Four States had neglected to comply with the recent act of Congress reapportioning representation, having elected their twenty-one members by general ticket.  The language of the statute was explicit:  “In every case where a State is entitled to more than one Representative, the number to which each State shall be entitled under this apportionment shall be elected by districts composed of contiguous territory equal in number to the number of Representatives, to which said State may be entitled, no one district electing more than one Representative."[170] Now all but two of these twenty-one Representatives were Democrats.  Would a Democratic majority punish this flagrant transgression of Federal law by unseating the offenders?

In self-respect the Democratic members of the House could not do less than appoint a committee to investigate whether the representatives in question had been elected “in conformity to the Constitution and the law."[171] Thereupon it devolved upon the six Democratic members of this committee of nine to construct a theory, by which they might seat their party associates under cover of legality.  Not that they held any such explicit mandate from the party, nor that they deliberately went to work to pervert the law; they were simply under psychological pressure from which only men of the severest impartiality could free themselves.  The work of drafting the majority report (it was a foregone conclusion that the committee would divide), fell to Douglas.  It pronounced the law of 1842 “not a law made in pursuance of the Constitution of the United States, and valid, operative, and binding upon the States.”  Accordingly, the representatives of the four States in question were entitled to their seats.

By what process of reasoning had Douglas reached this conclusion?  The report directed its criticism chiefly against the second section of the Act of 1842, which substituted the district for the general ticket in congressional elections.  The Constitution provides that “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.”  But by the law of 1842, contended the report, Congress had only partially exercised its power, and had attempted “to subvert the entire system of legislation adopted by the several States of the Union, and to compel them to conform to certain rules established by Congress for their government.”  Congress “may” make or alter such regulations, but “the right to change State laws or to enact others which shall suspend them, does not imply the right to compel the State legislatures to make such change or new enactments.”  Congress may exercise the privilege of making such regulations, only when the State legislatures refuse to act, or act in a way to subvert the Constitution.  If Congress acts at all in fixing times, places, and manner of elections, it must act exhaustively, leaving nothing for the State legislatures to do.  The Act of 1842 was general in its nature, and inoperative without State legislation.  The history of the Constitutional Convention of 1787 was cited to prove that it was generally understood that Congress would exercise this power only in a few specified cases.[172]