Return the House of Representatives to the People |
thirty-thousand.org |
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Section II
Trying to Correct the Omission
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In order to obtain ratification from the States, the Constitution’s proponents promised that the first Congress would propose a set of amendments to address the principal objections identified during the ratification debates, including those regarding the size of the House (Section I).
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Ratification of the Constitution by the states was therefore premised upon these two expectations:
- House districts would be equally sized (i.e., derived from a common divisor); and,
- Their size would remain near the Constitutional minimum of 30,000.
So essential was this expectation that the very first amendment ever proposed by Congress was intended to formally constitutionalize these principles.
The story of this amendment, and why it failed to be ratified, begins with the effective sabotage — either inadvertant or deliberate — of the House’s bill by a Senate committee in September of 1789. A clever defect was inserted into the amendment that evidently was not generally understood at first, but ultimately had the effect of completely annulling its original purpose. This story is told below. |
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“No invasions of the Constitution are fundamentally so dangerous as the tricks played on [Congress’] numbers, apportionment, and other circumstances respecting themselves....”
Thomas Jefferson, 1792
[virginia.edu]
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| CONTENTS |
In This Section:
A. The Other First Amendment
So great was the significance of this issue in the ratification debates that the very first amendment ever proposed by Congress was specifically intended to prevent the problem of oversized and unequal House districts.
B. President Washington’s Veto
President Washington objected that “there is no one proportion or divisor which, applied to the respective numbers of the States will yield the number and allotment of representatives proposed by the Bill.”
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A. The Other First Amendment
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1) Twelve Amendments for the Bill of Rights
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On September 25, 1789, the First Congress of the United States proposed twelve amendments (or “articles”) for what would become known as the Bill of Rights. These amendments were intended to address the arguments that had most frequently been advanced against the Constitution. More importantly, these amendments had been promised — by the Constitution’s proponents — in return for the states’ ratifications.
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Of these twelve, the first two were not ratified into our Bill of Rights. However, articles three through twelve were ratified by three-fourths of the state legislatures, thereby becoming the first ten amendments of our Constitution (the Bill of Rights).
It was only the first two (of the original twelve amendments) that were not ratified into the Bill of Rights. These are as follows:
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“Article the first...” was drafted by the House to establish a formulation for determining the minimum size of the House.
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“Article the second...” would limit the ability of the Representatives to increase their compensation.
Interestingly, “Article the second...” was eventually ratified over two hundred years after it was originally proposed (as the 27th amendment). In other words, it took over two centuries to ratify an amendment which simply places a minimal restriction on the ability of Congress to vote itself a pay raise.
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2) Article the first...
So great was the significance of this issue in the ratification debates that the very first of these twelve amendments was specifically intended to prevent the problem of oversized and unequal House districts.
The story of this amendment, and why it failed to be ratified, begins with the apparent sabotage of the House version (of the amendment) by a Senate committee in September of 1789. A defect was introduced into the amendment that, though not fully appreciated at first, ultimately had the effect of annulling its original purpose. This fascinating story is told in The History of the First — and Now Forgotten — First Amendment.
In addition, a mathematical analysis of both versions of this amendment is provided in Analysis of “Article the first”. This analysis illustrates the internal contradiction inserted into the House bill that made it defective. |
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B. President Washington’s Veto
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On April 5, 1792, President Washington vetoed an apportionment bill entitled: “An Act for an apportionment of Representatives among the several States according to the first enumeration.” He vetoed the amendment on Constitutional grounds and — given that he presided over the Constitutional Convention — President Washington’s opinions on this subject bear great relevance. (For more information on this historic veto, read The First Presidential Veto.)
This veto occurred 2½ years after the first Congress proposed the twelve amendments for the Bill of Rights. Given his considerable aptitude for math, George Washington would have certainly understood the mathematical defect contained in the proposed first amendment, and therefore realized it was unlikely ever to be ratified. Perhaps he saw his veto — the very first Presidential veto — as an opportunity to establish an important precedent.
His primary objection to the proposed amendment was that “there is no one proportion or divisor which, applied to the respective numbers of the States will yield the number and allotment of representatives proposed by the Bill.” In other words, the House districts were too dissimilar with respect to size. Today this very same test is understood as the fundamental requirement for meeting the one person, one vote rule.
As is shown in Section IV of this web pamphlet, the current House apportionment scheme (the fixed allocation of 435 seats) does not pass the test established by President Washington and is an egregious violation of the one person, one vote rule. There is “no one proportion or divisor” which would yield the current allotment of representatives.
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“In the next place I wish to see that part of the constitution revised which declares, that the number of representatives shall not exceed the proportion of one for every thirty thousand persons, and allows one representative to every state which rates below that proportion. If we attend to the discussion of this subject, which has taken place in the state conventions, and even in the opinion of the friends to the constitution, an alteration here is proper. It is the sense of the people of America, that the number of representatives ought to be increased, but particularly that it should not be left in the discretion of the government to diminish them, below that proportion which certainly is in the power of the legislature as the constitution now stands; and they may, as the population of the country increases, increase the house of representatives to a very unwieldy degree. I confess I always thought this part of the constitution defective, though not dangerous; and that it ought to be particularly attended to whenever congress should go into the consideration of amendments.”
— James Madison’s Speech to House of Representatives Proposing Bill of Rights June 8, 1789
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“If a nation expects to be ignorant and free ...
it expects what never was and never will be.”
– Thomas Jefferson
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Created on: 13July2004 |
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