# Would this be Constitutional? **URL:** \ **Category:** Great Debates\ **Created:** [November 9, 2012, 12:15am UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426 "2012-11-09T00:15:29Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [November 9, 2012, 5:22pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/21 "2012-11-09T17:22:56Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What case are you referring to? The “as nearly as practicable” standard refers to [apportionment of representation _within_ a state](http://www.law.cornell.edu/supct/html/historics/USSC_CR_0394_0526_ZO.html) - the requirement that voting districts be of the same approximate population size. > > It’s not at all clear that federal courts would intervene if Congress decided each state was entitled to 1 representative per 500,000,000 residents, or whatever. Though this is clearly contrary to the framers’ intent, it’s not contrary to the letter of the law. > Moreover, Congress is expressly empowered by the Constitution to choose the methods of apportionment. Courts generally refrain from telling Congress or the executive what to do in areas where they are expressly in charge. True enough. See the discussion [here about the Clemons case](http://www.scotusblog.com/2010/12/copyright-defense-restricted/). The district court’s ruling dismissing the case was that apportionment was firmly up to Congress, but the Supreme Court vacated that ruling for lack of jurisdiction, without explaining why. But given everything I’ve said above, I think it’s obvious that a one rep per state plan would violate Article 1 and the Fourtheenth Amendment. You can be cute with the language and the rationale around it all you want, the practical effect would be that the amount of representation a citizen could expect would depend purely on geography (or is it cartography?), not “according to their respective Numbers.” That said, how low could Congress go before they ran afoul of the Constitution? I could see a House that only has 85 members - three for the 10 most populous states, two for the next 15, and one for the remaining 25. I think the Court would have a much tougher time deciding whether to take that legal challenge than for a one rep per state plan. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [November 9, 2012, 5:32pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/22 "2012-11-09T17:32:49Z")
Also, note the difference in language in Article 1 between Section 2 (“apportioned…according to their respective numbers”) and Section 3 (“The Senate of the United States shall be composed of two Senators from each State”). The House is intended to represent the People, while the Senate was intended to represent the states. ---
**Author:** ![Folacin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/folacin/32/3195_2.png) [@Folacin](https://boards.straightdope.com/u/Folacin)\ **Post date:** [November 9, 2012, 5:34pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/23 "2012-11-09T17:34:38Z")
> [@MOIDALIZE](#): > > But given everything I’ve said above, I think it’s obvious that a one rep per state plan would violate Article 1 and the Fourtheenth Amendment. You can be cute with the language and the rationale around it all you want, the practical effect would be that the amount of representation a citizen could expect would depend purely on geography (or is it cartography?), not “according to their respective Numbers.” > > That said, how low could Congress go before they ran afoul of the Constitution? I could see a House that only has 85 members - three for the 10 most populous states, two for the next 15, and one for the remaining 25. I think the Court would have a much tougher time deciding whether to take that legal challenge than for a one rep per state plan. This matches the original explanation of fuzzy logic I heard: Fuzzy Wuzzy was a bear Fuzzy Wuzzy had no hair Fuzzy Wuzzy wasn’t very fuzzy, was he? FW having 1 or 10 hairs doesn’t make him fuzzy either, whereas, 100,000 probably does (unless he’s a really big bear). But at what point do we get to call him ‘fuzzy’? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 9, 2012, 5:35pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/24 "2012-11-09T17:35:02Z")
Assuming it _is_ a political question (a conclusion I think it more obvious from Clemons than your link writer), the answer is “it doesn’t matter, because the only avenue of appeal is Congress itself.” ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [November 9, 2012, 6:21pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/25 "2012-11-09T18:21:32Z")
> [@Really\_Not\_All\_That\_Bright](#): > > …It’s not at all clear that federal courts would intervene if Congress decided each state was entitled to 1 representative per 500,000,000 residents, or whatever. Though this is clearly contrary to the framers’ intent, it’s not contrary to the letter of the law… It is contrary to the letter of the law if “according to their respective numbers” is interpreted, as it reasonably should be, to include only actually exisiting numbers rather than phantasms. Also, I hope we can count on the courts to strike down any act which so brazenly caricatures intent. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 9, 2012, 6:39pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/26 "2012-11-09T18:39:21Z")
As a sort of hijack… Does anyone know why the Senate was set up with 2 per state instead of 1 per state? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 9, 2012, 7:38pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/27 "2012-11-09T19:38:10Z")
> [@Tom\_Tildrum](#): > > “Apportioned by population” has always been taken to mean “apportionment of whatever number of Reps has been set by Congress.” As far as I know, no one’s ever tried to use that clause to force the House to expand, despite the population inequities that exist even with 435 members. The OP is presenting an extreme case, which admittedly makes the decision tougher, but as he points out, his distribution is technically compliant. Others here are right that it does not seem to satisfy the intent of the Constitutional provision, but striking it down poses its own challenges. If 50 doesn’t satisfy the framers’ intent, what number does? How can 435 be justified, vs. something an order of magnitude larger? That raises the issue from the other end. Several people are arguing that a limit of fifty representatives (or fifty-one or a hundred) would make it impossible to carry out the intent of the Constitution. So would you extend this argument and say that Public Law 62-5 and the Reapportionment Act of 1929 should be overturned as unconstitutional? By setting a limit of 435, Congress made it impossible for California to have the 66:1 ratio of representation over Wyoming that it is entitled to. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [November 9, 2012, 7:43pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/28 "2012-11-09T19:43:23Z")
> [@John\_Mace](#): > > As a sort of hijack… Does anyone know why the Senate was set up with 2 per state instead of 1 per state? The [Senate Web site](http://www.senate.gov/artandhistory/history/common/briefing/Constitution_Senate.htm#1)has a pretty good little summary: > [@](#): > > Once delegates established equal representation in the Senate, they needed to determine how many senators would represent each state. State constitutions offered some guidance. Several states designated one senator per county or district, while in Delaware there were three senators for each of the three counties. Convention delegates did not refer to the state precedents in debate, however. Instead, they seemed to take a common-sense approach in deciding the number of senators. > > According to constitutional commentator Joseph Story (1779-1845), few, if any, delegates considered one senator per state sufficient representation. Lone senators might leave their state unrepresented in times of illness or absence, and would have no colleague to consult with on state issues. Additional senators, moreover, would increase the size of the Senate, making it a more knowledgeable body, and better able to counter the influence of the House. On the other hand, a very large Senate would soon lose its distinctive membership and purpose, and actually decrease its ability to check the lower house or to allow senators to take personal responsibility for their actions. > > Given these considerations, delegates had a limited choice regarding the number of senators. During the convention, they briefly discussed the advantages of two seats versus three. Gouverneur Morris stated that three senators per state were necessary to form an acceptable quorum, while other delegates thought a third senator would be too costly. On July 23, delegates filled in the blank in the proposal offered by Morris and Rufus King: “That the representation in the second branch consist of \_\_\_\_\_ members from each State, who shall vote per capita.” Only Pennsylvania voted in favor of three senators. When the question turned to two, Maryland alone voted against the measure, not because of the number, but because Martin disagreed with per capita voting, which gave each senator, rather than each state, one vote. > > In its final form, the clause in the Constitution is deceptively simple. “The Senate shall be composed of two senators from each state” appears to be a single provision, the designated number of senators per state. Delegates agreed to this number, however, only after they had considered a larger matter: legislative representation. While representation proved to be the most controversial issue in the convention, delegates determined the number of senators quickly and with little dispute. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 9, 2012, 7:51pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/29 "2012-11-09T19:51:22Z")
> [@John\_Mace](#): > > As a sort of hijack… Does anyone know why the Senate was set up with 2 per state instead of 1 per state? I’m just speculating. But the Americans writing the Constitution were obviously familiar with and influenced by the political institutions of the Roman Republic (as evidence by the name they gave the Senate). And one of the central principles of Roman Republican politics had been duplicating political offices. It was felt that if you gave an office to one individual, he would have too much power. So the Romans would give two people the same office and figure each of them would act as a check on the other: there were two consuls, two praetors, two tribunes, two aediles, two censors. Coincidentally, the original Roman Senate consisted of one hundred members. Not the number the founders started with, but the number we’ve ended up with. eta: Or, you know, it could be the result of a discussion like colonial described. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [November 9, 2012, 9:08pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/30 "2012-11-09T21:08:44Z")
> [@MOIDALIZE](#): > > We currently have 435 Reps because Congress passed a law locking in that number. The Supreme Court hasn’t found that to be unconstitutional. If Congress passed a one rep per state law, I’m saying the Court would find that unconstitutional based on a plain reading of Article 1 and precedent. I think this is correct. Unless the proponents of the change had carefully packed the high court before hand it would rule against such a radical constitutional change despite its historic deference on such questions. But what if instead the House remained at 435 and we gradually added state after state until we reached one Rep per state. There I could see the courts tolerating it. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 9, 2012, 9:28pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/31 "2012-11-09T21:28:17Z")
> [@colonial](#): > > It is contrary to the letter of the law if “according to their respective numbers” > is interpreted, as it reasonably should be, to include only actually exisiting numbers > rather than phantasms. > > Also, I hope we can count on the courts to strike down any act which so brazenly > caricatures intent. Your opinions and hopes go in GD. ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [November 9, 2012, 9:37pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/32 "2012-11-09T21:37:24Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Your opinions and hopes go in GD. 😕 ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 9, 2012, 9:46pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/33 "2012-11-09T21:46:29Z")
Conversely, my immense sense of embarrassment on realizing this _is_ GD goes in MPSIMS. Sorry! :smack: ---
**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\ **Post date:** [November 9, 2012, 9:58pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/34 "2012-11-09T21:58:29Z")
It would be thoroughly and quite obviously constitutional. The whole purpose of the Hose is to represent the population, whereas the purpose of the Senate is to represent the states. That’s quite clear in the Constitution, so any attempt to turn the House into “another grop to represent the states” would be ruled out. And of course, how are we going to get 400 congresspeople to vote themselves out of jobs? 😉 ---
**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\ **Post date:** [November 9, 2012, 10:06pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/35 "2012-11-09T22:06:29Z")
“Hose” = “House”. “Grop” = “Group”. Grr My ‘u’ key must be missing. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 9, 2012, 10:58pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/36 "2012-11-09T22:58:38Z")
Yeah, none of your smut talk about hose groping in this forum. ---
**Author:** ![gnoitall](https://avatars.discourse-cdn.com/v4/letter/g/bb73d2/32.png) [@gnoitall](https://boards.straightdope.com/u/gnoitall)\ **Post date:** [November 9, 2012, 11:06pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/37 "2012-11-09T23:06:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Your opinions and hopes go in GD. Or it gets the hose again! 😛 ETA: And not “house”. My “U” key works just fine, thank you. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [November 9, 2012, 11:44pm UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/38 "2012-11-09T23:44:15Z")
Time to finally ratify the [Constitutional Apportionment Amendment](http://en.wikipedia.org/wiki/Congressional_Apportionment_Amendment). ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 10, 2012, 7:23am UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/39 "2012-11-10T07:23:05Z")
> [@Saint\_Cad](#): > > Time to finally ratify the [Constitutional Apportionment Amendment](http://en.wikipedia.org/wiki/Congressional_Apportionment_Amendment). Interestingly, I found that there are pretty current cases being argued that the Constitutional Apportionment Amendment has been ratified. Apparently back in 1790, Connecticut apparently ratified the proposed Amendment and then neglected to officially pass this information on to Congress. Then in January of 2012, somebody going through some old Connecticut records found the ratification and said “Huh, would you look at that.” If Connecticut’s ratification is added to the total then the Constitutional Apportionment Amendment received ratification by twelve states in 1792 - which would be three quarters of the sixteen states then in existence. If this is all true, then the Amendment was enacted in 1792 without anyone being aware of it. Last June, a guy in New Jersey filed a lawsuit based on the principle that the Constitutional Apportionment Amendment had been enacted and that the government should be enforcing it. (His specific issue was the outcome of an election which he said would have been different if New Jersey’s congressional delegation was what it should be.) The courts, so far, haven’t ruled directly on the issue. They’ve only ruled that this guy doesn’t have standing to submit his suit because he couldn’t show that the outcome of that election had an individual effect on him. But on an issue of this size, it’s only a matter of time before somebody does present a suit in which they can show standing and that will require a court to make a ruling on whether or not the Constitutional Apportionment Amendment is part of the Constitution. Depending on how you interpret the Amendment, this might require the House of Representatives to have up to 6200 members. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [November 10, 2012, 9:18am UTC](https://boards.straightdope.com/t/would-this-be-constitutional/640426/40 "2012-11-10T09:18:07Z")
In the unlikely event that congress decides to drastically reduce it’s numbers, and that is challenged in the SCOTUS on constitutional grounds, and the challenge fails, then it’s constitutional. Pretty much the way it works with all the “is it constitutional” questions. In this case there’s nothing explicitly prohibiting it, but the politics make it virtually impossible to happen, and the SCOTUS would likely interpret the language to mean that it’s not proportional representation if every state has the same number of representatives with such widely diverse populations. [Previous page](https://boards.straightdope.com/t/would-this-be-constitutional/640426.md?page=1) [Next page](https://boards.straightdope.com/t/would-this-be-constitutional/640426.md?page=3)