Opening of the 71st Congress (Library of Congress)

Refactoring Democracy

The Day American Democracy Died

June 18, 1929

88 years ago today, President Hoover signed an Act into law that stifled and increasingly asphyxiates American participation in its own government.

But before I tell you the story of the day American Democracy died, it’s important to reach a shared understanding for what I mean by “democracy.”

The Democratic Spectrum

Merriam-Webster on “democracy”:

a : government by the people; especially: rule of the majority
b : a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections

“Supreme power is vested in the people…by the people.”

We the People.

We have power over ourselves. At least that’s the idea. In a perfect society, everybody would represent themselves. Democracy aspires to empower everyone with the means to participate in and affect being governed. That’s exactly what the Athenians tried to achieve 2,500 years ago in the first known democracy by letting everyone take part directly in legislature.

Can you imagine 200 million registered American voters showing up today at the United States Capitol to participate openly in Congressional sessions? Me neither. Who would get a turn to speak and when? Where would we all fit? And who has time for that? We all have jobs to do and mouths to feed. Direct democracy would have failed outright over the last 241 years and never gotten off the ground at all.

On a spectrum from everyone having power to only one having power, humans have been trying since we could speak to find the sweet spot…that governed utopia where we’re all able to each participate just enough to have a say in the things that matter to us and delegate the rest.

The Representative Spectrum

Thus, our forefathers subscribed us to a system of representative democracy—a “republican form of government”—where we directly elect representatives to exercise our power for us indirectly. That way, we could go about our lives while still playing a part in our own fates.

The Founders’ Intent

Through a republican government, our forefathers engineered a system whereby a House of Representatives could (should) proxy the American people as currently as possible through biannual popular elections. This body could increase in size proportionally with our nation’s population. Representative counts in the “People’s House” would be apportioned and reallocated based on census data collected every ten years. In theory, this scaling mechanism would allow voters ongoing access to Representatives and therefore the means to participate in their own government.

But how many Representatives would there be exactly?

Herein lies the question of the century. Rightly so, for the number of House Representatives ranked among the most fiercely debated topics at the Constitutional Convention. Our dear forefathers really had no clue how to deal with House size. They knew it couldn’t be too big and or too small. James Madison, Mr. Father of the Constitution himself, even wavers a bit on the subject in Federalist #55:

“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 proportionally a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed…In all very numerous assemblies, of whatever character composed, passion never fails to wrest the scepter from reason.”

When the Committee of Detail at the Philadelphia Convention first set the ratio at 40,000 per congressional district, James Madison objected for fear the House would grow too large. Everyone else feared the House staying too small. Pennsylvania delegate James Wilson argued plainly that “equal numbers of people ought to have an equal [number] of representatives.” When George Washington finally piped up to express his only objection of the entire convention by arguing that 40,000 was too high, the group agreed and penned Article I, Section 2 of the Constitution (left unamended to this date) as follows:

“The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative;…”

Commonly misread to say that we should expect to have one Representative per 30,000 people, this clause conversely imposes a maximum ratio to prevent overrepresentation. Our forefathers first feared that the House might attract too many members and thus declared herein that states cannot send more than one Representative per 30,000. If no other laws regulated the matter, Wyoming on its own volition could not send more than 19 Representatives to Congress based on its current population and California no more than 1,304. As ratified, the Constitution says nothing of a minimum ratio to prevent underrepresentation except for a minimum of “at least one.”

And that’s about as far as they got when ratifying the Constitution. Delegates could not agree on the formula to use and deferred the decision.

Screw it, let’s just let Congress figure it out later…

The O.G. Bill of Rights (source: Bill of Rights Institute)

The Original First Amendment

Did you know the original Bill of Rights proposed twelve Amendments to the Constitution, not just ten? Look closely.

Feeling a major void of any tangible criteria for reapportioning the House, the original “Article the First” sat firmly at the top of the agenda for the First Congress and required the number of House members to increase in direct proportion to the population. It read:

Article the First…After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor less than one Representative for every fifty thousand persons.

Hah, fooled you. That’s not what it says. If you look very carefully at the last line in the picture, it actually reads:

…nor more than one Representative for every fifty thousand persons.

But the version I fooled you with was how the House originally drafted and passed it on August 24, 1789. After the House hit 200 members, the original Amendment required a minimum fixed ratio of “nor less than” one Representative for every 50,000 people in answer the maximum number of 30,000 set by the Constitution. The proposed Amendment then went to the Senate, who revised and approved it on September 9, 1789 as follows:

Article the First…After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, to which number one Representative shall be added for every subsequent increase of forty thousand, until the Representatives shall amount to two hundred, to which number one Representative shall be added for every subsequent increase of sixty thousand persons.

The Senate’s version bumped the fixed ratio up to 1:60,000 with a different syntactical approach to the passage. From there, a joint committee had less than four days to resolve many complicated discrepancies between both houses’ full proposals for the Bill of Rights and made many quick revisions. Congress finally approved a revision to the Amendment on September 25, 1789 to be ratified by the States that effectively reverted to the House’s original version without noticing that the committee had hastily botched the revision by one word: “nor more” instead of “nor less.

Ten of the fourteen states ratified Article the First before Delaware noticed that the Amendment’s error rendered it useless once the population reached 10 million people. After 1830, when the House hit 213 Representatives, the Amendment would have had zero effect other than requiring a minimum of 200 Representatives thereafter. Duh. Without Delaware, the Amendment fell one state shy of ratification.

Alas, the issue of a minimum ratio to prevent underrepresentation never made it to the Constitution and we continue to question ratios to this day.

How Congress Murdered American Democracy

In lieu of a proper census to kickstart the country, the Constitution set the initial size of the 1787 House of Representatives at 65 members (roughly one Representative per 60,000). Following the nation’s first census in 1790, the House brought in data to properly apportion seats for the first time. However, their first proposal skewed in favor of northern states. On April 5, 1792, George Washington executed the first ever presidential veto of a bill on the grounds that the apportionment unconstitutionally provided bonus Representatives to some states exceeding the maximum defined in the Constitution. Rather than overrule the veto with a two-thirds vote, Congress ditched the original proposal to honor Thomas Jefferson’s insistence for using a fair “arithmetical operation” and settled on a fixed ratio of “one for every thirty-three thousand” that increased the number of seats to 105.

From there on, Congress and the President had to reach an agreement on the number of House members every ten years following each census.

Apportionment Act of 1911

With the exception of apportionment in 1842 following the 1840 census, the number of Representatives increased with the population every ten years until 1911 when the 1910 census showing 92 million ballooned the proposed House size from 386 to 433 members (roughly one Representative for every 210,000 people). On August 08, 1911, President Taft signed into law the Apportionment Act of 1911 that also added one seat each for Arizona and New Mexico when they achieved statehood. The new count took effect on March 3, 1913 and 435 Members showed up for the 63rd Congress in 1913. Whispers circled the House: things were starting to feel a bit crowded.

Immigrants, oh my! (source)

Failure to Reapportion in the 1920s

Rural men heading off to fight in World War I, the war effort, rampant industrialization, and a massive influx of immigrants from Southern and Eastern Europe shifted the majority of a burgeoning population to cities for the first time in American history. Counter to this massive shift, Republicans seized the presidency and both houses from the Democrats in 1920.

When results came back from the 1920 census suggesting an increase to 483 in favor of urban migration, fierce debate broke out between rural and urban Representatives. Members sympathetic to rural districts questioned the validity of the results, arguing that the census could not have accurately counted residents on remote properties during the brutal winter of 1919 or those residents who temporarily relocated to cities to aid the war effort.

In reality, they knew the population shifts would redistrict many of them out of their own seats and that urban states would absorb power over rural states. Many Representatives hid behind the silly argument that the chamber did not have enough seats for 483 members. Political machines fought the increase as well given that having more Members made influencing votes more difficult and expensive. Underneath all of this debate brewed intense xenophobic and racist sentiments by those afraid that growing ethnic populations in urban areas would win too much power.

For the first and only time in its history, Congress failed to reapportion seats.

Dang, isn’t that unconstitutional? Well, no, not quite yet. The Constitution technically gave Congress until before the next census in 1930 to reapportion seats. And guess what? They did. Oh yes, they did. And they did for good.

The Permanent Reapportionment Act of 1929

Fierce debate dragged on for nine years. After nearly two decades without having updated districts, growing states like California were suffering extreme underrepresentation and many feared it would skew the Electoral College beyond repair. By 1929, the clock was ticking and Congress came dangerously close to violating the Constitution. With another census impending, President Hoover demanded a solution once and for all.

Representatives of the 71st United States Congress proposed the Permanent Apportionment Act of 1929 to revise Title 2 Chapter 1 Section 2 of the United States Code to indefinitely cap the number of Members at the 435 level set by 1911's apportionment. To avoid an apportionment deadlock from ever happening again, the Act also instituted a process that automatically reallocates seats between states with population shifts following every decennial census. Never again, they thought, would Congress and the President need to reach an agreement on apportionment. Instead, the Department of Commerce simply enters the census results into a spreadsheet to determine the allocation. While Representatives of urban states did not favor the proposal, they accepted it anyway to help close the lingering gap of representation. The Act passed Congress by simple majority on June 11.

On June 18, 1929, President Hoover signed the Act into law.

Months later, the great depression began.

Isn’t this all unconstitutional? Well, no. Congress is fully within their Constitutional power to cap the size of the House of Representatives. As long as states send fewer than one Representative per 30,000, we’re by the book. Congress accomplished here by statute what really should have required a constitutional amendment, but let’s count our blessings that they did not.

With the exception of a temporary increase to 437 between 1959 and 1963 when Alaska and Hawaii became states, we’ve had the same number of Representatives for so long that most Americans accept the number 435 as a constitutional mandate. But it’s not. Far from it. In fact, it’s a completely arbitrary number with no constitutional basis at all.

I smell apathy.

In the next post, we’ll examine how an Act of Permanent Reapportionment born out of xenophobia, partisan deadlock, and a cruel version of nationalism— very much akin to what were experiencing today—dealt a fatal blow to American Democracy and how it curtailed American freedom more than any single other act of Congress in U.S. history.

This is Part 1 of a six-part series on our representation in the United States.

Next: Part 2: The Curse of Permanent Reapportionment