The New York herald., 1877-01-22
Constitutiona ality OF the PROPOSED
Electoral Tribunal.

against its constitutionality, the fairness of
the plan being generally conceded and only
petty objections made to the composition Of
the tribunal Nobody disputes that the
plan. if adopted by Congress, will be eff
icient, nor that it will lead to a peaceful
decision of the controversy. 1t has so many
advantages and meets with so much popular
favor that unless it can be proved repugnant
to the constitution partisan opposition will
be futile. The question Of constitutionality
must. indeed, be decided by argument;
but there Is an antecedent presumption in
its favor, prior to all argument, in the fact
that the eminent constitutional lawyers who
served on the joint committee have no
doubt on the subject Messrs. Edmunds.
the five ablest lawyers in the two houses,
and one of them, Senator Edmunds, has
already presented an argument for the plan
which none Of its advcrsaries will be able
to refute Moreover. the joint committee
have good reason to believe that five judges
Of the Supreme Court will act with
the commission. which they, Of course,
would not consent TO do If they
thought it unconstitutional. With such
On imposing weight Of legal ability
indorsing it the confidence Of the peo-
pie will not easily be shaken by q partisan
hue and cry that the plan is unconstitu-
tional Besides, judicious men will say
that heated partisans can have no real
confidence in the strength of their case if
they are unwilling to intrust it's decision to
tribunal SO fair. honorable, impartial and
competent as the one proposed.
The arguments against its constitution
ality are Of the fimsiest texture The one
most dwelt on is the alleged purpose
of the constitution TO exclude Con-
gress entirely from questions connected
with Presidential election. The
only thing in the constitution which
can be pressed into the service of this as
sumption is the disqualification of members
of Congress to serve as Presidential cleo
tors. But the constitution itself refutes the
inference sought to be drawn from this fact
The constitution does explicitly, not merely
permit, but require Congress to perform
important duties in connection with the
Presidential elections. 1t is Congress which
prescribes the day when the Presiden-
tial electors shall be appointed; the day on
which they shall cast their votes; the man
ner in which the certificates shall be pre-
pared. authenticated and transmitted; the
day on which they shall be opened
and counted. 1t is Congress which
directs what officer Of the government
shall have custody Of the returns if no
President of the Senate is in Washington on
the arrival of the messengers which pro-
vides for making out the certificates in trip
licate and directs what shall be done with
each Of the three which brings the judiciary
into the proceedings by making United
States judge in each State the custodian of
one; which directs the President of the
Senate to procure this third certificate from
the Judge by special messenger if neither
of the others reach him by certain date.
1t is clear, from these laws, that, instead Of
having nothing to do, Congress has
great deal to do with the electoral
votes after they are cast. 1t prescribes every
arrangement relating to them up to the time
they are opened to be counted. 1t gives di-
rections to the States as to when the electors
shall be appointed and the colleges meet
1t gives directions to the colleges as to the
manner Of discharging their trust; gives
directions to the federal judges and to the
President of the Senate, laying duties on
both which nobody ever doubted that the
constitution permits. The paramount su-
Al - 1
ways been in the hands of Congress. So un-
true is it that Congress has nothing to do
with the subject.
Does Congress, after experimenting every
stage Of the process by mandatory require
ments up to the opening of the votes, then
trary, the constitution explicitly requires
the presence Of both houses when the votes
are counted. Their duties extend contin-
gently even beyond the close Of the count
ing, for if it shall appear that no candidates
have received majority Of the votes the
House proceeds at once to elect the Presi-
dent and the Senate the Vice President.
These simple statements show how utterly
absurd is the pretence that the constitution
excludes Congress from any participation
in the Presidential election by forbid
ding the choice Of it's members as
electors. The very fact that they
have so much to do in a experimenting
capacity, in judicial capacity, and finally
in electing both officers when there is no
choice by the people, would Of itself be a
good reason for excluding them from the
Electoral colleges on the same principle that
judges are not permitted to practise as law
themselves in lower courts. II the consti-
tuition allowed it members of Congress would
be as prominent in the Electoral colleges as
they are in the party national conventions.