Congressional Apportionment Amendment

Article the First (also referred to as the Congressional Apportionment Amendment) is the first proposed amendment to the United States Constitution though it has not been ratified. It was the first of twelve amendments produced by the 1st Congress on September 25, 1789, and submitted to the state legislatures for ratification pursuant to Article V of the Constitution.

Text

Article the first... 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. (emphasis added)

In the original House version, the bolded "more" was "less":

Article the first... 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. (emphasis added)

The final "less" may have been changed to "more" because of an incorrect interpretation of a joint House/Senate conference committee. In the handwritten copy of this committee's report, as well as the reprinted Senate Journal, Senator Ellsworth states the indicated "less" was in "the last line but one". This use of a penultimate description of the indicated line means the second to last line. One way to denote lines is by their physical location. The original House version as provided by the House for Senate markup shows the change to be correctly made if one uses the last printed line of text. Another method is linguistic where the text is broken up into its natural lines or clauses. In this article, there are three lines, or clauses, all beginning with "after" and separating the number of representatives into three possible apportionment limitations based on population growth. Yet there are two instances of the word "less" in this second to last line leaving it open to interpretation what the committee in fact meant and how it would affect the amendment. However, logically it would be the second instance since you cannot have "less" than 100 Representatives once the number of Representatives reaches 100.

If the Joint Committee that made this change meant to retain the basic principles of a growing congress as both the House and Senate versions of the article called for, the language would read as:

Article the first... 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 more than one Representative for every forty thousand persons (sets a minimum of 100 Representatives thereafter, and creates a floor of 40,000 persons per District), 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.(sets a minimum of 200 Representatives thereafter, and creates a ceiling of 50,000 persons per District) (emphasis added & parenthesized text inserted for interpretation purposes only)

This creates a situation where, once 100 Representatives are seated, they may represent districts no smaller than 40,000 persons. However, there is no upper limit on the number of persons within these districts until 200 Representatives are seated. Once 200 are seated, they may represent districts no larger than 50,000 persons.

Purpose

This amendment was proposed as a means to ensure a minimum representation for the common people in the new government defined by United States Constitution. In the First Congress, amendments properly addressing the issue were produced by both the House and the Senate, each providing for a minimum representation based on the expanding population of the nation. The original copies from the Committee and Oliver Ellsworth comment files show that the conference committee ultimately set a ceiling of one Representative for every 50,000 people.

Background and history

The original drive for this amendment was aimed at controlling the size of electoral districts. The Federalists attempted and largely succeeded in defusing the issue through their acquiescence to amendments concerning the matter beginning with the Massachusetts ratification convention. A version of Article the First was prominent among the initial twenty or so amendments that were defined by the various ratifying conventions—hence it is known as Article the First. The assurance that these amendments would be addressed in the First Congress was essential to the ratification of the new Constitutional government.

By January 9, 1788, five states of the nine necessary for ratification had approved the Constitution: Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. But the eventual outcome remained uncertain in pivotal states such as Massachusetts, New York, and Virginia. On February 6, with Federalists agreeing to recommend a list of amendments amounting to a bill of rights, Massachusetts ratified by a vote of 187 to 168... In the next 2 months, thanks largely to the efforts of Madison and Hamilton in their own states, Virginia and New York both ratified while adding their own amendments. The margin for the Federalists in both states, however, was extremely close. Hamilton figured that the majority of the people in New York actually opposed the Constitution, and it is probable that a majority of people in the entire country opposed it. Only the promise of amendments had ensured a Federalist victory.

The original object of broader representation was compromised in the ratifying conventions in order to set forth a more concise request for amendment and, perhaps at the same time, to weaken it. Article the First was requested even ahead of a demand for what ultimately became the Bill of Rights. The electorate were concerned about both the size of electoral districts and the term of office in their House of Representatives. They wanted these districts to remain small and the term of office to remain brief, to better enable them to quickly remove representatives that did not act in such a way as the people desired. The people of the nation were already averse to constituencies (representative districts) as large as thirty thousand and there was much controversy over the issue during the ratification process. What would become Article the First and other amendments were called for by James Madison in the House on June 8, 1789. Madison's proposed text of the amendment was as follows:

After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to [first blank], after which the proportion shall be so regulated by Congress, that the number shall never be less than [second blank], nor more than [third blank], but each state shall after the first enumeration, have at least two representatives; and prior thereto.

What emerged as the final House version of the amendment was as follows (emphasis added):

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

Such an amendment would have created a membership in today's House of some 6000 plus members. That text (with the word "less") stands as the official House version of the amendment before the alteration by the joint committee.

The Senate took up the measure on September 2, 1789 and were resolved as to the following:

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 representatives shall amount to two hundred, to which one representative shall be added for every subsequent increase of sixty thousand.

This language would have set the membership of today's House at 5,000.

The Joint Conference Committee however decided to retain the House version with only one minor change; substituting "less" for "more" in "the last line but one" and recommending both houses to agree to such a change.

While both houses agreed to this change, the House clerk incorrectly recorded and transcribed this change as striking out the word "less," in the last place of the said first article, and inserting in lieu thereof the word "more." As a result, the language of the copies of these amendments sent out for ratification by the states included this inaccurate interpretation of the conference committee's change as approved by both houses. Notwithstanding this defect, by 1791, the legislatures of a sufficient number of states had ratified the last ten of the twelve proposed amendments, which became the Bill of Rights, but not the first two. The second of the twelve amendments, which concerned Congressional compensation, was ratified more than two centuries later in 1992 and belatedly became the Twenty-seventh Amendment.

Article the First, which came close to being ratified in the early 1790's, has been ratified by the legislatures of only the following eleven

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

At the time it was sent to the states for ratification, an affirmative vote by 10 states would have made this amendment operational, When Vermont became the 14th state in the Union on March 4, 1791, that number rose to 11, and when Kentucky was admitted, it rose to 12. To become part of the Constitution today, ratification by 38 states (an additional 27) would be required.

Although the act, on the part of state legislatures, of "rejecting" a proposed constitutional amendment has no legal recognition, such action does have political implications—the Congressional Apportionment Amendment was postponed by lawmakers in Delaware on January 28, 1790.

No action is known to have occurred with regard to this particular Amendment by legislators in Georgia or Massachusetts as far as the current public records show but it's thought that Rutgers University in New Brunswick, NJ may have a voting copy of the Georgia ratification paperwork in their archives.

According to the Supreme Court's 1939 ruling in Coleman v. Miller, because there is no deadline for its ratification, Article the First is technically still pending before state lawmakers.

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.

Amendments requested

• Ratification - North Carolina
• Massachusetts Ratifying Convention
• Ratification in New York

Madison on constituency size

Should Experience or public opinion require an equal and universal suffrage for each branch of the Government such as prevails generally in the U.S., (then) a resource favorable to the rights of landed and other property, when its possessors become the Minority, may be found in the enlargement of the Election Districts for one branch of the Legislature and a prolongation of its period of service. Large districts are manifestly favorable to the election of persons of general respectability, and of probable attachment to the rights of property, over competitors depending on the personal solicitations practicable on a contracted theater. And although an ambitious candidate, of personal distinction, might occasionally recommend himself to popular choice by espousing a popular though unjust object, it might rarely happen to many districts at the same time. The tendency of a longer period of service would be, to render the Body more stable in its policy, and more capable of stemming popular currents taking a wrong direction, till reason and justice could regain their ascendancy. Should even such a modification as the last be deemed inadmissible, and universal suffrage and very short periods of elections within contracted spheres be required for each branch of the Government, the security for the holders of property when the minority, can only be derived from the ordinary influence possessed by property, and the superior information incident to its holders; from the popular sense of justice enlarged and by a diffusive education; and from the difficulty of combining and effectuating unjust purposes throughout an extensive country; a difficulty essentially distinguishing the U.S. and even most of the individual States, from the small communities where a mistaken interest or contagious passion, could readily unite a majority of the whole under a factious leader in trampling on the rights of the Minor party.

Analysis

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. However, if the logarithmic extrapolation in the Article had continued (i.e., increasing district population by 10,000 whenever the House grows by 100), then the House would have nearly four times as many Representatives and districts would have fewer than 200,000 residents, given current population.

The Joint House/Senate Conference Committee version does not have contradictory language, but it does allow for unlimited size districts so long as the number of seated representatives remains below 200. This allows for Congress the option of increasing its membership to 200 or more seats once population hits 8 million, but to do so limits districts to a population of 50,000 or less persons.

The version recorded by congress and sent to the states for ratification would have resulted in this:

population	number of representatives	district size
< 3,000,000	< 100	30,000
3,000,000 to 8,000,000	100 to 200	≤ 40,000
8,000,000 to 10,000,000	impossible to satisfy conflicting conditions	≥ 50,000
≥ 10,000,000	≥ 200	≥ 50,000

The original House version would have resulted in this:

population	number of representatives	district size
< 3,000,000	< 100	30,000
3,000,000 to 8,000,000	100 to 200	≤ 40,000
> 8,000,000	≥ 200	≤ 50,000

The Joint House/Senate Conference Committee version as envisioned by Senator Ellsworth would have resulted in this:

population	number of representatives	district size
< 3,000,000	< 100	30,000
> 3,000,000	100 to 200	≥ 40,000
> 8,000,000	≥ 200	≤ 50,000

See also

• Wyoming Rule
• List of amendments to the United States Constitution
• List of proposed amendments to the United States Constitution
• United States congressional apportionment

References

• Congressional Research Service. (1992). Proposed amendments not ratified by the states. In The Constitution of the United States of America: Analysis and Interpretation. (Senate Document No. 103–6). (Johnny H. Killian and George A. Costello, Eds.). Washington, DC: U.S. Government Printing Office.