The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-04-10


OF it's pretersions TO pass laws at All.
j the Rump isa Congress, its proceedings on
the veto are regular in point OF iorm, although
the bill conflicts with the CONSTITUTION. Con-
press as well as the President, is entitled to its
own judgment on constitutional questions. The
light oil the two Houses tu repass bill Is Just
as ncontestable as that OF the President to inter.
pose his veto. Neither the reppssing OF the bill
nor its unconstitutionality, 1mpairs the legsla.
tive authority OF Congress. 1t is presumed by
the Constitution itself, that unconstitutional
laws may sometimes pass, and regular euedy
is provided in the authority OF The Supreme
genuine authority that will bear being thus
stretched to the utmost without danger Of
breaking.
The Composition OF Congress is prescribed in
the Constitution. The Constitution declares
that Congress shall consist OF Senate and a
House of Representatives. "Tbe Senate of The
United SAFES" we quote the language of the
instrument, " sldl consist of too Senators from
6uoh States Have we any such Senate? Are
there two Senators from each State?n There
Is a similar provision IN relation TO the House
OF Representatives; but as the same reasoning
viii, In the main, apply to both Houses, 1t will
suffice to discuss the legality OF one. We take
the Senate i'm preference, because that is the
branch which has already passed the Civil
Rights bill over the veto. It is clear on the
mere reading OF the words, that we have no
such Senate as is provided for in the Constitu-
tion OF The United states. We have no Senate
consisting OF two "Senaors from each State.n
A iull Senate consists OF seyentv-two members;
the hump Senate, even when all the seats are
filled, consists OF only nifty. .
1t may be said, and truly said, that the pre-
sence OF every member of the Senate is not
necessary to give validity TO its proceedings.
The Constitution itself provides that majority
Of the Senator'S shall iorm quorum. But the
same Constitution presumes that the absences
are voluntary. If State fails to elect, or its
Senators fail 10 attend, that Is quite different
thing from the exclusion OF States from their
Tpr mt Co nj fc fha Cpn ftfi
that every State may be represented that if
vacancy occurs in the recess OF State Leeisla-
ture, the Governor Is empowered TO make
temporary appointment until the Legislature
meets. The Constitution eXempts the members
Of both Houses from arrest during their attend
ance, ard in going and returning from Congress.
These provisions eYince the solicitude of the
Constitution that States shall be deprived OF
their TepTesI Dtation by nothing except sickness,
death, o. voluntary failure to eject
Turning TO another part of the Constitution,
We find that the mCst emphatic OF all its pro-
visions is a prohibition TO exclude States from
their representation In the, Senate. Every thing
else in the Constitution is open to alteration by
the amending power; this alone IS guarded from
change by the power which can make all other
changes. mo State without its consent, shall
be deprived oil its equal suffrage in the Senate.n
1t is absurd to say that Congress may do, at its
own discretion or caprice, what not even the
amending power may ever dare attempt.
Let us ,uppose that three-lourths OF the States
tuition has, in this one particular, hemmed in
tile amending power, and should go through the
form OF reducing the Senate from seventy-two
members to fifty, bv deprlying the twenty-five
smallest States of one Senator each without
Their consent. Would Senate thus constituted
be legal body? Would laws passed by it have
any binding obligation? Assuredly not. It
would be az clear case of reUOlutjon as il is
possible to suppose. What the remedy would
be, is another and more difficult question. But
there can be no doubt at all that such a pre-
tended amendment, II acted on in the organiza-
ton OF the Senate, would overthrow the Consti-
tuition. But if not even the amending power
can take away half OF the representa- on OF a
State in the Senate, how can il be supposed that
Congress, the mere creature of the Constitution,
can take away the whole of it? ,.,,e.,frr..
Admit that the eleven excluded members of the
Union are States, and their right TO representa-
ton is legally irresistible. They hold it directly
from the Constitution. Unless Congress has
power TO put States out OF the Union, when they
are once in it, their claim to their seats cannot
be successfully controverted. Even il Congress
possessed this power, the States would retain
their Federal rights until the power had been
duly exercised. II requires a regular law, ap-
proved by the President or passed over his veto,
10 admit State; and it would require the same
to eXpel one, If expulsion we're constitutionally
possible. Hamilton wrote lin 1902 1.-THE
creation OF a new State has been very peril
nenty mentioned as a decisive instance of power
in legislature to do thing, which, being done,
State out OF the Onion, it is impossible to diyest
it OF its right to representation. Being State,
it is entitled to the two Senators OF which
noteVen The amending power can deprive it with
out its consent
Congress was a valid legislature during the
war, because, although the same States were
unrepresented, it was by their own choice.
They sent no members TO either House. If any
OF the Rebel States had sent representatives,
they would have been properly excluded, on
perfectly Ineligible grounds. If they brought
no credentials, the Houses in which they
claimed seats could have bestowed on them no
notice. II they brought credentials, it would
have beeu the duty OF the two Houses to exa.
mine them. Suppose the applicant to have been
Senator: the Senate would necessarily have
rejected him on the ground that the pretended
legislature, by which he CLAIMED to have been
elected, had not sworn to support the Constitu.
ton OF the United States-a qualification without
which no department of the Federal Government
could recognize il as a legislature at all. A Re-
preventative from any OF those States would
have been rejected on grounds equally clear and
sufficient. But no such objection can be raised
against thepresent applicants; and If it could
it ls point to be determined by investigation
oftbeir credentials. .aI... +. II. . ~.
The veto power, as Hamilton remarked, il
given to the President as check on legislative
encroaChment. The distribution of powers in
the Constitution, he said, was intended etc
establish between them such mutual relations
OF authority as will make one q check upoI
another and enable them reciprocally to resis
encroachments, and contine one another within
their proper spheres.n This end he said, is Gl
| one Iespect) accomplished ,by the qualified
| negative OF the Executive on acts of the TIVE
. Houses of Congress. The authors of the Fede
| rdlist took great pains to prove mo. 49) tina
| ''it is against the enterprising ambition of tn
| legislative department that the people ought t,
indulge all their jealousy, and exhaust all thei
precautions" .... .... ....
The check on Congress provided in the vett
| is nulhfed and abolished by the exclusion O
seven States. Had those States been repre-
| sented their Senators would have voted to sus