The Congressional Apportionment Amendment (originally titled Article the First) is a proposed amendment to the United States Constitution that addresses the number of seats in the House of Representatives. It was proposed by Congress on September 25, 1789, but was never ratified by the requisite number of state legislatures. As Congress did not set a time limit for its ratification, the Congressional Apportionment Amendment is still technically pending before the states.
In the 1st United States Congress, James Madison put together a package of twelve constitutional amendments designed to address the concerns of Anti-Federalists, who were suspicious of federal power under the new constitution. The Congressional Apportionment Amendment is the only one of those amendments that was never ratified; ten of Madison's proposed amendments were ratified as the Bill of Rights, while the other amendment proposed by Madison was ratified as the Twenty-seventh Amendment in 1992. A majority of the states did ratify the Congressional Apportion Amendment and, by the end of 1791, the amendment was just one state short of adoption. However, no state has ratified the amendment since 1792.
The amendment lays out a mathematical formula for determining the number of seats in the House of Representatives. It would initially have required one representative for every 30,000 constituents, with that number eventually climbing to one representative for every 50,000 constituents. As the amendment was never passed, Congress has set the size of the House of Representatives by statute. Throughout the 19th century, the House continually gained new members, but, with one brief exception, there have been 435 voting members in the House of Representatives since the passage of the Apportionment Act of 1911.
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.
The "ideal" number of seats in the House of Representatives has been a contentious issue since the country's founding. Initially, delegates to the 1787 Constitutional Convention set the representation ratio at one representative for every 40,000 people. Upon the suggestion of George Washington, the ratio was changed to one representative for every 30,000 people. This was the only time Washington voiced an opinion on any of the actual issues debated during the convention.
In Federalist No. 55, James Madison argued that the size of the House of Representatives has to balance the ability of the body to legislate with the need for legislators to have a relationship close enough to the people to understand their local circumstances, that such representatives' social class be low enough to sympathize with the feelings of the mass of the people, and that their power be diluted enough to limit their abuse of the public trust and interests.
...first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many;...
Anti-Federalists, who opposed the Constitution's ratification, noted that there was nothing in the document to guarantee that the number of seats in the House would continue to represent small constituencies as the general population of the states grew. They feared that over time, if the size remained relatively small and the districts became more expansive, that only well-known individuals with reputations spanning wide geographic areas could secure election. It was also feared that those in Congress would, as a result, have an insufficient sense of sympathy with and connectedness to ordinary people in their district.
This concern was evident in the various state ratifying conventions, where several specifically requested an amendment to secure a minimum size for the House of Representatives. Virginia's ratification resolution proposed
That there shall be one representative for every thirty thousand, according to the Enumeration or Census mentioned in the Constitution, until the whole number of representatives amounts to two hundred; after which that number shall be continued or encreased [sic] as the Congress shall direct, upon the principles fixed by the Constitution by apportioning the Representatives of each State to some greater number of people from time to time as population encreases [sic].
Anti-Federalist Melancton Smith declared at the New York ratifying convention that
We certainly ought to fix, in the Constitution, those things which are essential to liberty. If anything falls under this description, it is the number of the legislature.
Federalists, who supported the Constitution's ratification, reassured those opposing its ratification by agreeing that the new government should immediately address Anti-Federalist concerns and consider amending the Constitution. This reassurance was essential to the ratification of the new form of government.
Legislative and ratification history
An amendment establishing a formula for determining the appropriate size of the House of Representatives and the appropriate apportionment of representatives among the states was one of several proposed amendments to the Constitution introduced first in the House on June 8, 1789, by Representative James Madison of Virginia:
That in Article I, Section 2, Clause 3, these words be struck out, to wit: "The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;" and in place thereof be inserted these words, to wit: "After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to—, after which the proportion shall be so regulated by Congress, that the number shall never be less than—, nor more than—, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto".
This, along with Madison's other proposals, was referred to a committee consisting of one representative from each state. After Madison's proposals emerged from committee, Representative Fisher Ames of Massachusetts, proposed a differing apportionment amendment in which the minimum apportionment ratio increased from 30,000 to 40,000 per Representative following a subsequent census. The House approved Ames' changes on August 21, 1789 and, on August 24, passed it and sixteen other articles of amendment. The proposals next went to the Senate, which made 26 substantive alterations. On September 9, 1789, the Senate approved a package of twelve proposed amendments. Changed in this amendment was the apportionment formula to be followed once the number of House members reached 100.
|A comparison of the two versions of the amendment|
(The substitute Senate language and the affected House language are both in red with italics.)
On September 21, 1789, a conference committee convened to resolve the numerous differences between the two Bill of Rights proposals. On September 24, 1789, the committee issued its report that finalized 12 Constitutional amendments for the House and Senate to consider. Regarding the apportionment amendment, the House passed version prevailed with one change: the final instance of the word "less" was changed to "more". The amendments were finally approved by both Houses on September 25, 1789.
Having been approved by Congress the twelve Bill of Rights amendments were sent to the states for ratification. This proposed amendment was placed first among the twelve and was ratified by the legislatures of the following states:
- New Jersey: November 20, 1789
- Maryland: December 19, 1789
- North Carolina: December 22, 1789
- South Carolina: January 19, 1790
- New Hampshire: January 25, 1790
- New York: February 24, 1790
- Rhode Island: June 7, 1790
- Pennsylvania: September 21, 1791 (after rejecting it on March 10, 1790)
- Virginia: November 3, 1791
- Vermont: November 3, 1791
- Kentucky: June 27, 1792
When originally submitted to the states, nine ratifications would have made this amendment part of the Constitution. That number rose to ten on May 29, 1790, when Rhode Island ratified the Constitution. It rose to eleven on March 4, 1791, when Vermont joined the Union. By the end of 1791, the amendment was only one state short of adoption. However, when Kentucky attained statehood on June 1, 1792, the number of necessary ratifications climbed to twelve, and, even though Kentucky ratified the amendment that summer (along with the other eleven amendments), it was still one state short. No additional states ratified this amendment. With 50 states, 27 additional ratifications are necessary to reach the required threshold of 38 ratifications needed for this amendment to become part of the Constitution.
The lower house of the Connecticut General Assembly approved the amendment along with ten others in October 1789, but the upper house of the Assembly deferred taking any action on the amendments until after the next election. In May 1790, following that election, the lower house rejected the amendment while approving the ten amendments that would become the Bill of Rights. The upper house then approved all 12 of the amendments, hindering Connecticut's ratification effort with both houses unable to reconcile their ratification measures.
Eugene Martin LaVergne, a former attorney and pro se litigant, claimed in 2011 to have found evidence that the proposed amendment was ratified by Connecticut in May 1790, but that the ratification was never forwarded to Congress. This would have been sufficient to make the proposed amendment part of the Constitution following the ratifications of Virginia and Vermont in 1791. LaVergne argued the point in a lawsuit against a number of federal officials, but the case was dismissed. The dismissal was summarily affirmed per curiam by a panel of the Third Circuit, rejecting LaVergne's argument on standing and political question grounds. The U.S. Supreme Court denied LaVergne's petition for certiorari, ending the case. However, LaVergne continues to press the theory.
Although the initial House and Senate versions of the amendment were clear in establishing a formula for determining the minimum number of representatives, the final version of the amendment was not. As a result of the last-minute wording change made by the House – less to more – an apparent hole was left in the mathematical formula for how many representatives would be apportioned among the states after each census. The amendment seemingly makes any number of representatives unconstitutional whenever the population of the country is between eight million and ten million.
- Section 2 of the Fourteenth Amendment (superseding Article I, Section 2, Clause 3, which includes the Three-Fifths Compromise)
- United States congressional apportionment
- Apportionment Act of 1792
- Reapportionment Act of 1929
- During the period between 1959 and 1962, there were 437 members due to the admission of Alaska and Hawaii.
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