Authoritarianism by the Numbers: A really inconvenient truth!
D. Frank Robinson
Had the apportionment amendment been drafted as intended and ratified at any time before the 2000 census, it would have permitted the U.S. House of Representatives today to be composed of as many as 5628 Representatives each with a constituency-district population of 50,004, but no more than that ratio. Also by way of examples, the State of Oklahoma could have had sixty-nine members in the House and Wyoming just ten. Under the existing scheme of a fixed 385 apportioned Representatives Oklahoma has five Representatives and Wyoming has one. The Wyoming Representative has 495,304 constituents. Each Oklahoma Representative has nearly 691,000 constituents. A 7 to 5 ratio is not exactly one person, one vote. It is blatantly not equal proportionality.
It is not necessary to implicate the possible relationship between the ratification of the16th Amendment and the end to proportionality in representation by no longer increasing the size of the House every ten years. It is not necessary, but it could be inferred from the circumstances.
While a House of 5628 Representatives may seem preposterous, isn't a House of 435 Representatives for a population of 300 million also preposterous? The question for Americans today - what number between 435 and 5628 is most acceptable to the people? Almost no one seems to want to seek an answer. It is nevertheless a legitimate and open constitutional question. It should be settled before the next apportionment after the 2010 Census! One could take a half-a-loaf position that 2077 would be a moderate compromise (5628-435/2). One could, but one would need not be constrained by the Constitution from seeking a three-quarter loaf or the whole enchilada.
Unfortunately, ratification of the pending amendment as the 28th by itself will not resolve the issue of a more just proportionality for representation. The amendment was drafted with a defect in its language.
Ratification of the apportionment amendment would make sense only if were adopted with a companion amendment, the 29th, to heal the probably intentional sabotage of the language in the 28th.
The intent was clearly to establish the eventual maximum population size for a Congressional district of 50,000. This would assure that the size of the House of Representatives would continue to increase with the population and could never be arbitrarily capped in size to entrench a class or faction in the House – without another Constitutional amendment to alter the proportionality. The objection of the opponents to Constitution was never that the size of a congressional constituency might become too small or the size of the House might become too large. Or at least that the size of the House membership might become too large in the lifetime of the next few generations. The fear among many people was that the House would become too small and the constituencies too large. The amendment also shows the drafting error, which was probably deliberate, effectively nullified the only plausible purpose of the amendment – too keep the size of the House continually increasing by fixing the maximum proportion between constituents and Representatives. In the amendment's last clause the phrase “nor less than”, which would have been consistent, was apparently altered in a conference committee by a Senator to “nor more than.”
Why do some scholars make this claim? By simply reading the whole amendment in the context of its historic avowed purpose and logic. Given a population of a determinant number, the relationship between the size of a constituent-district is inverse to the number of Representatives apportioned to all districts. Conversely, the number of Representatives apportioned to the whole population is inverse to the population of each constituent-district. If the population of the constituent-districts is allowed to float upward, fewer Representatives need to be apportioned. Or, the more Representatives that are apportioned, the lower the constituent-district population ratio will be for each Representative. One need only inspect the actual historical numbers to see the relationship until 1910.
Every clause modifying the absolute number of Representatives says “not less than.” The phrase in the clauses of “not less than” sets an absolute minimum on the number of Representatives in the House twice, but no maximum. Every clause modifying the proportion of constituents to Representatives says “nor less than.” However, the last clause modifying the proportion of constituents to Representatives reverses the meaning by saying “nor more than.” The phrase in the last clause of “nor more than” sets a minimum on the number of constituents in proportion to the number of Representatives; this means a maximum on the number of Representatives is permissible so long as the ratio of constituents exceeds 50,000 to one Representatives But the minimum number of Representatives had already been set at 200 in the previous clause. Why would the minimum be set redundantly? The result is to create a graphical 'hockey stick' which reverses original construction and a century of practice. Absurd and curious.
As originally drafted, this defect in the provision would create a 'paradox' if the total population declined below two hundred (the minimum number of Representatives) times 50,000 (the minimum number of constituents per Representatives) or ten million in which case any apportionment would be in violation of the provision.
Actually, the case for paradox is worse than that. Every state must have one Representative regardless of population. The Constitution provides no guidance about the status of statehood if the population falls so low as to approach zero in a state. Presumably, if there are enough people to fill the required offices all is well. But if the House must have two hundred Representatives and each state must have one Representative, then there can never be more than two hundred states - ever. That may seem ample, but why create a rule which could limit the number of states? Today, we have 50 states. After deducting one for each state, there must be at least 150 seats for apportionment among the 50 to obtain a minimum of 200 Representatives required in the pending amendment. At the same time there must be at least 50,000 people for each Representative. One hundred fifty times 50,000 = 7,500,000. Suppose 7 million people chose to live in one state and only 500,000 wanted to live in the other 49 states? Hopefully we shall never have face that situation, but why draft such a construction? But if it happened, the Constitution could be amended to restore some proportionality without resorting to forcible deannexation of under-populated states. What is the point of this thought exercise? To demonstrate that fixing the size of the U. S. House of Representatives to any absolute maximum or minimum number is irrational.
To be continued...