Authoritarianism by the Numbers: A really inconvenient truth!
D. Frank Robinson
( 2.) Does the proposed amendment make our system more politically responsive or protect individual rights? A campaign for ratification of the 28th Amendment could initiate a spirited national debate on a number of issues related to representation and elections. Furthermore, a companion amendment which simply corrects the last clause could be ratified in tandem with the 28th Amendment as the 29th Amendment. There is no other Constitutional way to correct the original defective language in the pending 28th Amendment. The two amendments could take effect almost concurrently with the 29th contingent on the ratification of the 28th. A larger House of Representatives with smaller constituencies would open greater access by the public to the Congress. The closer to the Census, the better for ratification. The larger the number of constituent-districts, the greater the opportunity for a more diverse and proportionally representative Congress.
( 3.) Are there significant practical or legal obstacles to the achievement of the objectives of the proposed amendment by other means? There would appear to be fewer practical obstacles to enlarging the number of Representatives with the capabilities of existing technology than have been encountered in trying to convert the entire electorate to electronic voting. Legal obstacles to ratification would almost certainly emerge from opponents. The merits of those alleged obstacles might well have to be litigated. That is simply part of the process.
( 4.) Is the proposed amendment consistent with related constitutional doctrine that the amendment leaves intact? Congressional hearings to draft the 29th Amendment would implicate the work of the First Congress in drafting the pending 28th Amendment. These issues would no doubt be addressed in drafting the provisions of the 29th. Enlarging the size of the U.S. House of Representatives would tend to mitigate issues surrounding the 'fairness' of re-districting. More districts means more options for boundaries acceptable to all parties.
( 5.) Does the amendment embody enforceable, and not merely aspirational standards? If the provisioning of 435 seats is enforceable, the provisioning of perhaps 1776 seats should also be enforceable. It would not necessarily thwart the aspirations of incumbent congresspersons to be re-elected. There would be plenty of seats to accommodate them and none of them would be forced to run against one another. The number of seats would increase for every state.
( 6.) Have proponents of the proposed amendment attempted to think though...ways in which the amendment would interact with other constitutional provisions and principles? Yes.
( 7.) Has there been full and fair debate on the merits of the proposed amendment? No. Not yet. That's the problem before us. Shall the people confront the incumbent Congress? It is notable that resolutions were introduced in the 107th, 108th and 109th Congresses to appoint a commission to make recommendations on “the appropriate size of membership of the House of Representatives.” No action has been taken. We must conclude that since the Congress does not want the issue even studied and discussed, it is entirely appropriate for citizens to independently study and discuss this issue in the context of the pending apportionment amendment to the U. S. Constitution. This amendment presents a viable opportunity for a 'velvet revolution' - revolution under the Constitution.
( 8.) Has Congress provided for a nonextendable deadline for ratification by the states so as to ensure that there is a contemporaneous consensus by Congress and the states that the proposed amendment is desirable? I find guideline Eight most objectionable. This concern is not really applicable to the pending 28th amendment. However, it does raise an interesting issue. Where is the constitutional authority for the Congress to place any limit on the time for consideration of proposed amendments by the states? Any such limit is over-reaching by the Congress and a violation of the rights of the states. The First Congress did not do it. The 27th Amendment has been adopted legitimately and there is no reason why this pending amendment, or any other proposed amendment for that matter, should carry an infirmity which previous amendments have not carried. In Coleman v. Miller, the U.S. Supreme Court ruled that the ratification of a constitutional amendment is “political” in nature and that Congress has the power via Article V of the U.S. Constitution to modify the mode of an amendment's ratification. SCOTUS got it wrong again. Nevertheless, a nonextendable deadline clause of seven years in the proposed 29th Amendment would have no detrimental effect on the 28th. The pending amendment cannot be withdrawn from the states. If it does not become the 28th Amendment, it could be the 29th or the 30th Amendment.
Parenthetically, it seems entirely appropriate to consider another amendment that would clearly prohibit the Congress from planting timed improvised explosive devices (time limits for ratification) in Constitutional amendments, but that is another matter for another time.
In conclusion, it appears reasonable that the pending 28th amendment, which was intended to assure both (a) proportionality between representation and constituency and (b) perpetual enlargements of the U. S. House of Representatives, meets at least six of the eight criteria suggested by the Constitution Project. Or phrasing it another way, only six of the eight criteria are applicable to this amendment. It is therefore not really necessary to fully engage the last two criteria in this instance. If the argument on the first six criteria is sufficient for the 28th Amendment, then it is also sufficient for the correcting companion 29th Amendment - with or without a deadline provision is a matter of lesser controversy in this particular case.
The world's largest parliamentary or legislative body is the: National People's Congress, China with 2,937 members. China has a population of about 1.3 billion. There is one member in their Congress for every 434,000 people. The U. S. House of Representatives has 435 members. Each member of the U.S. House represents an average of 647,000 people. That's one and a half as many as the as the average Chinese representative. To have the same ratio of members as China the U. S. House would need to add 213 members. Of course this comparison is not necessarily relevant for U. S. citizens. Chinese citizens have very little influence on their rigidly authoritarian government. The relevant issue for Americans is whether we have more influence on this government or whether the government is merely better at disguising its authoritarian character? You probably knew the answer already. So what are you going to do about it?