Article the First

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Article the First (also referred to as the Congressional Apportionment Amendment) is the first proposed amendment to the United States Constitution though it has not yet been ratified. It was the first of twelve amendments produced by the 1st Congress on September 25, 1789, and submitted to the state legislatures for ratification pursuant to Article V of the Constitution.

Text

Article the first... 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 more than one Representative for every fifty thousand persons. (emphasis added)^[1]

Analysis

Under the terms of the proposed amendment, while the U.S. population was below 3 million, each state would initially receive one Representative in the United States House of Representatives for every 30,000 of the state's persons. While it was between 3 and 4 million, the total number of representatives would be at least 100. While it was between 4 and 8 million, each state's representation in the House would be re-calculated with (at least) one Representative for every 40,000 of the state's persons; however, the total number of U.S. Representatives must still be at least 100.

If the total number of U.S. Representatives would amount to more than 200, then each state's representation in the House would be re-calculated as (at most) one Representative for every 50,000 of the state's persons; however, the total number of U.S. Representatives must still be at least 200.

Were the amendment ratified while the 2010 United States Census population figure of 308,745,538 was current, the 1:50,000 Representative to constituent ratio maximum would allow up to 6175 Representatives. This is more than 14 times the number of 435 set in Public Law 62-5, which as of the 2010 Census translated on average to each Representative in Congress representing 709,760 persons ^[2]. However,Public Law 62-5 is not any different in wording or scope than the previous reapportionment acts of 1881, 1891, and 1901. It was anticipated that the House would continue to grow every 10 years following each census; that there would be a new "reapportionment act" after each census as there had always been.

When the U.S. population was between 8 and 10 million, the maximum number of representatives would be less than the minimum.

Algorithmic Interpretation

If the single word "more" as altered by the joint Senate-House committee is changed back to "less" as was the text of the original formulation then it is possible to interpret this amendment as an algorithm that would have set a minimum representation for the people in their House of Representatives as the population of the nation increased.

Article the First Algorithm

Representatives	District Size (thousands)	Population Range (millions)
0-100	30	0-3
100-200	40	4-8
200-300	50	10-15
300-400	60	18-24
400-500	70	28-35
500-600	80	40-48
600-700	90	54-63
700-800	100	70-80
800-900	110	88-99
900-1000	120	108-120
1000-1100	130	130-143
1100-1200	140	154-168
1200-1300	150	180-195
1300-1400	160	208-224
1400-1500	170	238-255
1500-1600	180	270-288
1600-1700	190	304-323
1700-1800	200	340-360

The 2010 Census figure would then equate to a district size of 190,000, with roughly 1,625 U.S Representatives.

Purpose

This amendment was proposed as a means to ensure a minimum representation for the common people in the new government defined by United States Constitution.^{[3][4][5][6][7][8]} In the First Congress, amendments properly addressing the issue were produced by both the House and the Senate, each providing for a minimum representation based on the expanding population of the nation, but a joint House-Senate committee, assigned the duty of compromising between the two versions, substituted the word 'more' for the word 'less,' perhaps crippling, if not reversing the intent of the amendment after the membership of the House would have increased to a level of 200.^[9]

Background and history

The original drive for this amendment was aimed at controlling the size of electoral districts. The Federalists attempted and largely succeeded in defusing the issue through their acquiescence to amendments concerning the matter beginning with the Massachusetts ratification convention. A version of Article the First was prominent among the initial twenty or so amendments that were defined by the various ratifying conventions—hence it is known as Article the First. The assurance that these amendments would be addressed in the First Congress was essential to the ratification of the new Constitutional government.

"By January 9, 1788, five states of the nine necessary for ratification had approved the Constitution: Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. But the eventual outcome remained uncertain in pivotal states such as Massachusetts, New York, and Virginia. On February 6, with Federalists agreeing to recommend a list of amendments amounting to a bill of rights, Massachusetts ratified by a vote of 187 to 168... In the next 2 months, thanks largely to the efforts of Madison and Hamilton in their own states, Virginia and New York both ratified while adding their own amendments. The margin for the Federalists in both states, however, was extremely close. Hamilton figured that the majority of the people in New York actually opposed the Constitution, and it is probable that a majority of people in the entire country opposed it. Only the promise of amendments had ensured a Federalist victory.^[10].

The original object of broader representation was compromised in the ratifying conventions in order to set forth a more concise request for amendment and, perhaps at the same time, to weaken it. Article the First was requested even ahead of a demand for what ultimately became the Bill of Rights. The electorate were concerned about both the size of electoral districts and the term of office in their House of Representatives. They wanted these districts to remain small and the term of office to remain brief, to better enable them to quickly remove representatives that did not act in such a way as the people desired. The people of the nation were already averse to constituencies (representative districts) as large as thirty thousand and there was much controversy over the issue during the ratification process. What would become Article the First and other amendments were called for by James Madison in the House on June 8, 1789. Madison's proposed text of the amendment was as follows:

"After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to [first blank], after which the proportion shall be so regulated by Congress, that the number shall be not less than [second blank], nor more than [third blank], but each state shall after the first enumeration, have at least two representatives ^[11]."

What emerged as the final House version of the amendment was as follows (emphasis added):

"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" ^[12]

Such language if interpreted as an algorithm would have created a membership in today's House of 1600 members. If interpreted as a static minimum number of representatives the language would create a House of 6000 members with today's population. That text (with the word "less") stands as the official House version of the amendment before the alteration by the joint committee.

The Senate took up the measure on September 2, 1789 and were resolved as to the following:

"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, to which number one representative shall be added for every subsequent increase of forty thousand, until representatives shall amount to two hundred, to which one representative shall be added for every subsequent increase of sixty thousand."^[13]

This language would have set the membership of today's House at either 800 (if the amendment were interpreted to define an algorithm) or 5,000 if the amendment were interpreted as a static minimum.

There is much speculation as to why the amendment was altered as it was when neither the House or Senate versions of the amendment had any such a limitation.^[9]

By 1791, the legislatures of a sufficient number of states had ratified the last ten of the twelve proposed amendments, which became the Bill of Rights, but not the first two.

The second of the twelve amendments, which concerned Congressional compensation, was ratified more than two centuries later in 1992 and belatedly became the Twenty-seventh Amendment.

Article the First, however, was ratified by the legislatures of only the following eleven states—just shy of the number required in the late 18th century.

1. New Jersey on November 20, 1789
2. Maryland on December 19, 1789
3. North Carolina on December 22, 1789
4. South Carolina on January 19, 1790
5. New Hampshire on January 25, 1790
6. New York on March 27, 1790
7. Rhode Island on June 15, 1790
8. Pennsylvania on September 21, 1791 (after rejecting it on March 10, 1790)
9. Virginia on October 25, 1791 (a few weeks prior to the date on which Virginia ratified what is today the 27th Amendment as well as those ten amendments that became the Bill of Rights on December 15 of that year)
10. Vermont on November 3, 1791 and
11. Kentucky on June 24, 1792

Although the act, on the part of state legislatures, of "rejecting" a proposed constitutional amendment has no legal recognition, such action does have political implications—the Congressional Apportionment Amendment was rejected by lawmakers in Delaware on January 28, 1790.

No action is known to have occurred with regard to this particular Amendment by legislators in Connecticut, Georgia or Massachusetts.

According to the Supreme Court's 1939 ruling in Coleman v. Miller, because there is no deadline for its ratification, Article the First is technically still pending before state lawmakers. Today, with 50 states in the Union, the legislatures of 27 more states, for a total of 38, would have to ratify the Amendment in order for it to become part of the federal Constitution. Based on the current U.S. population and the traditions governing the size of the House of Representatives, it is unlikely, however, that the legislatures of any additional states will approve it.

Currently, there are 435 members of the House of Representatives and six non-voting Delegates from the District of Columbia and the territories, which do not possess statehood status. The figure of 435 is set by statute (2 U.S.C. 2a & 2b) and the allocation of seats among the 50 states is calculated by using "method of equal proportions". The present statutes would comply with the article's final language so long as there are at least 50,000 people in each Congressional district; as apportioned after the 2000 census, even the smallest district (the lone district of Wyoming) far exceeds this number. Therefore, ratification of this article today would have no impact on the present Congressional apportionment process, though it could impact future changes to the process.

Amendments requested

• Ratification - North Carolina
• Massachusetts Ratifying Convention
• Ratification in New York

Madison on constituency size

"Should Experience or public opinion require an equal and universal suffrage for each branch of the Government such as prevails generally in the U.S., (then) a resource favorable to the rights of landed and other property, when its possessors become the Minority, may be found in the enlargement of the Election Districts for one branch of the Legislature and a prolongation of its period of service. Large districts are manifestly favorable to the election of persons of general respectability, and of probable attachment to the rights of property, over competitors depending on the personal solicitations practicable on a contracted theater. And although an ambitious candidate, of personal distinction, might occasionally recommend himself to popular choice by espousing a popular though unjust object, it might rarely happen to many districts at the same time. The tendency of a longer period of service would be, to render the Body more stable in its policy, and more capable of stemming popular currents taking a wrong direction, till reason and justice could regain their ascendancy.

Should even such a modification as the last be deemed inadmissible, and universal suffrage and very short periods of elections within contracted spheres be required for each branch of the Government, the security for the holders of property when the minority, can only be derived from the ordinary influence possessed by property, and the superior information incident to its holders; from the popular sense of justice enlarged and by a diffusive education; and from the difficulty of combining and effectuating unjust purposes throughout an extensive country; a difficulty essentially distinguishing the U.S. and even most of the individual States, from the small communities where a mistaken interest or contagious passion, could readily unite a majority of the whole under a factious leader in trampling on the rights of the Minor party"^[14].

See also

• List of amendments to the United States Constitution
• List of proposed amendments to the United States Constitution
• United States congressional apportionment

References

1. ^ "Constitutional Amendments Not Ratified". United States House of Representatives. http://www.house.gov/house/Amendnotrat.shtml. Retrieved 2007-09-30. 
2. ^ thirty-thousand.org
3. ^ "Brutus III"
4. ^ "Brutus IV "
5. ^ "Representation I"
6. ^ "Representation II"
7. ^ "Representation III"
8. ^ "Representation IV"
9. ^ ^{a b} "Journal of the House of Representatives Section I page 121"
10. ^ National Government Archives - history - July 2, 1788
11. ^ Confederation & Constitution: Bill of Rights: James Madison Proposal: Speech
12. ^ The Founders Constitution
13. ^ Journal of the Senate of the United States of America, Volume 1, Page 69
14. ^ Ralph Ketcham, The Antifederalist Papers and the Constitutional Convention Debates, page 155

• Congressional Research Service. (1992). Proposed amendments not ratified by the states. In The Constitution of the United States of America: Analysis and Interpretation. (Senate Document No. 103–6). (Johnny H. Killian and George A. Costello, Eds.). Washington, DC: U.S. Government Printing Office.

External links

• U.S. Constitution
• The Constitution of the United States of America: Analysis and Interpretation is available at:
• GPO Access - Official version of the document at the U.S. Government Printing Office.
• FindLaw – FindLaw's version of the official document; incorporates 1996 and 1998 supplements into text, but does not include prefatory material included in official version.