Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-04-14
WHAT is A CONGRESS:


Taking as text the opinion expressed in
No. As If the Federdlist-that great COM
pend of political wisdom hequeathed to
their countrymen by HAMILTON, MADISON
and JAY-that ''it is against the enterpris-
ing ambition of the legislative department
that the people ought to indulge all their
jealousy, and exhaust all their precautions"
and further bearing in mind the fact that at
the present time it is the veto of the Presi-
dent on which the people are compelled
chiefly to rely to restrain hisdangerous am
bition, the following extract from the New
York World, discussing the constitutional
validity of the acts of the Senate now
sitting at Washington, is well deserving of
attention:
The composition of Congress is prescribed
in the Constitution. The Constitution de-
clares that Congress shall consist of a Senate
and House of Representatives. The Sen
ate Of the United States" We quote the lam
guage Of the instrument, shall consist of
tUo Senators from each State" Have we any
such Senate? Are there "two Senators from
each State ?" There is a similar provision
in relation to the House of Representatives;
but as the same reasoning will, in the main,
apply to both Houses, it will suffice to dis
cuss the legality of one. We take the Sem
ate in preference, because that is the branch
which has already passed the Civil Rights
bill over the veto. 1t is clear, on the mere
reading of the words, that we have no such
Senate as is provided for in the Constitution
of the United States. We have no Senate
consisting of "two Senators from each
State" A full Senate consists of seventy
two members; the Rump Senate, even when
all the seats are filled, consists of only fifty
1t may be said, and truly said, that the
presence of every member of the Senate is
not necessary to give validity to its proceed
ings. The Constitution itself provides that
a majority of the Senators shall form quo
rum. But the same Constitution preSllnieS that
the absences are voluntary. If a State fails to
elect, or its Senators fail to attend, that is
quite different thing from the exclusion of
States from their representation. So careful |
is the Constitution that every State may be
represented, that if vacancy occurs in the |
recess Of a State Legislature the Governor |
is empowered to make temporary appoint |
ment until the Legislature meets. The Con- |
stitution exempts the members of both |
Houses from arrest during their attendance, |
and in going and returning from Congress. |
These provisions evince the sOlicitude of |
the Constitution that States shall be depriv- |
ed of their representation by nothing except |
sickness, death, or voluntary failure to |
elect
Turning to another part of the Constitu- |
ton, We find that the most emphatic Of all its |
provisions as 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. No |
State WITHOUT ITS CONSENT, shall be deprived
of It's equal suffrage in the Senate" 1t is alb
surd to say that Congress may do, at its own
discretion or caprice what not even the
amending power may ever dare attempt.
Let us suppose that three-fonrths of the
States should overstep the limits by which
the Constitution has, in this one particular,
hemmed in tie amending power, and should
go through the form of reducing the Senate
from seventy-two members to fifty, by de-
priving the twenty-five smallest States of one
Senator each, without their consent. Would
a Senate thus constituted be a legal body?
Would laws passed by it have any binding i
obligation? Assuredly not. Itwould be as
clear case of revolution as it 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 pre-
tended amendment, if acted on in the Or
ganization of the Senate, would overthrow
the Constitution. But if not even the
amending power can take away half of the
representation of State in the Senate how
can it be supposed that Congress, the mere
creature of the Constitution, can take away
the whole of it?
Admit that the eleven excluded members
of the Union are States, and their right to
representation is legally irresistible. They
hold it directly from the Constitution. I'm
less 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 if Congress possessed
this power, the States would retain their
Federal rights until the power had been du-
ly exercised. 1t requires regular law, APP
proved by the President or passed over his
veto, to admit State; and it would require
the same to erpeL one, if expulsion were con-
stitutionally possible. Hamilton wrote lin
1902: "The creation of new State has
been very pertinently mentioned as deci-
sive instance Of power in legislature to do
a thing, which, being done, is irrevocable."
1t being impossible TO put State out Of the
Union, it is impossible to divest it Of its
right to representation. Being a State, it is
entitled to the two Senators of which not
even the amending power can deprive it
without its consent.