U.S. Constitution – Article 1 Section
Section 1 – The Legislature
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Section 2 – The House
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
(Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.) (The previous sentence in parentheses was modified by the 14th Amendment, section 2.) The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. 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, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five and Georgia three.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.
Three issues—length of terms, equal versus proportional representation of states, and method of selection—dominated the Constitutional Convention’s debate over the makeup of the House of Representatives. They each were resolved in the language of Article I, Section 2.
The two-year term of office for the House was a straightforward compromise between those who preferred annual elections and those who favored a longer, three-year term. The original Virginia Plan envisaged that both branches of the federal legislature would be directly or indirectly accountable to “the People.” In the end, however, the Convention determined that the states would be represented in the Senate and the people in the House of Representatives. During the debate over equal or proportional state representation in the House, several delegates, notably James Wilson, James Madison, and George Mason, argued for population as the just basis of apportionment. That later became conflated with the related but distinct question on the manner of selection.
What the Framers intended in providing for election “by the People” can be better understood in terms of the alternatives that they rejected. The Committee of the Whole vigorously debated and discarded a counter resolution that the House be selected by “the State Legislatures, and not the People.” Elbridge Gerry suggested that Members be selected by state legislatures from among candidates “nominated by the people.” Another compromise, proposed by Charles Cotesworth Pinckney, provided for the House to be selected “in such manner as the legislature of each state shall direct.” Against these proposals, Madison and Wilson argued that selection by the people was necessary to link citizens directly to the national government and to prevent the states from overpowering the central authority. Article I, Section 2, secured direct popular election of the House.
The scope of the phrase “by the People,” however, was neither debated nor defined at the Convention. It appears to have meant the direct popular election with a relatively broad right of suffrage as determined by the states’ own practices. Madison described electoral accountability to the people as “the republican principle.” The Federalist No. 10. Responding to charges that the House would not represent “the mass of the people,” Madison argued in The Federalist No. 57 that “the electors are to be the great body of people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State.” Leading Anti-Federalists, such as Melancton Smith and the anonymous Brutus, used the term in a similar fashion, affirming the broadly accepted meaning. Thomas Jefferson defined “the People” as no particular class but, rather, “the mass of individuals composing the society.”
Comments at both the Convention and at state ratifying conventions indicate substantial support for the general proposition that Representatives should be apportioned in a manner roughly equal to population. Nevertheless, it seems evident that the delegates did not intend to place any particular principle, such as “one person, one vote,” into the Constitution. “One person, one vote” was not the norm in the states at the time of the Convention. Although most states established districts roughly according to population, none came close to the “one person, one vote” standard. Geography, history, and local political boundaries cut against equally populated districts. Similarly, in the Northwest Ordinance of 1787, Congress provided for up to one Representative per 500 persons, but based on townships and counties. Furthermore, besides the celebrated compromise providing each state with equal representation in the Senate, the Constitution specifically grants each state, no matter how small its population, one Representative in the House.
The Constitution, however, does not require Representatives to be elected by districts. In the beginning, many states had their Representatives elected at large. If a state chose its Representatives at large, then they were more likely to speak with one voice, thus increasing the influence of the state in the House of Representatives. Congress then responded by requiring states to elect its Representatives by district. For a brief time, some states required their Representatives to reside in the district from which they were elected, but that requirement no longer exists.
There was a limit, however, to what the states could do in fashioning congressional districts. The Framers did, in fact, disapprove of “rotten boroughs” in Great Britain, districts with no more than a few inhabitants that nevertheless held seats in Parliament equal, in some cases, to large cities. But they decided to address inequities in representation by leaving it to Congress’s discretion to “alter” the “Times, Places, and Manner” of choosing Members. (See Article I, Section 4.) Madison argued that this clause was a necessary safeguard against state-created inequalities in federal representation.
For most of the nation’s history, Section 4 was indeed held to be the sole remedy to malapportionment.
State redistricting plans, scrutinized under the Fourteenth Amendment* rather than Article I, have been granted more leeway. The Court has upheld state legislative districts with population variances up to ten percent with no state justification at all, Gaffney v. Cummings (1973), and variations to nearly twenty percent are permissible where the state demonstrates a rational basis for its plan, such as drawing districts to follow municipal lines. Mahan v. Howell (1973). Consideration of group or economic interests is not, however, an accepted justification. Swann v. Adams (1967).
Critics claim that they have inhibited the formation of regional government consortiums to deal with metropolitan-wide problems; removed traditional constraints on gerrymandering, such as adherence to political jurisdictions or geographic regions; and imposed a particular theory of representation on the states and Congress that is not grounded in the Constitution.
Critics also note that equal population does not correspond to an equal number of voters, due to differing numbers of children, immigrants, and other nonvoters in a district.** Thus votes are still not weighted equally. Nonetheless, the standard of “one person, one vote” remains Supreme Court doctrine.
*The fourteenth amendment and is questionable legality will be discussed later in this series.
**Supreme Court over reach is still a topic of hot discussion as it was in the time of President Andrew Jackson. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from being present on Native American lands without a license from the state was unconstitutional.
Chief Justice John Marshall laid out in this opinion that the relationship between the Indian Nations and the United States is that of nations. He reasoned that the United States, in the character of the federal government, inherited the rights of Great Britain as they were held by that nation. Those rights, he stated, include the sole right to deal with the Indian nations in North America, to the exclusion of any other European power. This did not include the rights of possession to their land or political dominion over their laws. He acknowledged that the exercise of conquest and purchase can give political dominion, but those are in the hands of the federal government, and individual states had no authority in American Indian affairs. Georgia’s statute was therefore invalid.
President Andrew Jackson reportedly responded: “John Marshall has made his decision; now let him enforce it!” This derives from Jackson’s comments on the case in a letter to John Coffee, “…the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate”
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