Authoritarianism by the Numbers: A really inconvenient truth!
D. Frank Robinson
Is it also irrational to fix the proportion of constituents to Representatives? Or, considering the question from another perspective, is it rational (non-arbitrary) to fix the size of the population in order to have a House of Representatives with a 'workable' number of members? If the size of the population doesn't matter, why not reduce the size of the House to just fifty members – one for each state. Wouldn't that still be democratic? If the fundamental objective is to have the size of the House small enough for them to get along with whatever the program may be, then the fewer the better.
The historical evidence indicates that the size of the House of Representatives was fixed at 435 just when the population was growing in ways that threatened the interests of those who felt more entitled to their offices than any commitment to a principle of proportionality between constituents and the Representative. After all it only a mere custom of only a century's practice. Democratic elements are expendable when it is inexpedient for the few.
The authors of Constitutional amendments in the First Congress were neither stupid nor inattentive. But supposing that this defect in the apportionment amendment was a mistake that just slipped by, why wasn't a corrected Amendment immediately resubmitted for ratification?
Possibly because after ten of the twelve amendments were ratified the political pressure was off the federalist-centralist elements to negotiate a more democratic Congress. Thereafter, the size of the House became a matter of custom not Constitutional law. Customs change it becomes expedient. By the time of the early 20th century expediency finally trumped mere custom. Today, the reverse of the original intent has been elevated to legislation. The current law fixing a maximum size on the House of Representatives reveals how little trust can be placed in mere custom to protect the people's interest.
Or, why at the climax of progressive democratic zeal in the 1930s wasn't an amendment submitted to recover proportionality? Quite likely because Jim Crow in the South and anti-emigrant bias in the North were allied against it.
Or, why in the 1990s, when the 27th Amendment was adopted from the same original basket of twelve wasn't an amendment submitted? In this case the answer is not at all clear yet. It may have been simple lethargy or inertia.
Should 21st century Americans now attempt to ratify a 28th Amendment with the 'improvised explosive device' embedded in the last clause? I think we should. The antique IED can be disarmed with a short 29th Amendment. Besides the Congress has lost its credibility in getting the job done on their own initiative. They must now be driven by a population of defrauded voters.
The language in the last clause consistent with the intended purpose would read this way:
“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.
But the original language of an amendment pending ratification cannot be changed. It can be partially repealed with language in another amendment which is ratified to be effective after the ratification of the first. A companion amendment to correct the flaw is necessary. A companion amendment could take effect if, and only if, the primary amendment took effect. This is not novel. Many amendments in the past have done exactly that. The language of those amendments is contingent upon the previous language which they are modifying. After one amendment is ratified, another amendment is ratified to unratify the previous one – in whole or in part.
Of course, a companion 29th amendment could also have other clauses concerning the principle of proportionality in apportioning Representatives. The companion amendment would have to go through all the requirements to be placed before the states for ratification. But the 28th Amendment could still continue through the ratification process until the 29th was submitted. But it need not be ratified by the three-fourths of the states and become effective before the 29th is submitted for ratification. The 28th could linger just a few states short of ratification until the 29th was available for ratification. The 29th could then quickly move to 'catch up' with the 28th. Then the 28th could be ratified on one day and the 29th on the next day. The political result would be to make them effective as if they were one amendment. The practical implementation would not take place until the elections after the next decennial census (2012?).
Perhaps all the 'teeming masses' proclaiming their devotion to the spirit and letter of Constitution might welcome this opportunity to revisit the work of the founding generation and put a 21st century 'software patch' on the Constitutional code base. I think the original idea was that the Constitution is an open source project to which anyone can contribute.
To be continued...