DANIEL VAUGHAN: The Lost Constitutional Amendment

December 28, 2018

In 1789, after the states had ratified the Constitution, the nation’s founders and their new Congress set about adding the first amendments to it. They proposed the addition of 13 articles, 10 of which — 3 through 13 — were passed, ratified, and became what we now know as the Bill of Rights.

The original Constitution set no limit on how long states had to ratify an amendment, and it was another 203 years before the states ratified the second article proposed by the Founding Fathers. First pitched by Benjamin Franklin, what we now know as the 27th Amendment was ratified in 1992, preventing Congress from giving itself a raise in its current term. (The idea is to prevent people from going into politics to make money.)

But there’s one more amendment that has been lost to the sands of time: the Congressional Apportionment Amendment (CAA), also known as Article the First, was proposed in 1789, but never ratified by all the states. Like the 27th Amendment, there’s no time limit barring this article from being ratified; there’s nothing stopping us from fulfilling the Founders’ vision of their original 13 amendments.

The CAA addresses how many members of the House of Representatives each state should be allotted, and bases this on census numbers. The Constitution as it stands accounts for each state to have two senators, but it does not provide for a long-term solution for how many representatives there should be in the House. (Article I, Section 2 establishes an initial group of representatives for the states, but leaves the apportionment to Congress and later laws.)

The text of the unratified CAA is as follows:

ARTICLE I. 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.

The Amendment foresaw that the new American Republic would multiply, and allowed for representatives to serve growing numbers of people, capping at 50,000 per representative. The House is meant to function as close to a fully democratic body as possible, and by keeping the number of people each House member represented low, it brought a more democratic approach to the institution.

If you’re sitting there doing the math, don’t worry, I’ll help. In the last U.S. census in 2010, the overall population was counted at 308,745,538. If you divide that number by 50,000 and round up, you get 6,175 representatives in the House. In 2020, the next census year, the population will surely be higher, and the House could grow with the people under the CAA.

Does that seem extreme? Perhaps to our modern sensibilities. But the Founders at the Constitutional Convention actually worried that this would result in too many people being represented by a single representative. Indeed, one of the only times that George Washington is on record speaking up during the Convention was over the issue of apportionment. (The debate was over 40,000 or 50,000 per representative, and Washington convinced the Convention to drop that number to 30,000.)

If you used Washington’s preferred size with the 2010 census, we’d have more than 10,000 representatives in the House.

In Federalist 55, James Madison argued against the anti-Federalists who said the initial number of representatives was too low. (Congress originally had just 70 members.) Madison countered that if apportionment went according to plan, within 50 years of his lifetime, Congress would contain more than 400 members.

But Madison’s idea never came to fruition, the anti-federalists were right, and at the height of the progressive era in 1929, the House was capped at the 435 members we have now. Now, the average House district represents more than 700,000 people, and that figure is growing. Instead of being a democratic body, the House of Representatives is becoming more like a mini-Senate.

Ratifying the CAA would put the last piece in place of the Founders’ vision for the Constitution and break power monopoly in the House. Instead of representatives representing large swaths of people, they’d more closely mimic mayors or councilmen-and-women in local cities.

Increasing the size of the House would also create an explosion of creativity and diversity, with new parties and factions emerging all over the place. Parties like the Libertarian, Green, and Constitutional Parties would actually have a chance at getting their members in Congress.

In short, we’d see a far more democratic House representing the diverse views of America.

And with that explosion of creativity, we’d also effectively nullify the power of gerrymandering and broaden the number of people who could actually afford to run for office. Americans of all walks of life would be able to throw their hat in the ring for one of the House seats.

There would, of course, be adjustments and logistical issues in dealing with this new House. But logistical hurdles are hardly a compelling reason for failing to fulfill the Founding Fathers’ vision.

So if you want to set a goal for your state in the new year, look at getting your state to ratify the Constitutional Apportionment Amendment. Or as Lyman Stone likes to put it, #PackTheHouse.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.