True enough. See the discussion here about the Clemons case. 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.
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.
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’?
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.”
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.
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.
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.
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.
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?
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.
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.
