"when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a state or the members of the legislature thereof, is denied to any of the male inhabitants of such states, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such states"; and to the further provision that the right of citizens to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

Notwithstanding these provisions, a uniform manhood suffrage has not been adopted throughout the United States. In four states, women are admitted to the suffrage; in others tax, educational, property, and other qualifications are imposed; and in several states we have the peculiar anomaly of foreigners, who have announced their intention of becoming citizens, being permitted to vote for state and even national officers.1

The various restrictions operate in such a manner as to exclude thousands of adult male citizens, and they are by no means confined to the South. Massachusetts with an educational test, or Pennsylvania with a tax qualification, is legally quite as liable to a reduction of representation as any southern state with a "grandfather" clause in its constitution. Nevertheless, no serious attempt has yet been made to secure an enforcement of the Fourteenth Amendment. The Republican party, although pledged in the platforms of 1904 and 1908 to an execution of the constitutional provision in question and in control of all branches of the federal government, has deemed it inexpedient to carry out its campaign promises.?

1 See Readings, p. 143, and below, chap. xxii.

2 For the Republican platform of 1908, see Readings, pp. 107 ff. Undoubtedly there would be great difficulty in ascertaining the number of voters actually disfranchised by any qualifications.

The Supremacy of the Judiciary1

The crowning feature of the federal system is the supremacy of the judiciary over all other branches of government in matters relating to the rights of persons and property. In no other nation, federal or centralized in form of government, is the high authority of declaring null and void the acts of other departments conferred upon a judicial tribunal. This judicial supremacy, says Professor Burgess, is "the most momentous product of modern political science. Upon it far more than upon anything else depends the permanent existence of republican government; for elective government must be party government - majority government; and unless the domain of individual liberty is protected by an independent, unpolitical department, such government degenerates into party absolutism and then into Cæsarism." 2

It is the Supreme Court, therefore, that stands as the great defender of private property against the attempts of popular legislatures to enroach upon its fundamental privileges. This fact has been so clearly and cogently demonstrated by President Hadley that his statements deserve quotation at length. The theoretical position of property-holders, he says, "the sum of the conditions which affect their standing for the long future and not for the immediate present is far stronger in the United States [than in other countries]. The general status of the property-owner under the law cannot be changed by the action of the legislature, or the executive, or the people of a state voting at the polls, or all three put together. It cannot be changed without either a consensus of opinion among the judges, which should lead them to retrace their old views, or an amendment of the Constitution of the United States by the slow and cumbersome machinery provided for that purpose, or, last, — and I hope most improbable, a revolution.

"When it is said, as it commonly is, that the fundamental division of powers in the modern State is into legislative, executive, and judicial, the student of American institutions may fairly note an exception. The fundamental division of powers in the

Constitution of the United States is between voters on the one hand and property-owners on the other. The forces of democracy on one side, divided between the executive and the legislature, are set over against the forces of property on the other side, with the judiciary as arbiter between them; the Constitution itself not only forbidding the legislature and executive to trench upon the rights of property, but compelling the judiciary to define and uphold those rights in a manner provided by the Constitution itself.

"This theory of American politics has not often been stated. But it has been universally acted upon. One reason why it has not been more frequently stated is that it has been acted upon so universally that no American of earlier generations ever thought it necessary to state it. It has had the most fundamental and far-reaching effects upon the policy of the country. To mention but one thing among many, it has allowed the experiment of universal suffrage to be tried under conditions essentially different from those which led to its ruin in Athens or in Rome. The voter was omnipotent within a limited area. He could make what laws he pleased, as long as those laws did not trench upon property right. He could elect what officers he pleased, as long as those officers did not try to do certain duties confided by the Constitution to the property-holders." 1

1 1 The Independent, April 16, 1908.

CHAPTER IX

THE NOMINATION AND ELECTION OF THE PRESIDENT

THE framers of the federal Constitution intended to remove the office of chief magistrate of the Republic as far as possible from the passions and interests of the masses, and accordingly they provided for his election by a small body of electors chosen as the legislatures of the several states might determine. The original design has been upset, however, by the rise of political parties. It is, therefore, necessary to preface a discussion of the legal provisions regarding the election of the President by a consideration of the extra-legal organization which selects the candidate for whom the electors of each party are morally bound to vote.

Preliminaries to the National Convention

The national convention assembles on a call issued by the national committee. A meeting of this committee is held usually five or six months before the time for making presidential nominations. At this preliminary meeting, summoned by the call of the chairman, the place at which the coming convention is to be held is selected after the representatives of various cities have presented their claims, and the date for the opening of the great party assembly is fixed. When the national committee has thus decided upon the place and date of the convention, it issues a call to the party members and supporters inviting them to choose delegates and alternates, so that the party conference may be a representative body.1

On the eve of the convention, the national committee assembles to complete preparations. At this session, the programme of proceedings is determined upon and the temporary roll of delegates is made up from the returns.

The national convention is composed of delegates from the

1

1 For Republican and Democratic "calls," see Readings, p. 161.

1

states and territories. Every commonwealth is allowed two delegates for each of its Senators and Representatives in the Congress of the United States. For example, New York has two Senators and thirty-seven Representatives - thirty-nine in all - and it is entitled to seventy-eight members in the national convention. The four delegates corresponding to the representation of the state in the United States Senate are known as delegates-at-large, and the others are called district delegates." In addition to the regular delegates, there is an equal number of alternates, chosen in the same manner, and authorized to serve in case the former are prevented from attending.

In prescribing the methods of electing delegates, the calls of the Democratic and Republican parties differ fundamentally. The former regards the state as the unit of representation, and leaves it entirely free to decide how the delegates shall be chosen. The Democratic delegates apportioned to any commonwealth, therefore, may be selected entirely by the state convention, or by a combination of district and state conventions. The Republican party, on the other hand, definitely stipulates that the delegates-at-large shall be chosen at the state convention and the other delegates at congressional district conventions. Special provisions are made for the territories, and for the states that prescribe nomination by direct primaries.5

It

The purpose of the national convention is threefold. formulates the principles of the party into a platform on which the appeal is made to the voters during the ensuing campaign.

1 The number of delegates assigned to the territories and dependencies varies from convention to convention. For example, the District of Columbia was allowed by the national committee four delegates in the Republican convention of 1904 and two in 1908.

2 It should be noted that according to this rule party strength is not represented at all. For example, in 1904, Mississippi, in which there were only 3168 Republican voters, sent 20 delegates to the Republican convention, and Michigan, with 216,651 Republican voters, sent only 22 delegates. This, of course, helps to prevent each party from becoming sectional in character. It is partially offset by the Democratic rule requiring a two-thirds vote to nominate. Below, p. 172.

3 That is, of course, where delegates are chosen by districts.

Readings, p. 168.

5 See Readings, p. 161, for details as to methods of electing delegates, and below, chap. xxx, for direct primaries.