - a precisely drawn, legally mandated, single-member geographic unit redrawn every ten years - is a fundamentally different creature from anything the Framers were describing when they used the word "district." This distinction is addressed further in the analysis of Federalist No. 57 below.
3.3 Federalist No. 52
"The first view to be taken of this part of the government relates to the qualifications of the electors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures... A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States."
- James Madison, Federalist No. 52, February 8, 1788
3.4 Federalist No. 56
"Divide the largest State into ten or twelve districts, and it will be found that there will be no peculiar local interest in either, that will not be within the knowledge of the representative of the district... and... the whole State might be competently represented by a single member taken from any part of it."
- James Madison, Federalist No. 56, February 19, 1788
3.5 Federalist No. 57
"Who are to be the electors of the Federal Representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the correspondent branch of the Legislature of the State."
- James Madison, Federalist No. 57, February 19, 1788
3.6 Federalist No. 59
"The natural order of the subject leads us to consider, in this place, that provision of the Constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. It is in these words: 'The Times, Places, and Manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter such Regulations, except as to the Places of choosing senators.' I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this."
- Alexander Hamilton, Federalist No. 59, February 22, 1788
Previous Section | Next Section