Congressional Apportionment Amendment: Difference between revisions

On September 25, 1789, the 1st Congress approved twelve amendments to the United States Constitution and submitted them to the state legislatures for ratification. This list of twelve proposed amendments is known as the United States Bill of Rights, though that name is also applied only to the ten amendments that were approved by the states. Article One of this slate of proposed amendments was never ratified and remains a proposed amendment to the United States Constitution. Its purpose was to regulate the size of congressional districts for representation in the House of Representatives

On January 28, 1790, the Delaware General Assembly ratified eleven of the articles of amendment, rejecting only Article One, the apportionment amendment. As a result, it remained one ratification short when Articles Three through Twelve were certified two years later as being part of the Constitution, becoming amendments One–Ten and known collectively as the Bill of Rights. It remained one state short of the required three-quarters plateau for most of the period between 1791 and 1803, after which it fell further behind as more and more states entered the Union. As Congress did not set a time limit for its ratification, the Congressional Apportionment Amendment is still technically pending before the states. Currently, ratification by an additional 27 states would be necessary for this amendment to be adopted.

During the 1790s, the second Bill of Rights article, concerning compensation of members of Congress, also fell short of the number of ratifications needed to become part of the Constitution, having been ratified by only seven states. However, even though it too fell further behind with the establishment of more and more states, there was a revival of interest in Article Two during the 1980s and in 1992, after an unprecedented period of 202 years, 225 days, it crossed the Constitutional threshold for ratification, becoming the Twenty-seventh Amendment.

Text

After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Background

Placed first among the twelve articles of amendment to the Constitution sent to the states for ratification by the 1st United States Congress, this unratified amendment would modify Article I, Section 2, Clause 3 of the Constitution and would have an impact on the apportionment of House seats among the states. It was designed to ensure that members of the House would continue to represent small constituencies even as the general population grew. Opponents of the 1787 Constitution's ratification noted that no such guarantee existed in it, and they feared that over time, if the size remained relatively small and the districts became more expansive, that only well known individuals with reputations spanning wide geographic areas could secure election. It was also feared that those in Congress would, as a result, have an insufficient sense of sympathy with and connectedness to ordinary people in their district.

The Anti-Federalists' concern with the size of the House of Representatives was evident in the state ratifying conventions, where several states specifically requested an amendment to secure a minimum size for the House of Representatives. Virginia's ratification resolution proposed,

That there shall be one representative for every thirty thousand, according to the Enumeration or Census mentioned in the Constitution, until the whole number of representatives amounts to two hundred; after which that number shall be continued or encreased [sic] as the Congress shall direct, upon the principles fixed by the Constitution by apportioning the Representatives of each State to some greater number of people from time to time as population encreases [sic].

Anti-Federalist Melancton Smith declared at the New York ratifying convention that,

We certainly ought to fix, in the Constitution, those things which are essential to liberty. If anything falls under this description, it is the number of the legislature.

Supporters of the new Constitution managed to disarm those opposing its ratification by agreeing that the new government should immediately address Anti-Federalist concerns and consider amending the Constitution. The assurance that these issues would be addressed in the First Congress was essential to the ratification of the new form of government.

Legislative and ratification history

The proposed amendment to the Constitution's apportionment of representatives clause was introduced first in the House on June 8, 1789, by Representative James Madison of Virginia. One of a series of proposed Constitutional amendments, it was referred to a committee consisting of one representative from each State. After emerging from committee, the full House debated the issue and on August 24, 1789 passed it and sixteen other articles of amendment. The proposals went next to the Senate, where 26 substantive alterations were made. On September 9, 1789, the Senate approved a culled and consolidated package of twelve articles of amendment. Changed in this amendment was the apportionment formula to be followed once the number of House members reached 100.

A comparison of the two versions of the amendment (The substitute Senate language and the affected House language are both in red.)

House version – August 24, 1789: After the first enumeration, required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor less than one Representative for every fifty thousand persons.

Senate version – September 9, 1789: After the first enumeration, required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred; to which number one Representative shall be added for every subsequent increase of forty thousand, until the Representatives shall amount to two hundred, to which number one Representative shall be added for every subsequent increase of sixty thousand persons.

On September 21, 1789, a House–Senate Conference Committee convened to resolve the numerous differences between the two Bill of Rights proposals. On September 24, 1789, the committee issued its report, which finalized 12 Constitutional Amendments for House and Senate to consider. Regarding the apportionment amendment, the House passed version prevailed with one change, the word "less" was changed to "more" in the second to last line. On September 24, 1789 the House resolved to change the last instance of the word "less" to "more".. The next day the Senate concurred in the amendments as resolved by the House.

Having been approved by Congress the twelve Bill of Rights amendments were sent to the states for ratification. This one was ratified by the legislatures of the following states:

1. New Jersey — November 20, 1789
2. Maryland — December 19, 1789
3. North Carolina — December 22, 1789
4. South Carolina — January 19, 1790
5. New Hampshire — January 25, 1790
6. New York — February 24, 1790
7. Rhode Island — June 7, 1790
8. Pennsylvania — September 21, 1791 (after rejecting it on March 10, 1790)
9. Vermont — November 3, 1791
10. Virginia — December 15, 1791
11. Kentucky — June 24, 1792

At the time it was sent to the states for ratification, an affirmative vote by ten states would have made this amendment operational. That number rose to eleven on March 4, 1791, when Vermont joined the Union. By the end of 1791, the amendment was only one state short of the mark. However, when Kentucky attained statehood on June 1, 1792, the number climbed to twelve, and, even though Kentucky ratified the amendment that summer (along with the other eleven amendments), it was still one state short. No additional states ratified this amendment since. To become part of the Constitution today, ratification by 38 states (an additional 27) would be required.

Potential effect of amendment

Under the terms of the proposed amendment, were the U.S. population to have been below 3 million, each state would have had one Representative in the United States House of Representatives for every 30,000 persons.

Were the U.S. population to have reached 3 million with the amendment in force, the total number of Representatives would have been recalculated. To reach the minimum of 100 representatives, Congress would initially have had to keep the district size at 30,000 per representative.

As the population would have approached 8 million, Congress could have gradually increased the size of districts from 30,000 to 40,000 and still meet the minimum of 100 representatives. This would have been allowed by the amendment, as it says "...there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; ...".

However, even at a district size of 40,000, the number of representatives would inevitably have grown to 200 when the population would have reached 8 million, thus triggering the final clause. It would have been impossible to satisfy with a population between 8 and 10 million, as it says "...there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons". For a population of 8 million, a district size of one per at least 50,000 yields at most 160 representatives, below the minimum of 200.

The final clause's conditions would have been satisfied only by a population size of 10 million or above. The clause stipulates a minimum district size of 50,000, and at that minimum size, a population of 10 million would have yielded the minimum of 200 representatives. As the final clause only stipulates a minimum district size, it would thereafter have allowed for any number of representatives between 200 and the current population divided by 50,000. At the approximate current U.S. population of 310,000,000, this would yield a House of Representatives with 200 to 6,200 members, depending on the district size. By changing the one instance of the word "less" to "more" the Conference Committee added much confusion to the amendment's effect. If taken literally, the change would return the control of representation to the House itself (under Art. I§2.3) as opposed to automatically increasing membership as total population increased.

Currently, there are 435 members of the House of Representatives and six non-voting Delegates from the District of Columbia and the territories, which do not possess statehood status. The figure of 435 is set by statute (2 U.S.C. 2a & 2b) and the allocation of seats among the 50 states is calculated by using "method of equal proportions". The present statutes would comply with the article's final language so long as there are at least 50,000 people in each Congressional district; as apportioned after the 2010 census, even the smallest district (the lone district of Wyoming) far exceeds this number. Therefore, ratification of this article today would have no impact on the present Congressional apportionment process, though it could impact future changes to the process.

See also

• List of amendments to the United States Constitution
• List of proposed amendments to the United States Constitution
• Fourteenth Amendment, Section 2 –Apportionment of representation in House of Representatives
• United States congressional apportionment
• Apportionment Act of 1792
• Apportionment Act of 1911
• Reapportionment Act of 1929