The People’s House
Expand the House by passing Madison’s Article the First —
Once again, Congress is mired in partisan gridlock. On the rare occasions a national consensus emerges- for example on , DREAMers (74%) or climate change(79%), Congress fails to act decisively. It’s hardly surprising more and more people are losing faith¹ in the democratic system.
Perhaps we can move forward by stepping back, and finally ratify Madison’s 234 year-old “Apportionment” amendment to dramatically expand the size of the House.
Why a larger House? Compared to the public they ostensibly represent, Congress is whiter², richer, older³ and overwhelmingly male. Our legislature is deadlocked, captured by a duopoly elevating party loyalty above pragmatic governance. By expanding the House into smaller, more sympathetic districts the promise of a representative democracy can be fulfilled.
Rural conservatives, obscured in the shadow of a more populous liberal city, will finally elect one of their own. Progressives, by winning new urban seats, envisage transforming the old white male club. Independents, appealing to hyper-local voters disgusted with mainstream politics, will be elected outside the two-party bubble.
An expanded House, with newly elected independents and no fixed majority, is ripe to broker compromise legislation. And bring change to Capitol Hill.
So, who controls the number of legislators?
Article I Section 2 of the Constitution offers little guidance — bracketing a minimum of one per state with a maximum of one per thirty thousand persons, i.e. between 50 and 11,000 members! Nor does Article I mandate specific election policies- for example, defining the number of legislators per district, or how frequently districts are reapportioned⁴. Instead, nearly all details, including size, are statutory.
After growing in sync with population, the House has stagnated at 435 members since 1911. Each legislator represents, on average, 761,000 people, much higher than any parliament in the OECD.
The issue of House size bedeviled the founding fathers. As Pulitzer Prize winning historian Jack Rakove⁵ notes:
“Such a body should not be so small as to permit a corruption founded on conspiratorial intimacy, or what Madison called in Federalist 10 “the cabals of a few.” On the other hand, too large a body would prove “disjointed, unwieldy and incompetent,” as the “Federal Farmer” conceded, and too prone, Madison thought, to “the confusion of a multitude.”
A multitude demanding to be heard. In the closing minutes of the Constitutional Convention, George Washington insisted⁶ on paring down Article I’s “forty thousand persons” district limit to a smaller “thirty”.
Amidst heated state ratification debates, expanding the House was the number one or two concern⁵.
“Apportionment” remained so unsettled it joined “freedom of speech and “due process” in the twelve proposed amendments Congress forwarded to the states for consideration in 1789. The final ten were quickly adopted as our Bill of Rights. But two of the original amendments- House Apportionment and Congressional Pay- languished without a definitive up or down vote.
In 1992 the Pay Amendment, riding a tidal wave⁷ of anger at Washington over self-dealing and excessive compensation, was incorporated as our 27th amendment. Apparently, the dead, after 203 years, can rise again.
So, what about the Apportionment Amendment, which was ratified by ten states and remains “live” constitutionally?
The amendment reads:
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.
To be honest, the Apportionment Amendment is awkwardly composed and difficult to parse. The legislative history of its evolution is murky. It contains a mathematical inconsistency when the population reaches 8 million. But the amendment placated Anti-federalist concerns by mandating a larger House minimum (albeit with a broad cap as the nation grew).
Although a cursory reading of the amendment implies today’s House is bracketed between 200 and 6,600 members, the proper interpretation is an iterative rule constraining the “multitudes” within a minimum district size that rises with population. That is, Madison anticipated the fifty thousand cap would be succeeded by sixty, then seventy and so on as the country grew.
As the great Constitutional scholar David Kyvig noted⁸ in 2016:
Historians (myself included) and political scientists… have misunderstood and overlooked Madison’s unratified first amendment, some assuming incorrectly that it would have fixed congressional districts at 50,000 inhabitants. .. In reality, Madison’s formula was far more modest. … in response to the 2010 census, the formula would have raised the size of districts to 190,000, instead of the average size of 710,767, and the House would have had 1,625 members, in place of the current 435-seat limit.
This interpretation is quite reasonable. Note the close resemblance to the 1780 Massachusetts Constitution apportionment article:
Chapter I Section 3 Art. II. And in order to provide for a representation of the citizens of this commonwealth, founded upon the principle of equality, every corporate town containing one hundred and fifty ratable polls, may elect one representative; every corporate town containing three hundred and seventy-five ratable polls, may elect two representatives; every corporate town containing six hundred ratable polls, may elect three representatives; and proceeding in that manner, making two hundred and twenty-five ratable polls the mean increasing number for every additional representative.
Provided, nevertheless, That each town now incorporated, not having one hundred and fifty ratable polls, may elect one representative; but no place shall hereafter be incorporated with the privilege of electing a representative, unless there are within the same one hundred and fifty ratable polls.
Currently, Madison’s amendment implies a House of 1722 representatives.
1722 is a very sizable deliberative body. Quadrupling today’s House and more than twice as large as the EU⁹ or German¹⁰ parliaments. The assembly would scramble, at first, to manage this many diverse voices, but people are clever, and will invent mechanisms to self-organize and delegate responsibly. Fluid alliances will form and wane, along with two-party control. After a few decades, the House will look like America, warts, and all.
Is delayed ratification legal? Some people claim, in light of Coleman v. Miller (1939), that Congress has the political authority to retroactively impose a time limit on ratification of the Apportionment Amendment. But the only constitutionally unambiguous resolution is a clean up or down vote by each state legislature- especially since expanding the size of the House might be viewed as threatening incumbents, and good-government demands they recuse themselves from debate.
Alternatively¹¹, Congress might pre-empt the amendment’s ratification via statute, perhaps doubling House membership over time and providing more clarity on gerrymandering, winner-take-all and the Electoral College.
Until then, it’s time for the People to dust off the welcome mat to their House and urge their state legislatures to pass Madison’s 234 year-young Apportionment Amendment.
TL;DR Or see this this discussion on genuineideas for more details behind the math.
[1] Particularly among the young.
[2] Via Congressional Research Reports. Improving according to PEW but still lagging according to VOX “About 78 percent of Congress is white, versus 61 percent of the overall population. The overall gap has widened over time.”
[3] FAS and PEW Research. Average age in House is 57.6, average age of Americans older than 25 (when you can serve in Congress) calculated as 50.7 from the Census
[4] Noted as early as 1789 in the Federal Farmer
[5] Rakove, Jack N.. Original Meanings (p. 235). Knopf Doubleday Publishing Group. Kindle Edition.
[6] Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction (circa p. 14). Yale University Press. Kindle Edition.
[7] Congressional quarterly weekly report, 1992–05–23, Vol.50 (21), p.1423 ISSN: 0010–591, or NYTimes
[8] David E. Kyvig, “Explicit and Authentic Acts”, Chapter 19, U.Press of Kansas. ISBN 978–0–7006–2229–0 (2016)
[10] and 598 in the Bundestag
[11] The 17th Amendment was reluctantly proposed by Congress in response to the threat of an Article V convention
