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803sccdantes
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Some Court Cases About The 435 Number

Post by 803sccdantes »

I was a little bored today so I looked up some cases where a citizen sued the government about the 435 limitation. Here's a quick list and a synopsis of what happened:

Wendelken v. Bureau of the Census, N.Y.,
N.Y. 582 F.Supp. 342 D.C.N.Y.,1983. Sep 21, 1983

In this case, the plaintiff argued that "even if Congress has discretion by virtue of Article I to limit the number of representatives as it has, that discretion is constrained by the fifth amendment's guarantee of equal protection of the laws, Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1976), and the principle of one person one vote that equal protection doctrine embodies, Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). Wendelken contends that in setting the size of the House of Representatives, Congress is constitutionally required to ensure that congressional districts are "as equal as they can possibly be."


The court didn't buy his argument. Here's their conclusion:

"Although somewhat novel, this argument has no merit. The inequality of which Wendelken complains inheres in our constitutional structure. So long as the Constitution requires apportionment of seats in the House of Representatives among the states, inequalities of voting power of the kind mentioned above are inevitable in view of population differences; the question is a matter of degree. Wendelken argues that this Court should order the Congress to ameliorate inequality of voting power within our constitutional framework by creating more seats in the national legislature. He cites no decision, and this Court is aware of no decision, that has ordered such a remedy. The decision to limit the size of the House of Representatives to 435 members is expressly committed to the discretion of Congress.
The government's motion to dismiss is granted."

Whelan v. Cuomo
415 F.Supp. 251 D.C.N.Y. 1976 June 15, 1976
Here's some quotes that will give you a quick synopsis of the arguments, and the court's holding:

"Simply put, the plaintiff's complaint avers that, given the present population of the nation, section 2 of Title 2, in fixing the number of members of the House of Representatives at 435, violates Article I, section 2, clause 3 of the Constitution. Article I, section 2, clause 3 deals first with the apportionment of representatives and direct taxes among the states, then provides for a census (‘enumeration’) every ten years, and then specifies, in relevant part:
'The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative'; . . ."

"On its face, the language of the Constitution has not been contravened here. The population of the United States as of 1970, the year of the last official federal census, was 203,184,772. The number of representatives therefore does not exceed one for every 30,000, there being approximately one for every 467,000. Plaintiff does not dispute these simple mathematics. Rather, plaintiff contends that the present ratio of one representative for every 467,000 contravenes the spirit, if not the letter, of Article I, section 2, clause 3 of the Constitution. However, an examination of the history of the Constitutional Convention and the surrounding debate shows that plaintiff's position is without merit."

The court then lists an exhaustive series of quotations from the Constitutional Convention about how the delegates came to the wording they did. It continues:

"The historical record of the Constitutional Convention supports several conclusions. First, the bicameral legislature reflects a basic compromise between the small states and the larger ones. Second, there was considerable dissatisfaction with the small number of representatives in the House, but all efforts to increase the original number were defeated. Third, Congress was vested with authority to expand the number of members in the House and charged with the duty to apportion the membership among the several states. Finally, Congress was given considerable flexibility in determining the actual number of representatives so long as the total did not exceed one representative for every 30,000 inhabitants. This was done as a safeguard against the dangers of too numerous a body. Several members of the convention indicated subsequently a belief that the House would add one member for each additional 30,000 population as the nation grew. 3 Farrand 337, 358. James Wilson *257 of Pennsylvania spoke in favor of the one for every 30,000 ratio of representation at his state's ratification convention by speculating that ‘the House of Representatives will, within a single century, consist of more than six hundred members.’ 3 Farrand 159-60. James Madison also speculated on the future size of the House. He predicted that in 25 years the House would have 200 members; in 50 years, 400 members. The Federalist No. LV. Messrs. Wilson's and Madison's statements rested on two assumptions, only one of which proved correct: the nation's population did grow at a phenomenal pace; however, Congress has never seen fit to exercise its full prerogative and establish a representative for every 30,000 inhabitants. The flexibility to establish fewer representatives than the one for every 30,000 inhabitants which the constitution allows is implicit in Mr. Gorham's comment when he sponsored the motion to amend the provision to read: ‘The number of representatives shall not exceed one for every thirty thousand, . . .’ He stated: ‘This would not . . . establish . . . an absolute rule, but only give Congress a greater latitude which could not be thought unreasonable.’ The remark gains added weight because it is one of the few remarks addressed to this provision after the unexplained addition of the ‘not exceeding’ language.

One final source is noteworthy as it bears not only on the intent of the Constitutional Convention but it eloquently defends the decision ultimately made by Congress in 2 U.S.C. s 2 to set the membership of the House of Representatives below the maximum that Article I, section 2, clause 3 permits. James Madison separately addressed each of four criticisms of the ‘number of which the House of Representatives is to consist’ in four letters in the Federalist Papers (Nos. LV-LVIII)

The charges exhibited against it are, 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 sympathise 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; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives.

The Federalist No. LA. As to the charge that the membership of the House was too small to be a safe depository of the public interest, Madison, the man who had sought to double the number, wrote:

Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. . . .

The Federalist No. LV.

Mr. Madison concluded with some remarks on the dangers of an excessive number of representatives in the House.

One observation, however, I must be permitted to add on this subject as claiming, in my judgment, a very serious attention. It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendancy of passion over reason. In the next place, the larger the number, the *258 greater will be the proportion of members of limited information and of weak capacities. . . . On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. . . . The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will for ever admonish them that, on the contrary, after securing a sufficient number for the purposes of safety, of local information, and of diffusive sympathy with the whole society, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed. (Emphasis in original).

The Federalist No. LVIII.

[6] Thus both the historical background and the plain meaning of the Constitution support the power of Congress to fix the number of representatives at a figure less than the maximum of one for every 30,000 inhabitants. Plaintiff quotes language from Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) concerning the importance of a citizen's vote for law-makers, but the case dealt only with the need for equality in population of Congressional districts, and lends no support to plaintiff's cause.

[7] The lack of merit in plaintiff's argument is so obvious that a single judge can reject it without convening a three-judge court. Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858-59, 35 L.Ed.2d 36 (1973); Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4-5, 78 L.Ed. 152 (1933).

It is ORDERED that the plaintiff's motions to convene a three-judge court and for summary judgment are denied; and it is further

ORDERED that the defendant's motion for summary judgment is granted, and the complaint is dismissed."


Hope this helps us formulate some arguments against some of the points the court made.
sly_devyl
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Re: Some Court Cases About The 435 Number

Post by sly_devyl »

Do you have these cases available? I would like to read their text in their entirety. Also, did they make it to the US Supreme Court?
Elias
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Re: Some Court Cases About The 435 Number

Post by Elias »

The New York Times has a front page article today on expanding the size of the House and the law suit:
http://www.nytimes.com/2009/09/18/us/po ... er.html?hp
They also provide an opportunity for readers to comment, and 128 have so far.
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Paul
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Re: Some Court Cases About The 435 Number

Post by Paul »

Excellent research. Thank you! If we could get pdf's or links or something added that would really be awesome. Even transcripts, to evaluate the various arguments made.
HouseSizeWonk
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Re: Some Court Cases About The 435 Number

Post by HouseSizeWonk »

Robert P. WHELAN, Plaintiff, v. Mario CUOMO, Secretary of State of the State of New York, Defendant

No. 75-C-549

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

415 F. Supp. 251

June 15, 1976

JUDD, District Judge.

MEMORANDUM AND ORDER

In this civil rights action plaintiff seeks to enjoin the election of Congressmen from New York, on the theory that 2 U.S.C. § 2, fixing the number of representatives at 435, is unconstitutional.

Plaintiff seeks the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284, and summary judgment pursuant to F.R.Civ.P. Rule 56. The defendant has filed his own motion for summary judgment.

Facts

Plaintiff is a citizen of the United States of America and a resident of New York State. Plaintiff has been an eligible voter since 1944 and avers that he has never failed to vote in an election for a member of the House of Representatives. The defendant is the Secretary of State of the State of New York and, as such, is charged with the responsibility to

. . . prepare a general certificate under the seal of the state and attested by him as secretary thereof, addressed to the house of representatives of the United States, in that congress for which any person shall have been chosen, of the due election of all persons chosen at that election as representatives of this state in congress, and shall transmit the same to the house of representatives at its first meeting. . .

N.Y. Election Law § 278(4).

The plaintiff seeks to obtain a declaratory judgment that 2 U.S.C. §§ 2 and 2a are unconstitutional and to enjoin the defendant from performing his responsibility under § 278(4) of the New York Election Law. Section 2 of Title 2 of the United States Code fixes the number of members of the House of Representatives at 435. Section 2a provides the method of reapportioning this number of representatives among the several states in accordance with their population as determined by the decennial census.

Simply put, the plaintiff's complaint avers that, given the present population of the nation, section 2 of Title 2, in fixing the number of members of the House of Representatives at 435, violates Article I, section 2, clause 3 of the Constitution. Article I, section 2, clause 3 deals first with the apportionment of representatives and direct taxes among the states, then provides for a census ("enumeration") every ten years, and then specifies, in relevant part:
The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; . . .
The balance of clause 3 sets forth the initial apportionment of 65 representatives.

The population of the United States was over 203 million at the time of the 1970 census. If there were one representative for each 30,000 of population, the House of Representatives would consist of over 6,700 members.

Discussion

Plaintiff's motions may be defeated on at least two procedural grounds even before the court reaches the merits. First, in an action which attacks the constitutionality of an act of Congress, notice must be given to the United States Attorney General and the United States Attorney. 28 U.S.C. § 2284(2). This was not done. Second, the New York Secretary of State exercises only a ministerial function in certifying the results of the votes cast for Congressmen. Matter of Hart, 161 N.Y. 507, 55 N.E. 1058 (1900). His functions concerning Congressional elections are not comparable to those of the Secretary of State of Tennessee concerning state legislators. Therefore, there is no significance in the fact that the Secretary of State of Tennessee was the defendant in Baker v. Carr, 179 F. Supp. 824 (M.D.Tenn.1959), reversed, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). The result of an injunction against the New York Secretary of State would be simply to leave New York with no representatives in Congress, since he would have no power to fix a different number to be elected. The answer to the complaint presents a defense of failure to join an indispensable party, although this was not pressed in defendant's brief. F.R.Civ.P. 19.

Mindful of the need for a district court to canvass all issues that may be presented on appeal, the court will address itself to the constitutional issue in spite of the preliminary barriers to plaintiff's success in the action.

On its face, the language of the Constitution has not been contravened here. The population of the United States as of 1970, the year of the last official federal census, was 203,184,772. The number of representatives therefore does not exceed one for every 30,000, there being approximately one for every 467,000.

Plaintiff does not dispute these simple mathematics. Rather, plaintiff contends that the present ratio of one representative for every 467,000 contravenes the spirit, if not the letter, of Article I, section 2, clause 3 of the Constitution. However, an examination of the history of the Constitutional Convention and the surrounding debate shows that plaintiff's position is without merit.

The provision which ultimately became the relevant portion of Article I, section 2, clause 3 is an example of several major compromises reached at the Constitutional Convention. An understanding of these broader issues is helpful to put the provision here into context. The first of these themes is the struggle between the large, more populous states and the smaller states. The division between the Senate and the House of Representatives reflects this basic tension. The Senate guaranteed some protection for the smaller states by giving each state equal weight regardless of its population, while the House was to reflect the interests of the people by distributing representatives according to each state's population.

The number of representatives allotted to each state was intricately tied to the basis for representation; specifically, whether wealth or population, or some combination of the two, was an appropriate basis, and how slaves should be counted for this purpose. A certain community of interests was achieved by tying the apportionment of representatives and direct taxes to the same standard.

Max Farrand's The Records of the Federal Convention of 1787 is the most comprehensive source for the actual debates at the Constitutional Convention (hereinafter -- Farrand).

On July 5, 1787, Elbridge Gerry reported to the Convention a series of resolutions of the Grand Committee. The first resolution read in relevant part:
That in the first branch of the Legislature each of the States now in the Union be allowed one Member for every forty thousand inhabitants of the description reported in the seventh resolution of the Committee of the whole House.
1 Farrand 524, 526. The Gerry report on behalf of the Grand Committee was the first officially proposed ratio of representation.

The resolutions of the Committee of the Whole appeared in the Journal of the Convention on June 13 and represented a revision of the Virginia Plan submitted by Mr. Randolph to the Convention on May 29. Neither the Virginia Plan nor the resolutions of the Committee of the Whole had detailed any actual ratio of representation. 1 Farrand 20, 229-30.

The Gerry report triggered the first of a series of debates on what the ratio of representation in the House of Representatives should be, and the basis for any such ratio. The initial focus of that debate was whether property or population was an appropriate basis for any ratio to be fixed. 1 Farrand 536-37, 541-42. Gouverneur Morris voiced some concern that any ratio based on population would ultimately result in a shift of power to the "Western Country" to the detriment of the Atlantic States.

The statement of Rufus King of Massachusetts in support of a motion to refer the ratio of representation portion of the Gerry report to a special committee is noteworthy. James Madison's notes reflect the following:
He [Mr. King] thought also that the Ratio of Representation proposed could not be safely fixed, since in a century & a half our computed increase of population would carry the number of representatives to an enormous excess;
1 Farrand 541. The motion to commit was passed, 7 to 3, and a committee of five (G. Morris, Gorham, Randolph, Rutledge and King) unanimously appointed on July 6, 1787. 1 Farrand 538, 542.

The Morris Committee of five reported back to the Convention on Monday, July 9th. The Morris Committee report urged that the first branch consist of 56 members (with the distribution amongst the several states specifically set forth) with the power "to augment the number of representatives: . . . upon the principles of . . . wealth and number of inhabitants." 1 Farrand 557-58. Mr. Gorham, a member of the committee of five, stated two objections to the ratio of one member for every 40,000 inhabitants:
The 1st. was that the Representation would soon be too numerous: the 2d. that the Westn. States who may have a different interest, might if admitted on that principal by degrees, out-vote the Atlantic. Both these objections are removed. The number will be small in the first instance and may be continued so, and the Atlantic States having ye. Govt. in their own hands, may take care of their own interest, by dealing out the right of Representation in safe proportions to the Western States. These were the views of the Committee.
1 Farrand 560. A vote authorizing the legislature to alter the number from time to time according to the Committee's principle of wealth and inhabitants passed 9 to 2. 1 Farrand 560. The original number of 56 representatives and their distribution among the several states were committed to a grand committee of thirteen, one delegate from each state. 1 Farrand 560-62.

Mr. King reported on behalf of this grand committee on July 10th. The King report proposed a first branch of 65 representatives (with the specific distribution set forth). 1 Farrand 563, 566. Various motions to amend the King report were made and defeated. Of particular interest is Mr. Madison's motion to double the number of representatives allowed to each state. His arguments in favor of the motion are quite similar to the position articulated by plaintiff in this case:
They would not possess enough of the confidence of the people, and wd. be too sparsely taken from the people, to bring with them all the local information which would be frequently wanted. Double the number will not be too great even with the future additions from New States.
1 Farrand 568-69. The opposition pointed out the added expense and the dangers of excessive number reducing the body's efficiency. Messrs. Gerry and Read argued that the highest number of representatives might be fixed, thereby removing any danger of excess. Neither suggested an appropriate figure. Mr. Madison's motion was defeated 9 to 2. 1 Farrand 569-70.

The first step toward resolution was reached when the Convention unanimously agreed on July 12th that "direct Taxation ought to be proportioned according to representation." 1 Farrand 589. Having linked the burden of direct taxation and the advantage of representation to the same formula, the Convention on July 13th adopted the principle of population to govern both, 9 to 0. 1 Farrand 598-606.

On July 16th the Convention approved by a vote of 5 to 4 the report from the grand committee as amended. The resolution fixed the number of representatives in the first branch at 65, with the same distribution as urged in the King report of July 10th. The resolution did not fix a specific ratio of representation but simply adopted the "principle . . . of inhabitants" for both the number of representatives in the House and for the imposition of direct taxes. 2 Farrand 13-14.

On July 23, 1787 the resolution dealing with representation in the first branch of Congress was referred, along with a full set of resolutions, to a Committee of Detail. 2 Farrand 129.

Various other drafts and papers were submitted to the Committee of Detail for their consideration. An outline of the Pinckney Plan which was submitted to the Committee urged a ratio of representation without suggesting one. 2 Farrand 135. A document in the handwriting of Mr. Randolph was submitted suggesting that "The house of delegates shall never be greater in number than . . . according to the ratio, recommended by congress." 2 Farrand 138-39.

On August 6th, Mr. Rutledge delivered the report of the Committee of Detail. The relevant provisions on representation in the House of Representatives fixed the original number at 65 members and a ratio of one for every 40,000 inhabitants thereafter. 2 Farrand 178.

On September 8th Hugh Williamson of North Carolina proposed a motion to reconsider the number of members in the House and to increase their number by half. The motion was a less ambitious effort to achieve the same purpose as the Madison motion of July 10th. In fact, Mr. Madison seconded the Williamson motion. Madison's notes for September 8 reflect Alexander Hamilton's arguments in favor of the motion, noteworthy here for their consistency with the plaintiff's position in this case.
Col: Hamilton expressed himself with great earnestness and anxiety in favor of the motion. He avowed himself a friend to a vigorous Government, but would declare at the same time, that he held it essential that the popular branch of it should be on a broad foundation. He was seriously of opinion that the House of Representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties. He remarked that the connection between the President & Senate would tend to perpetuate him, by corrupt influence. It was the more necessary on this account that a numerous representation in the other branch of the Legislature should be established.
2 Farrand 553-54. The motion was defeated 5 to 6. 2 Farrand 554, 612.

On the same day, September 8th, a Committee of Style and Arrangement was appointed. 2 Farrand 553. On September 10 a 23 article document was referred to the Committee. Article IV, sections 3 and 4 in the document tracked the language of the Committee of Detail's report with one significant and unexplained difference. Instead of setting the rate of representation at "one for every forty thousand" inhabitants, the section as reported to the Committee of Style stated that the number of representatives should be set by a rule "not exceeding the rate of one for every forty thousand. Provided that every State shall have at least one representative." 2 Farrand 566. (Emphasis added).

The Report of the Committee of Style was issued on September 12, 1787. Article I, section 2, clause (b) stated in relevant part:
The number of representatives shall not exceed one for every forty thousand, but each state shall have at least one representative . . .
2 Farrand 591.

On September 17, 1787, the last day of the Constitutional Convention, Mr. Gorham (who had been a member of the Committee of Detail) rose to move what proved to be the last change in the text of the constitution before its adoption. His motion was to strike "40,000" and insert in its place "30,000" in the ratio of representation. "This would not he remarked establish that as an absolute rule, but only give Congress a greater latitude which could not be thought unreasonable." George Washington, president of the Convention, spoke in favor of this change. It was the only occasion during the entire Convention that he expressed his personal views. 2 Farrand 644. The motion carried unanimously, 2 Farrand 644, in part at least in deference to the judgment of Mr. Washington. 3 Farrand 337, 358.

The change was apparently in response to the continued criticism of the smallness of the membership of the House of Representatives. 2 Farrand 563, 638.

The historical record of the Constitutional Convention supports several conclusions. First, the bicameral legislature reflects a basic compromise between the small states and the larger ones. Second, there was considerable dissatisfaction with the small number of representatives in the House, but all efforts to increase the original number were defeated. Third, Congress was vested with authority to expand the number of members in the House and charged with the duty to apportion the membership among the several states. Finally, Congress was given considerable flexibility in determining the actual number of representatives so long as the total did not exceed one representative for every 30,000 inhabitants. This was done as a safeguard against the dangers of too numerous a body. Several members of the convention indicated subsequently a belief that the House would add one member for each additional 30,000 population as the nation grew. 3 Farrand 337, 358. James Wilson of Pennsylvania spoke in favor of the one for every 30,000 ratio of representation at his state's ratification convention by speculating that "the House of Representatives will, within a single century, consist of more than six hundred members." 3 Farrand 159-60. James Madison also speculated on the future size of the House. He predicted that in 25 years the House would have 200 members; in 50 years, 400 members. The Federalist No. LV. Messrs. Wilson's and Madison's statements rested on two assumptions, only one of which proved correct: the nation's population did grow at a phenomenal pace; however, Congress has never seen fit to exercise its full prerogative and establish a representative for every 30,000 inhabitants. The flexibility to establish fewer representatives than the one for every 30,000 inhabitants which the constitution allows is implicit in Mr. Gorham's comment when he sponsored the motion to amend the provision to read: "The number of representatives shall not exceed one for every thirty thousand, . . ." He stated: "This would not . . . establish . . . an absolute rule, but only give Congress a greater latitude which could not be thought unreasonable." The remark gains added weight because it is one of the few remarks addressed to this provision after the unexplained addition of the "not exceeding" language.

One final source is noteworthy as it bears not only on the intent of the Constitutional Convention but it eloquently defends the decision ultimately made by Congress in 2 U.S.C. § 2 to set the membership of the House of Representatives below the maximum that Article I, section 2, clause 3 permits. James Madison separately addressed each of four criticisms of the "number of which the House of Representatives is to consist" in four letters in the Federalist Papers (Nos. LV-LVIII)
The charges exhibited against it are, 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; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives.
The Federalist No. LV. As to the charge that the membership of the House was too small to be a safe depository of the public interest, Madison, the man who had sought to double the number, wrote:
Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. . . .
The Federalist No. LV.

Mr. Madison concluded with some remarks on the dangers of an excessive number of representatives in the House.
One observation, however, I must be permitted to add on this subject as claiming, in my judgment, a very serious attention. It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendancy of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. . . . On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. . . . The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will for ever admonish them that, on the contrary, after securing a sufficient number for the purposes of safety, of local information, and of diffusive sympathy with the whole society, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed. (Emphasis in original).
The Federalist No. LVIII.

Thus both the historical background and the plain meaning of the Constitution support the power of Congress to fix the number of representatives at a figure less than the maximum of one for every 30,000 inhabitants. Plaintiff quotes language from Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964) concerning the importance of a citizen's vote for lawmakers, but the case dealt only with the need for equality in population of Congressional districts, and lends no support to plaintiff's cause.

The lack of merit in plaintiff's argument is so obvious that a single judge can reject it without convening a three-judge court. Goosby v. Osser, 409 U.S. 512, 518, 93 S. Ct. 854, 858-59, 35 L. Ed. 2d 36 (1973); Ex parte Poresky, 290 U.S. 30, 32, 54 S. Ct. 3, 4-5, 78 L. Ed. 152 (1933).

It is ORDERED that the plaintiff's motions to convene a three-judge court and for summary judgment are denied; and it is further

ORDERED that the defendant's motion for summary judgment is granted, and the complaint is dismissed.
Last edited by HouseSizeWonk on Tue Sep 22, 2009 11:39 am, edited 1 time in total.
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JEQuidam
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Re: Some Court Cases About The 435 Number

Post by JEQuidam »

HouseSizeWonk wrote:Robert P. WHELAN, Plaintiff, v. Mario CUOMO, Secretary of State of the State of New York, Defendant

No. 75-C-549

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
A few days ago I added a link to Apportionment.us from TTO's home page.

I was thinking of setting up a separate thread or forum just for that lawsuit.
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Re: Some Court Cases About The 435 Number

Post by HouseSizeWonk »

Whelan is from 1976, it isn't the Apportionment.us case; someone in this thread had asked for its text, though, so I provided it. Apportionment.us is doomed to failure, for good reason; whatever your feeling about the size of the House (and I am certainly pro-enlargement), it is not the place of the federal judiciary to govern it. As was said in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 619 (1842) "[Congress] has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby. The end being required, it has been deemed a just and necessary implication, that the means to accomplish it are given also; or, in other words, that the power flows as a necessary means to accomplish the end. Thus, for example, although the constitution has declared, that representatives shall be apportioned among the states according to their respective federal numbers; and for this purpose, it has expressly authorized congress, by law, to provide for an enumeration of the population every ten years; yet the power to apportion representatives, after this enumeration is made, is nowhere found among the express powers given to congress, but it has always been acted upon, as irresistibly flowing from the duty positively enjoined by the constitution." This seems to pretty squarely fall within the confines of a "political question" which the courts should not address, as defined in Baker v. Carr, 369 U.S. 186, 217 (1962): "Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department."
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Re: Some Court Cases About The 435 Number

Post by HouseSizeWonk »

Martin E. WENDELKEN, Plaintiff, v. BUREAU OF THE CENSUS, N.Y., N.Y., Director of the Bureau of the Census Bruce Chapman, Secretary of the Department of Commerce Malcolm Baldrige, Attorney General of the United States William French Smith, Department of Justice, Clerk of the House of Representatives Benjamin J. Guthrie, Thomas P. O'Neill, Jr., Speaker of the House of Representatives, Defendants

No. 83 Civ. 3111

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

582 F. Supp. 342

September 21, 1983

EDWARD WEINFELD, District Judge.

Martin E. Wendelken, a citizen of New Jersey and the plaintiff in this action, seeks an order overturning the Act of August 8, 1911, ch. 5 §§ 1, 2, 37 Stat. 13, 14, which provides that the House of Representatives shall be constituted by 435 members. These seats are apportioned among the states by population, consistent with the rule that no state shall receive fewer than one representative. 2 U.S.C. § 2a (1976). The government moves to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

Wendelken takes no issue with the method of apportionment. Rather, he claims that the House of Representatives is too small. He argues that Article I, section 2, clause 3 of the Constitution mandates allocation of a representative in Congress to every 30,000 residents of a state, so long as no state is unrepresented.

As noted in Judge Judd's well-researched opinion in Whelan v. Cuomo, 415 F. Supp. 251 (E.D.N.Y.1976), such an argument misconstrues the plain meaning of the Constitution, which states that "the number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative," and ignores the history leading to adoption of the Constitution. 415 F. Supp. 258. To the extent Wendelken relies on such an argument, the Court dismisses his complaint for the reasons stated by Judge Judd.

Wendelken claims, alternatively, that even if Congress has discretion by virtue of Article I to limit the number of representatives as it has, that discretion is constrained by the fifth amendment's guarantee of equal protection of the laws, Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225, 1228 n. 2, 43 L. Ed. 2d 514 (1975), and the principle of one person one vote that equal protection doctrine embodies, Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964).

Wendelken contends that in setting the size of the House of Representatives, Congress is constitutionally required to ensure that congressional districts are "as equal as they can possibly be." Claiming that Congress has failed in its duty, Wendelken points to disparities among the sizes of congressional districts in different states. For example, as Wendelken asserts, the at-large representative from South Dakota has 690,178 constituents, while each of the two representatives from Montana have 393,345. Wendelken claims his state, New Jersey, is prejudiced much like South Dakota, although to a lesser degree. The remedy to this situation, Wendelken argues, is a House of Representatives composed of roughly 7,000 members.

Although somewhat novel, this argument has no merit. The inequality of which Wendelken complains inheres in our constitutional structure. So long as the Constitution requires apportionment of seats in the House of Representatives among the states, inequalities of voting power of the kind mentioned above are inevitable in view of population differences; the question is a matter of degree. Wendelken argues that this Court should order the Congress to ameliorate inequality of voting power within our constitutional framework by creating more seats in the national legislature. He cites no decision, and this Court is aware of no decision, that has ordered such a remedy. The decision to limit the size of the House of Representatives to 435 members is expressly committed to the discretion of Congress.

The government's motion to dismiss is granted.

So ordered.
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Re: Some Court Cases About The 435 Number

Post by HouseSizeWonk »

It's worth noting that Whelan and Wendelken demonstrate that the assertion of the Apportionment.us people, that the courts have never been asked to provide the remedy of an increase in the size of the House, is false; both cases sought precisely that sort of relief.
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Re: Some Court Cases About The 435 Number

Post by TheTrucker »

HouseSizeWonk wrote:It's worth noting that Whelan and Wendelken demonstrate that the assertion of the Apportionment.us people, that the courts have never been asked to provide the remedy of an increase in the size of the House, is false; both cases sought precisely that sort of relief.

Well... I'm looking at the previous post concerning Wendelken and I see the following totally erroneous garbage:

"Although somewhat novel, this argument has no merit. The inequality of which Wendelken complains inheres in our constitutional structure. So long as the Constitution requires apportionment of seats in the House of Representatives among the states, inequalities of voting power of the kind mentioned above are inevitable in view of population differences; the question is a matter of degree. Wendelken argues that this Court should order the Congress to ameliorate inequality of voting power within our constitutional framework by creating more seats in the national legislature. He cites no decision, and this Court is aware of no decision, that has ordered such a remedy. The decision to limit the size of the House of Representatives to 435 members is expressly committed to the discretion of Congress."

This "pronouncement" simply is _WRONG_ . Nowhere in the Constitution as amended and interpreted by previous court decrees is a "decision to limit the Hose of Representatives to 435 members ... expressly committed to the discretion of the Congress". The Congress was _NOT_ originally bound by the words of the 14th amendment concerning equal protection under the law. And they are _NOW_. Those words in the 14th amendment actually enforce what was intended in the first place and is now rightfully cited in cases during the 60's.

In particular Wendelken cited Wesberry v. Sanders in which we see the following:
Supremes wrote:In reaching its landmark decision, the Supreme Court noted that Article I, Section 2 of the United States Constitution declares that representatives shall be chosen "by the People of the several States" and shall be "apportioned among the several States...according to their respective Numbers...." These words, the Court held, mean that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's."
And in none of the previous cases has the court been asked to provide a specific remedy as it has this time. To dance away from this based on it being a "political question" is also erroneous in that we have an assault on "republican government" perpetrated by two powerful political parties. To say that the courts cannot intervene is like saying the law can't break up a protection racket. It could be that the courts are corrupt or that the people arguing the case are not citing article 4-4 and all the other ammo they have. I don't like the invisibility of Westberry v. Sanders and Aricle IV section 4. Looks like an intentional muff to me.
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Re: Some Court Cases About The 435 Number

Post by HouseSizeWonk »

TheTrucker wrote:
This "pronouncement" simply is _WRONG_ . Nowhere in the Constitution as amended and interpreted by previous court decrees is a "decision to limit the Hose of Representatives to 435 members ... expressly committed to the discretion of the Congress". The Congress was _NOT_ originally bound by the words of the 14th amendment concerning equal protection under the law. And they are _NOW_. Those words in the 14th amendment actually enforce what was intended in the first place and is now rightfully cited in cases during the 60's.
I would have to disagree. The Constitution expressly says that "Representatives . . . shall be apportioned among the several states which may be included within this union, according to their respective numbers." U.S. CONST. art. I, § 2, cl. 3. Congress has the power "[t]o make all laws which shall be necessary and proper for carrying into execution . . . all . . . powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Id. § 8, cl. 18. This language has consistently been interpreted as vesting in Congress the authority to determine the size of the House of Representatives from the very earliest days of the nation. See Act of Jan. 14, 1802, ch. 1, 2 Stat. 128. The behavior of early Congresses is taken as strong evidence of what the original understanding of the Constitution's meaning was between people who were closer to the bargaining process that led to its creation. See McPherson v. Blacker, 146 U.S. 1, 27 (1892) ("[W]here there is ambiguity or doubt [in the meaning of constitutional language], or where two views may well be entertained, contemporaneous and subsequent practical construction are entitled to the greatest weight."); cf. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 279–80 (1856) ("[A] legislative construction of the constitution, commencing so early in the government, when the first occasion for [a] manner of proceeding arose, continued throughout its existence, and repeatedly acted on by the judiciary and the executive, is entitled to no inconsiderable weight upon the question whether the proceeding adopted by it was 'due process of law.'").

Although not specifically tested in the courts, this power of Congress was recognized in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 619 (1842): "[Congress] has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby. The end being required, it has been deemed a just and necessary implication, that the means to accomplish it are given also; or, in other words, that the power flows as a necessary means to accomplish the end. Thus, for example, although the constitution has declared, that representatives shall be apportioned among the states according to their respective federal numbers; and for this purpose, it has expressly authorized congress, by law, to provide for an enumeration of the population every ten years; yet the power to apportion representatives, after this enumeration is made, is nowhere found among the express powers given to congress, but it has always been acted upon, as irresistibly flowing from the duty positively enjoined by the constitution."

Moreover, in Whelan (which is quoted in this thread), the District Court did an extensive review of the Philadelphia Convention to conclude that "Congress was given considerable flexibility in determining the actual number of representatives so long as the total did not exceed one representative for every 30,000 inhabitants."

As for the equal protection argument: personally, I find it unconvincing because it is inconsistent with the Equal Protection Clause, which requires only that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1 (emphasis added). Semantically, this is not a restriction on the federal government at all. The courts have resisted this reading, by (for example) holding that segregated schools in the District of Columbia were unconstitutional in Bolling v. Sharpe, 347 U.S. 497 (1954) for the same equal protection reasons that they were found unconstitutional in Kansas in Brown v. Bd. of Educ., 347 U.S. 483 (1954). That has pretty consistently been followed since then, although the current Court is significantly more conservative than earlier Courts.
TheTrucker wrote:In particular Wendelken cited Wesberry v. Sanders in which we see the following:
Supremes wrote:In reaching its landmark decision, the Supreme Court noted that Article I, Section 2 of the United States Constitution declares that representatives shall be chosen "by the People of the several States" and shall be "apportioned among the several States...according to their respective Numbers...." These words, the Court held, mean that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's."
And in none of the previous cases has the court been asked to provide a specific remedy as it has this time. To dance away from this based on it being a "political question" is also erroneous in that we have an assault on "republican government" perpetrated by two powerful political parties. To say that the courts cannot intervene is like saying the law can't break up a protection racket. It could be that the courts are corrupt or that the people arguing the case are not citing article 4-4 and all the other ammo they have. I don't like the invisibility of Westberry v. Sanders and Aricle IV section 4. Looks like an intentional muff to me.
The whole concept of the "political question" doctrine is that certain types of assaults on republican government are only properly dealt with by branches other than the courts. You can argue that it's a poor design of government, but it would seem to flow irresistibly from the notion of separation of powers.

I think it is wrong to say that this specific remedy has never been sought; in Whelan, the petitioner sought an order compelling Congress to increase to something like 10,000 members (based on a compelled 30,000:1 ratio). And it was (properly, in my view) shot down; this is just not something that the courts should involve themselves in.

The Guaranty Clause is plainly inapplicable in this situation. First, it is not a guarantee that the federal government will be "republican," only that the federal government "shall guarantee to every State in this Union a Republican Form of Government." U.S. CONST. art. IV, § 4 (emphasis added). Moreover, the Supreme Court has made it clear that it does not consider this clause actionable in court. In another important separation of powers case, it said that, "as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." Luther v. Borden, 48 U.S. (7 How.) 1, 42 (1849). The Supreme Court similarly refused to entertain a challenge to a State referendum on Guaranty Clause grounds. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912).
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Re: Some Court Cases About The 435 Number

Post by TheTrucker »

HouseSizeWonk wrote:
TheTrucker wrote:
This "pronouncement" simply is _WRONG_ . Nowhere in the Constitution as amended and interpreted by previous court decrees is a "decision to limit the Hose of Representatives to 435 members ... expressly committed to the discretion of the Congress". The Congress was _NOT_ originally bound by the words of the 14th amendment concerning equal protection under the law. And they are _NOW_. Those words in the 14th amendment actually enforce what was intended in the first place and is now rightfully cited in cases during the 60's.
I would have to disagree. The Constitution expressly says that "Representatives . . . shall be apportioned among the several states which may be included within this union, according to their respective numbers." U.S. CONST. art. I, § 2, cl. 3. Congress has the power "[t]o make all laws which shall be necessary and proper for carrying into execution . . . all . . . powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Id. § 8, cl. 18. This language has consistently been interpreted as vesting in Congress the authority to determine the size of the House of Representatives from the very earliest days of the nation. See Act of Jan. 14, 1802, ch. 1, 2 Stat. 128. The behavior of early Congresses is taken as strong evidence of what the original understanding of the Constitution's meaning was between people who were closer to the bargaining process that led to its creation. See McPherson v. Blacker, 146 U.S. 1, 27 (1892) ("[W]here there is ambiguity or doubt [in the meaning of constitutional language], or where two views may well be entertained, contemporaneous and subsequent practical construction are entitled to the greatest weight."); cf. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 279–80 (1856) ("[A] legislative construction of the constitution, commencing so early in the government, when the first occasion for [a] manner of proceeding arose, continued throughout its existence, and repeatedly acted on by the judiciary and the executive, is entitled to no inconsiderable weight upon the question whether the proceeding adopted by it was 'due process of law.'").
You're position here is far too narrow. In Wood .v Broom the court ruled that the "equally populous, contiguous, compact" characteristics of electoral districts legislated in 1911 expired when those provisions were not set forth in the The Reapportionment Act of 1929. thus declaring that electoral districts could be anything the states wanted. Then in the 1960's the court reversed itself and ordered equally populous single member districts. And that is the current settled law. Things change and not all circumstances were foreseen by the founders. As to the number of representatives and, hence, the size of electoral districts there is no way to "divine" this from the 1790's but to note that the district size was actually reduced from 40 to 30 thousand and that there was still much concern over the size of districts as is evinced by Federalist 55 through 58 and by the creation of Article The First as requested by several of the ratification conventions.
HouseSizeWonk wrote: Although not specifically tested in the courts, this power of Congress was recognized in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 619 (1842): "[Congress] has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby. The end being required, it has been deemed a just and necessary implication, that the means to accomplish it are given also; or, in other words, that the power flows as a necessary means to accomplish the end. Thus, for example, although the constitution has declared, that representatives shall be apportioned among the states according to their respective federal numbers; and for this purpose, it has expressly authorized congress, by law, to provide for an enumeration of the population every ten years; yet the power to apportion representatives, after this enumeration is made, is nowhere found among the express powers given to congress, but it has always been acted upon, as irresistibly flowing from the duty positively enjoined by the constitution.""
Until 1922-29 what was "irresistibly flowing" was the the enlargement of the House in respect of increasing population and respect for maintaining a rational size of electoral districts. The one breach of this "flowing" prior to 1922 occurred in 1842 after the Whig party wrested the reigns of power from the Democrats.
HouseSizeWonk wrote: Moreover, in Whelan (which is quoted in this thread), the District Court did an extensive review of the Philadelphia Convention to conclude that "Congress was given considerable flexibility in determining the actual number of representatives so long as the total did not exceed one representative for every 30,000 inhabitants."
1842, 1922, and 1929 illustrate that the two party system is incompatible with the intent of the founders and that the courts must intervene to arrest this failure. Examining Federalist 10 should illustrate the understanding of the founders and nowhere is there any evidence that the founders anticipated the destructive nature of the two current political parties. The great latitude afforded the Congress in determining the complement of the House was predicated upon the smallness of the nation under the current compass of government and the great unknowns of expansion and the deep divide over the issue of slavery. With such a foreseeable future the congress was granted every option to deal with the tumultuous events that were predicted to transpire. That time has passed and the union is currently sound with all the uninhabited lands currently settled. The founders did not anticipate that the Congress would abuse this power to insulate and isolate itself from the people.
HouseSizeWonk wrote: As for the equal protection argument: personally, I find it unconvincing because it is inconsistent with the Equal Protection Clause, which requires only that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1 (emphasis added). Semantically, this is not a restriction on the federal government at all. The courts have resisted this reading, by (for example) holding that segregated schools in the District of Columbia were unconstitutional in Bolling v. Sharpe, 347 U.S. 497 (1954) for the same equal protection reasons that they were found unconstitutional in Kansas in Brown v. Bd. of Educ., 347 U.S. 483 (1954). That has pretty consistently been followed since then, although the current Court is significantly more conservative than earlier Courts.
TheTrucker wrote:In particular Wendelken cited Wesberry v. Sanders in which we see the following:
Supremes wrote:In reaching its landmark decision, the Supreme Court noted that Article I, Section 2 of the United States Constitution declares that representatives shall be chosen "by the People of the several States" and shall be "apportioned among the several States...according to their respective Numbers...." These words, the Court held, mean that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's."
And in none of the previous cases has the court been asked to provide a specific remedy as it has this time. To dance away from this based on it being a "political question" is also erroneous in that we have an assault on "republican government" perpetrated by two powerful political parties. To say that the courts cannot intervene is like saying the law can't break up a protection racket. It could be that the courts are corrupt or that the people arguing the case are not citing article 4-4 and all the other ammo they have. I don't like the invisibility of Westberry v. Sanders and Aricle IV section 4. Looks like an intentional muff to me.
The whole concept of the "political question" doctrine is that certain types of assaults on republican government are only properly dealt with by branches other than the courts. You can argue that it's a poor design of government, but it would seem to flow irresistibly from the notion of separation of powers.
I will not argue "poor design". I will argue that the courts are the only remedy and that separation of powers exists for this very purpose. The Congress has had ample opportunity to address the issue and has failed.
HouseSizeWonk wrote: I think it is wrong to say that this specific remedy has never been sought; in Whelan, the petitioner sought an order compelling Congress to increase to something like 10,000 members (based on a compelled 30,000:1 ratio). And it was (properly, in my view) shot down; this is just not something that the courts should involve themselves in.
And you are entitled to your opinion. I obviously do not share it for the reasons I have given.
HouseSizeWonk wrote: The Guaranty Clause is plainly inapplicable in this situation. First, it is not a guarantee that the federal government will be "republican," only that the federal government "shall guarantee to every State in this Union a Republican Form of Government." U.S. CONST. art. IV, § 4 (emphasis added).
As I have said. A misinterpretation of the words of the Constitution does not set precedent and eternal law. Montana is clearly being denied a "republican form of government" as that phrase has been defined in the court cases since 1960. Disproportionate representation was fond to be unconstitutional because it is central to the nature of a "republican form of government". And the words of A4S4 are very hard to misconstrue. The words do not say that the federal government will force the state governments to be "republican". It says that the Feds will "guarantee to every state in the union a republican form of government." And the Feds ain't doin' it.
HouseSizeWonk wrote: Moreover, the Supreme Court has made it clear that it does not consider this clause actionable in court. In another important separation of powers case, it said that, "as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." Luther v. Borden, 48 U.S. (7 How.) 1, 42 (1849). The Supreme Court similarly refused to entertain a challenge to a State referendum on Guaranty Clause grounds. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912).
And this has to do with what the Feds can do WITHIN the states and runs counter to what they DID do within the states to boot.
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Re: Some Court Cases About The 435 Number

Post by HouseSizeWonk »

TheTrucker wrote:
You're position here is far too narrow. In Wood .v Broom the court ruled that the "equally populous, contiguous, compact" characteristics of electoral districts legislated in 1911 expired when those provisions were not set forth in the The Reapportionment Act of 1929. thus declaring that electoral districts could be anything the states wanted. Then in the 1960's the court reversed itself and ordered equally populous single member districts. And that is the current settled law. Things change and not all circumstances were foreseen by the founders. As to the number of representatives and, hence, the size of electoral districts there is no way to "divine" this from the 1790's but to note that the district size was actually reduced from 40 to 30 thousand and that there was still much concern over the size of districts as is evinced by Federalist 55 through 58 and by the creation of Article The First as requested by several of the ratification conventions.
You're making statements about the "current settled law" as regards intrastate districting. The current settled law as regards interstate districting is stated in Montana and Whelan, which is that there is no judicial remedy. The fact that there was concern in the founding generation does not change what branch of government is the proper source for a remedy to the problem. As the Whelan opinion notes, the argument to go from 40 to 30 thousand at the Philadelphia Convention was to "give Congress a greater latitude." We, as a society, choose to tolerate a small House chamber, apparently for policy reasons (desire not to have an overly multitudinous chamber, reduce the costs involved in paying salaries, etc.). It is not for the unelected judiciary to second-guess a valid (if disagreeable) policy decision of the elected branches if it is not in contravention of the Constitution.
TheTrucker wrote:1842, 1922, and 1929 illustrate that the two party system is incompatible with the intent of the founders and that the courts must intervene to arrest this failure. Examining Federalist 10 should illustrate the understanding of the founders and nowhere is there any evidence that the founders anticipated the destructive nature of the two current political parties. The great latitude afforded the Congress in determining the complement of the House was predicated upon the smallness of the nation under the current compass of government and the great unknowns of expansion and the deep divide over the issue of slavery. With such a foreseeable future the congress was granted every option to deal with the tumultuous events that were predicted to transpire. That time has passed and the union is currently sound with all the uninhabited lands currently settled. The founders did not anticipate that the Congress would abuse this power to insulate and isolate itself from the people.
Flaws in the Constitution resulting from issues not anticipated by the Founders are not properly "fixed" by the courts. They are fixed by the Amendment process.
TheTrucker wrote:I will not argue "poor design". I will argue that the courts are the only remedy and that separation of powers exists for this very purpose. The Congress has had ample opportunity to address the issue and has failed.
That's assuming it's an issue that must be addressed. You feel it is. I feel it is. But just because that's our opinion doesn't make it an issue that must be addressed. If what you discuss is what you mean by "separation of powers," you have a very different concept of it than that suggested by the Constitution and articulated by the courts. The notion of "separation of powers" is that certain acts are legislative, executive, and judicial in character. Separated powers necessarily mean that certain decisions are vested only in one or another of the branches.

Consider a different context: the President's authority as Commander-in-Chief. Even if the President were demonstrably mis-managing the military, it would be inappropriate for the courts to intervene. For example, in Ainsworth v. Barn Ballroom Co., 157 F.2d 97, 100 (4th Cir. 1946), a serviceman challenged a standing order that he was not to patronize a certain dance hall. The courts held that they could not get involved: "the courts may not invade the executive departments to correct alleged mistakes arising out of abuse of discretion[;] . . . to do so would interfere with the performance of governmental functions and vitally affect the interests of the United States." It didn't matter whether it was a good or bad decision; it was not a mistake that the courts can correct. The 435-member cap is no different; it is a matter that is certainly at the discretion of Congress.
TheTrucker wrote:As I have said. A misinterpretation of the words of the Constitution does not set precedent and eternal law. Montana is clearly being denied a "republican form of government" as that phrase has been defined in the court cases since 1960. Disproportionate representation was fond to be unconstitutional because it is central to the nature of a "republican form of government". And the words of A4S4 are very hard to misconstrue. The words do not say that the federal government will force the state governments to be "republican". It says that the Feds will "guarantee to every state in the union a republican form of government." And the Feds ain't doin' it.
The phrase "republican form of government" has not been defined in any court cases since 1960. Since Luther, the Supreme Court has said that a "republican form of government" is whatever Congress says it is. The Court fastidiously avoided invoking the Guaranty Clause in the 1960s apportionment cases, precisely because it was uninterested in challenging that precedent. The Court in Baker, in fact, said that "the claim pleaded here neither rests upon nor implicates the Guaranty Clause, and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause." Reynolds didn't so much as cite it.

Beyond that, though, it is simply a mis-reading of that clause to say that it can be held against the federal government. Simply as a semantic matter, it does not apply. In full, it reads "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." In that context, it is abundantly clear that the guarantee is a supervisory one; the federal government will ensure that each State's government is "republican" in form. It isn't a coincidence that, when the Guaranty Clause is invoked in litigation (fruitlessly, due to the precedent of Luther) it is not asserted against the federal government, but against the form of State government. Think about it: the Founders were convinced that the U.S. Constitution already was a "republican form of government"! Indeed, they made it quite clear that the very design of the Constitution would inexorably produce a republican form of government through its very design. The only "question mark" was what might happen in the States.
TheTrucker wrote:And this has to do with what the Feds can do WITHIN the states and runs counter to what they DID do within the states to boot.
To be honest, I'm not sure what you mean by this.
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Re: Some Court Cases About The 435 Number

Post by HouseSizeWonk »

Consider this as well. In Vieth v. Jubelirer, 541 U.S. 267 (2004), the Supreme Court refused to correct a fairly obvious gerrymander of Pennsylvania's congressional districts. Although the Court could not agree upon a majority decision, the 4 dissenting votes (which sought to intervene) could not agree between themselves as to why and were split 3 ways. Justice Kennedy's deciding 5th vote was only to hold that although nobody had yet thought of a judicial test that could be workably applied, he would not overrule Davis v. Bandemer,478 U.S. 109 (1986), and hold that they were nonjusticiable (hardly a ringing endorsement). Easily the most persuasive opinion was the lead opinion by Justice Scalia. He noted that "t is significant that the Framers provided a remedy for such practices in the Constitution. Article 1, §4, while leaving in state legislatures the initial power to draw districts for federal elections, permitted Congress to 'make or alter' those districts if it wished."

Consider: if gerrymandering, which is a fairly obvious districting sin, cannot be remedied by the courts, how could this far more subtle problem which has far stronger arguments in its defense (avoiding a cacophonous chamber, reducing total legislative salary payouts)?
803sccdantes
Posts: 17
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Re: Some Court Cases About The 435 Number

Post by 803sccdantes »

HouseSizeWonk wrote:Consider this as well. In Vieth v. Jubelirer, 541 U.S. 267 (2004), the Supreme Court refused to correct a fairly obvious gerrymander of Pennsylvania's congressional districts. Although the Court could not agree upon a majority decision, the 4 dissenting votes (which sought to intervene) could not agree between themselves as to why and were split 3 ways. Justice Kennedy's deciding 5th vote was only to hold that although nobody had yet thought of a judicial test that could be workably applied, he would not overrule Davis v. Bandemer,478 U.S. 109 (1986), and hold that they were nonjusticiable (hardly a ringing endorsement). Easily the most persuasive opinion was the lead opinion by Justice Scalia. He noted that "t is significant that the Framers provided a remedy for such practices in the Constitution. Article 1, §4, while leaving in state legislatures the initial power to draw districts for federal elections, permitted Congress to 'make or alter' those districts if it wished."

Consider: if gerrymandering, which is a fairly obvious districting sin, cannot be remedied by the courts, how could this far more subtle problem which has far stronger arguments in its defense (avoiding a cacophonous chamber, reducing total legislative salary payouts)?


I think we can address this several ways-

1. This case was only about gerrymandering, not apportionment. If you look at the history of the Court, it has taken distinctions even slighter than the difference between gerrymandering and apportionment and come out in opposite ways-ways you never would have thought would have been possible since the facts and the rules seemed so similar. However, the Court has used every so slight distinctions to rule the way it wants to. Furthermore, in Montana, the Court said it was free to review Congressional apportionment methods and that that was not a political question- and that the public was well served in being able to challenge the apportionment on different grounds.

2. Why would the court want to find a distinction between the Vieth Case? Well you said it yourself- the case was 5-4- in a very divided court. We've since had 3 new justices appointed to the court. Just because they were appointed to replace a conservative or a liberal doesn't mean they will vote with the conservatives or liberals. Plus, Kennedy was a reluctant swing vote. He may like the idea of making a distinction and ruling another way- you can never tell.

3. I would argue the arguments about cacophonous chamber, reducing salary payouts, etc. aren't even legitimate arguments. Nearly every other republican country in the industrialized world has more representatives in their lower house than the USA. Furthermore, each Congressman has a staff of around 20 right now because they are constantly in meetings, campaigning, meeting with constituents, etc. By expanding the House, it would lessen the workload on every Congressman and thus he would need less staff. In any event, the Congress did not perform any study or examine any authoritative work when it passed the 1929 statute. When it comes down to it, the 1929 law was passed because of a political deadlock that had to be broken. It'd be hard to argue they were worried about these problems when Congress didn't even take the time to have a study done on this- especially when this dispute was pending for nearly 10 years.

In any event, even if it got to the Supreme Court, I doubt it would actually overturn the 1929 apportionment law. I think practical issues would take precedence over legal issues. Forcing Congress to somehow develop a new formula for thousands of elections would be a nightmare-and the Court would be blamed for the chaos. While I think the Court should overturn the law, the chances of that actually happening are slim to none. Of course people probably said the same thing about Brown v. Board of Education before it came out- so who knows.
HouseSizeWonk
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Re: Some Court Cases About The 435 Number

Post by HouseSizeWonk »

803sccdantes wrote:
I think we can address this several ways-

1. This case was only about gerrymandering, not apportionment. If you look at the history of the Court, it has taken distinctions even slighter than the difference between gerrymandering and apportionment and come out in opposite ways-ways you never would have thought would have been possible since the facts and the rules seemed so similar. However, the Court has used every so slight distinctions to rule the way it wants to. Furthermore, in Montana, the Court said it was free to review Congressional apportionment methods and that that was not a political question- and that the public was well served in being able to challenge the apportionment on different grounds.
Montana said that the formula Congress uses to divvy up the seats between the States is not a political question (the Huntington-Hill Method, as opposed to say, the Hamilton Method). It did not hold that the issue of the size of the House is not a political question. And, I am quite certain that it is.
803sccdantes wrote:3. I would argue the arguments about cacophonous chamber, reducing salary payouts, etc. aren't even legitimate arguments. Nearly every other republican country in the industrialized world has more representatives in their lower house than the USA. Furthermore, each Congressman has a staff of around 20 right now because they are constantly in meetings, campaigning, meeting with constituents, etc. By expanding the House, it would lessen the workload on every Congressman and thus he would need less staff. In any event, the Congress did not perform any study or examine any authoritative work when it passed the 1929 statute. When it comes down to it, the 1929 law was passed because of a political deadlock that had to be broken. It'd be hard to argue they were worried about these problems when Congress didn't even take the time to have a study done on this- especially when this dispute was pending for nearly 10 years.

In any event, even if it got to the Supreme Court, I doubt it would actually overturn the 1929 apportionment law. I think practical issues would take precedence over legal issues. Forcing Congress to somehow develop a new formula for thousands of elections would be a nightmare-and the Court would be blamed for the chaos. While I think the Court should overturn the law, the chances of that actually happening are slim to none. Of course people probably said the same thing about Brown v. Board of Education before it came out- so who knows.
All of that depends on subjective assessments of what the marginal value is of one extra representative as opposed to the marginal value of his (or her) salary and contribution to the "noise." The Court will never, ever, ever second guess a congressional determination on those grounds. See, for example, Williamson v. Lee Optical Co., 348 U.S. 483 (1955), in which the Court hypothesized what the State of Oklahoma's thinking might have been in passing the statute.
803sccdantes
Posts: 17
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First Name: Richard

Re: Some Court Cases About The 435 Number

Post by 803sccdantes »

HouseSizeWonk wrote:
803sccdantes wrote:
I think we can address this several ways-

1. This case was only about gerrymandering, not apportionment. If you look at the history of the Court, it has taken distinctions even slighter than the difference between gerrymandering and apportionment and come out in opposite ways-ways you never would have thought would have been possible since the facts and the rules seemed so similar. However, the Court has used every so slight distinctions to rule the way it wants to. Furthermore, in Montana, the Court said it was free to review Congressional apportionment methods and that that was not a political question- and that the public was well served in being able to challenge the apportionment on different grounds.
Montana said that the formula Congress uses to divvy up the seats between the States is not a political question (the Huntington-Hill Method, as opposed to say, the Hamilton Method). It did not hold that the issue of the size of the House is not a political question. And, I am quite certain that it is.

You are correct that the Montana Court did not address the size of the House. Forgive me if I came across as indicating that. I merely was using that case to counter your argument in which you used a case also not about the size of the House to indicate that the Court would rule in a similar fashion on a case about the size of the House. If we go with "the Montana case was not about the size of the House" argument then we should also apply that same logic to the gerrymandering case- and we're back at square 1- no real assurances either way.
803sccdantes wrote:3. I would argue the arguments about cacophonous chamber, reducing salary payouts, etc. aren't even legitimate arguments. Nearly every other republican country in the industrialized world has more representatives in their lower house than the USA. Furthermore, each Congressman has a staff of around 20 right now because they are constantly in meetings, campaigning, meeting with constituents, etc. By expanding the House, it would lessen the workload on every Congressman and thus he would need less staff. In any event, the Congress did not perform any study or examine any authoritative work when it passed the 1929 statute. When it comes down to it, the 1929 law was passed because of a political deadlock that had to be broken. It'd be hard to argue they were worried about these problems when Congress didn't even take the time to have a study done on this- especially when this dispute was pending for nearly 10 years.

In any event, even if it got to the Supreme Court, I doubt it would actually overturn the 1929 apportionment law. I think practical issues would take precedence over legal issues. Forcing Congress to somehow develop a new formula for thousands of elections would be a nightmare-and the Court would be blamed for the chaos. While I think the Court should overturn the law, the chances of that actually happening are slim to none. Of course people probably said the same thing about Brown v. Board of Education before it came out- so who knows.
All of that depends on subjective assessments of what the marginal value is of one extra representative as opposed to the marginal value of his (or her) salary and contribution to the "noise." The Court will never, ever, ever second guess a congressional determination on those grounds. See, for example, Williamson v. Lee Optical Co., 348 U.S. 483 (1955), in which the Court hypothesized what the State of Oklahoma's thinking might have been in passing the statute.

Obviously the Court won't vacate a Congressional statute solely based on a disagreement as to why the law was passed. However, if you get your foot into the door on other reasons, the Court will then examine the Legislative history to try to figure out what Congress was trying to do and why it was trying to do it. One way you could try to get into Court to make these arguments would be to make a Due Process Claim. In a Due Process Claim you address the following questions:

1. Is it a fundamental right?
The Court has consistently held voting is a fundamental right.

2. Has it been infringed?
This would be the real dispute. The Court would examine whether your vote having different impacts in one state to another is an infringement of your right to vote is an infringement. Assuming the Court concludes the differential in voting power is an infringement we'd get to the reasons behind the law.

3 Is there Sufficient Justification for the law?
In this you would apply the Strict Scrutiny Test. In Strict Scrutiny, the Court would examine whether the law was necessarily related to a compelling government interest. At this point, the Court would examine whether it is a compelling governmental interest to not have a cacophonous legislature and to limit salaries paid out. It would then examine whether there were no other ways of accomplishing this goal other than capping the House at 435. I'd say there are strong arguments on both sides but there are definitely other ways to keep order in the House and keep salaries down- if that's the arguments that are presented.

In any event, the Court has and will continue to examine the reasons behind why Congress or a state passes a law and has and will continue to overturn laws for those very reasons- in the limited areas of Due Process challenges under the 5th Amendment and Equal Protection challenges under the 14th amendment.




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