By Lyman Stone
A growing chorus of left-leaning pundits have begun to call for the abolition of the Senate. It defies the principles of representative democracy by giving some people more power than others based on arbitrary geography; it systematically weakens the political power of minorities; the Senate’s whole origin is part of a plot to protect slavery.
These are all interesting arguments, but they run up against two serious problems: first, any plan to change the Senate will inevitably, as a basic rule of math, involve about half of the states or more losing power, which means those states’ Senators are unlikely to vote for it. Second, Article V of the U.S. Constitution spells out that while normal amendments can be passed with approval from three quarters of the states, altering the composition of the Senate requires unanimous consent of every state. In other words, Senatorial reform will never happen, regardless of its merits.
But the truth is, while the Senate may be all those things its critics say, it has the virtue of being honest about it: of course the Senate is unrepresentative and privileges certain voters more! That’s why it exists! It may be bad, but it’s an honest, plainspoken kind of bad.
The House of Representatives is a different story.
During the Constitutional Convention in 1787, George Washington only made one speech from the floor on what should be included in the new Constitution. After everything had been agreed upon and the delegates were ready to take the final vote, Washington stood up and advanced one last minute request, the first such request he had offered in weeks of deliberation: instead of having one representative per 40,000 people, Washington asked the convention to lower the ratio to one per 30,000. This issue, that representatives should have small constituencies with which they could be closely and personally tied, is the only thing that moved Washington to activism during the whole debate. If we adhered to that rule today, we’d have 10,000 members of the House.
It’s no surprise then that, when the first round of 12 amendments to the Constitution were circulated, the First Amendment established a rule requiring that the size of the House increase with population. The amendment required that there be one representative per 60,000 residents of a state, and it passed the House and the Senate along with the ten amendments we know today as the Bill of Rights, and the amendment we know today as the 27th amendment, limiting Congressional pay.
The original first amendment has become known today as the Congressional Apportionment Amendment, or CAA. The CAA was quickly ratified by many states along with the rest of the Bill of Rights. However, a few states didn’t ratify it. The reasons aren’t exactly clear, but one issue appears to have been a typo.
The original approved draft of the CAA read:
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.
That is, there should be one representative for every 50,000 persons.
But in the conference over the House and Senate versions of the bill, a clerical error was introduced: the last “less” was changed to “more.” The archival record is clear: it’s supposed to be “nor less than one Representative….” The clerks doing the copying made other errors too: they called “Cruel and Unusual Punishment” “Cruel and Unusual Imprisonment.” It actually doesn’t matter what text was given to states: constitutionally, states are voting to affirm whatever Congress voted on, and congress voted on the a version that clearly stated that the size of the House should perpetually increase with population
But one of these finicky states was Connecticut. Connecticut ratified the CAA, then tried to un-ratify it, then re-ratified. But alas, the record of these ratifications was lost to history, until rediscovered in 2011. This matters for a very simple reason: if Connecticut really did ratify the CAA, then the CAA got enough ratifications to be certified as an amendment. The graph below shows the timeline of ratification.
Connecticut makes all the difference. I have looked for a counter-argument to this history, and have not found one. There doesn’t appear to be any serious public dispute anymore to the argument that Connecticut actually did ratify the CAA. And if Connecticut did ratify it, then it should have been made the law of the land nearly 230 years ago.
In Federalist 55, James Madison wrote to address concerns that the House was too small, being under 70 representatives at first. His first rebuttal was simple: Congress had extremely limited powers, so didn’t need to be big. This rebuttal is laughable today: Congress’ powers and responsibilities are extensive, and so a larger assembly is reasonable.
His second rebuttal is more interesting: Madison says that the initial Congress of 70 men is not too small, because it will be “augmented” at every Census! In his writing, Madison explicitly assumed that the House would have 400 members within 50 years, or 1837. In the real world, in 1837, there were just 240. From 1810 onwards, the House was “augmented” at a slower pace than population growth.
Madison goes on to say that if the House were not regularly augmented, then he “should admit the objection to have very great weight indeed.” In other words, James Madison basically conceded the point that failure to regularly augment the size of the House would endanger its ability to represent the people. And in what regard might it do so? Simple: if the House were not augmented, then the representatives “will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many.”
Sound familiar?
It turns out, the anti-Federalists argued back to Madison. They suggested that, augmentation wouldn’t really happen, that, actually, the promised regular expansions that Madison deemed so vital to having a functional House would be thwarted. Madison’s response was to write one of the most embarrassing intellectual moments of the otherwise brilliant Federalist Papers: Federalist 58.
In it, Madison pooh-poohs the likelihood that augmentation would be thwarted, arguing that it would never happen because small states could prevail upon “the known and determined sense of a majority of the people” to carry out justice and increase the size of the House.
His naivete is painful. Madison died in 1836. In the very next apportionment after the 1840 Census, the number of representatives in the House was reduced from 240 to 223. It would not rise over 240 again until 1860 despite a massive wave of immigration fueling enormous population growth. And then in the 1929 Apportionment Act, the size of the House was permanently capped at 435.
Madison’s expectations about legislative size turned out to be wrong at every turn, and the Anti-Federalist fears were right. Today, House members aren’t “representative” samples of the population. They’re national elites, notables in league with the powerful people of their district. Most people will never have any substantive interaction with their Representative. And the reason why is quite simple:
The number of people per representative is steadily rising. And while it may be true that there is no arbitrarily correct mathematical principle for how many representatives there should be, certainly, “Nearly 700,000 people for 1 representative” isn’t right.
Madison’s argument for legislative size was straightforward: while it was very small to begin with, the size would steadily grow with population. And if it eventually had to be capped to keep it manageable, at some size north of 400 members, it wouldn’t be a big deal, because the powers of Congress were extremely limited, and State legislatures would be doing most of the work. But, just in case there was any confusion, the way to check and see if the House was representative enough was to see if the social class of House members was of such a level to give them “sympathy for the masses.”
Madison was wrong that augmentation would continue forever; he wasn’t even correct that it would continue up to 400: Congress conspired to restrict the size of the House from practically the moment Madison was buried.
Madison was wrong that the powers of Congress would be very modest and that state legislatures would address most issues: today, the Federal government is the dominant driver of most policy, and is vastly more fiscally important for most people than the state government. As such, what Madison envisioned as being low-stakes of having too small a legislature are actually quite high-stakes.
And Madison’s fear, shared by the Anti-Federalists, that the people elected to this too-small of a legislature would be elites dedicated to their own power, not a representative slice of the population, has basically come true. Today, the House is packed with millionaires and professional partisans.
And even if you grant all of Madison’s views credence (which you shouldn’t, because he was wrong about every piece of this question), you have to face the fact that Madison supported an amendment requiring the expansion of the House. There is not one shred of the Founders’ vision for how the House should operate alive today in the House of Representatives.
But what if there were?
It is possible that the CAA was ratified in the 1790s, and is already current law. There have been lawsuits around this issue, but the courts have refused to rule on it, as it is an inherently political question. But what’s really happening is far simpler: it’s a complicated issue that would have enormous effects, but that all the political establishment feels comfortable ignoring. It seems a bit too far-fetched that we have been ignoring a legitimate constitutional amendment for 220 years; surely nobody can believe such a thing? If we implemented the CAA today, we’d have over 6,000 members of the House! That’s just absurd!
As long as the courts, and Congress, believe that the status of the CAA can safely be ignored because nobody really cares, this lethargy will persist. But it might not take much to shake Congress and the courts into action. If even a single state were to ratify the CAA today, it would signal to Congress and the nation that this issue is not dead and will not die.
Recall how I mentioned that one of the other of the original 12 amendments failed to pass. It limited how Congress could raise its own salary. Well, in the 1980s, a law clerk dug it up and realized it was still active, so he began to lobby state legislatures to pass the amendment. By 1992, enough had ratified it that a 200-year-old amendment became the 27th amendment to the U.S. constitution. There’s no reason we can’t do the same thing with the original first amendment, making it now the 28th amendment: states could start ratifying it, sending a signal that “the known and determined sense of a majority of the people” is that the House must be reformed.
And indeed, it’s high time for reform. The chart below shows how much time had elapsed since the most recent constitutional amendment throughout U.S. history.
In the other case, it was a period of rising monopoly power by large businesses, governmental corruption, and economic volatility. This long period without major reforms gave rise to new political movements: progressivism, which led to large expansions in the Federal government; and anarchism, which was the first major terrorist movement to target the United States. Ultimately the progressives gained enough power to push through new amendments: the income tax, direct election of Senators, womens’ suffrage, and prohibition of alcohol.
In both cases, because moderate reforms were postponed or refused time and again, more extreme results occurred. Had slavery been voluntarily abolished in the 1840s, civil war, reconstruction, and the diminishment of state power in the 14th amendment could have been avoided. Had the corruption of state selection of Senators been fixed earlier by legislation, or had womens’ suffrage been granted in the 1800s, the more radical progressive policies of the day, prohibition (which led to a wave of organized crime) and the income tax, might have been forestalled.
An ounce of prevention is worth a pound of cure. The same phenomena can be seen in the ancient Roman Republic. The popular masses repeatedly called for reforms. Sometimes they would be given reforms: the institution of the tribunate, changes to Senatorial powers, and other structural changes. But sometimes, the Roman Senators would refuse to compromise with structural change. In time, the masses would always radicalize and begin demanding government breakup of private landholdings, redistribution of wealth, and expanded welfare.
As Jefferson put it, “The tree of liberty must be refreshed from time to time…” He thought it had to be refreshed “with the blood of patriots and tyrants.” But he was wrong. Liberty can be renewed by peaceful reform.
Expanding the House would have numerous benefits. First of all, allowing 6,000 House members would massively expand how many people could become legislators. This infusion of new blood would expand the diversity of ideas represented in government, and almost certainly result in a body whose beliefs and ideology more closely represent the actual citizenry of the 50 American republics.
It is almost certain that, while Democrats and Republicans would win most districts, the Green Party, Libertarians, Constitutionalists, Independents, perhaps even Socialists and others, would win a few small districts. While there may not be anywhere where libertarians can contest an election with 700,000 people, there are lots of places where a local popular libertarian could score the 20,000 votes or so needed to win an election in a small jurisdiction. The presence of more third parties would make Congress more representative of Americans, but could also help nudge the larger parties away from deadlock.
Furthermore, representatives of local areas may have more idiosyncratic interests. They would almost certainly be representing narrower slices of the economy in their districts. While this can be bad insofar as it makes representatives myopic on certain issues, it can have positive side effects.
Representatives from districts with only two or three major businesses may not care very much about other industries, and so may be more ready to compromise on issues related to those industries. That is, with smaller districts, Representatives will be more deeply invested in a few issues, but be more open to compromise on more issues. They won’t have constituents calling them about as many issues.
Administratively, a bigger House would be a nightmare. You simply couldn’t manage 6,000 House members the way the House is presently managed. Committees would have to be larger, and House members would each only be able to serve on one or two committees. The whole House could not easily assemble in one room to vote: they would have to either vote in shifts, or else switch to fully electronic voting. There isn’t enough office space for every Representative to have a staff as large as a current Congressional staff, so we’d have to reduce the size of each individual office.
But it turns out, none of these are bad things! Having Representatives who specialize more deeply in the issues of one committee, instead of dividing time between 3 or 4, is probably a good thing given the complexities of modern government. Switching to electronic voting is long overdue, and could have a beneficial side effect: Congress could start using more electronic and remote voting and conferencing, allowing Representatives to Represent their district in Congress without actually relocating to DC. This would truly make the House representative!
And if we have to reduce the size of personal offices, that’s no problem: smaller districts and fewer committee assignments reduce the number of legislative aides and correspondents a Representative needs. As long as subject-matter expert staff for committees are scaled up correspondingly, Congress would, if anything, experience a net improvement in the quality of staffers.
With smaller districts, smaller staffs, fewer responsibilities, and less time demanded in DC, more people could become Representatives. Many people with normal jobs could run for office, and, in a small district where they know many constituents, they wouldn’t need to run million-dollar campaigns. As a result, there would almost certainly be more turnover among Representatives: more people would take the job for just a single term or two terms, smaller districts would be easier to “flip” if a Representative displeased their constituents, and simple demographic change would result in more districts changing composition and so desiring different Representatives.
In other words, expanding the size of the House would have a similar effect at ensuring “new blood” as term limits would, but without directly limiting good, experienced statesmen from contributing through a long and distinguished career. Regardless of whether the CAA has already been ratified, it probably should be ratified. It would massively expand the franchise of political participation, and help people feel more connected to their government again.
The Senate is virtually impossible to reform. But the House can be reformed very readily: indeed, major House reform may already be an approved constitutional amendment which has been ignored for 220 years. But even if Connecticut’s ratification doesn’t count, it would only take 26 more states to make the Congressional Apportionment Amendment undisputed law.
Regardless of the CAA’s current legal status, state legislatures could and should take up the cause and ratify the amendment, signaling to Congress, the courts, and other states that the people want expanded participation in governance. This is what the Founders would have wanted; the framers of the constitution would be horrified today to see that we act like one person can represent 700,000 people. And aside from the intentions of Madison, Washington, and Jefferson, it turns out that expanding the size of the House is just a good idea in its own right. A House that is more representative, accessible, and diverse would be good for the country, and help forestall the rise of more radical movements. It’s time to #PackTheHouse.
Lyman Stone is a Research Fellow at the Institute for Family Studies, and an Advisor at the consulting firm Demographic Intelligence. He and his wife serve as missionaries in the Lutheran Church-Hong Kong Synod. He also writes about migration issues on his blog “In a State of Migration.” He was formerly an agricultural economist at USDA’s Foreign Agricultural Service. He has an MA in international trade policy from the George Washington University. Opinions expressed are solely his own, though his wife Ruth occasionally agrees with him.
