Another Immodest Proposal: Ratify the (Original) First Amendment

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Major Correction: Below you will find a blog post in which I made a boneheaded reading comprehension error. I'm leaving it up because, having in the past criticized others for hiding their errors, I think it only fair that I own mine. As you'll see, in what follows, I read the word "more"  in the last sentence I quoted to mean "less," which is pretty stupid. Thus, my assertion that ratifying the original First Amendment would result in a House of Representatives with over 6,500 members is not true--or rather would be true only if Congress agreed to increase its own size to that extent, which is effectively impossible. Having said all of that, I think there is merit in increasing the size of the House by statute, although there are of course political obstacles to doing that. Okay, here's my original blog post:

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Whenever I hear someone say that "the First Amendment is first for a reason," I'm tempted to respond: "Yes, and the reason is that the originally proposed first amendment was never ratified." In 1789, the requisite supermajority of both houses of Congress proposed twelve amendments. The states ratified proposed amendments three through twelve, which became what we know as the first ten amendments or the Bill of Rights, but the other two fell just short.

There matters stood until the 1980s, when a University of Texas undergraduate got the idea that it wasn't too late to ratify what had originally been proposed as the second amendment. He promoted his idea and in 1992 enough state ratifications had been obtained to make it what we now know as the Twenty-Seventh Amendment. It prevents Congress from giving its members a raise (or decreasing their pay) without an intervening election occurring before the change goes into effect.

But what about the original first amendment ("OFA")? Here's its text:

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

Given the precedent of the Twenty-Seventh Amendment, it stands to reason that a campaign to persuade states to ratify the OFA, if successful, would render it the Twenty-Eighth Amendment or, if you think that the ERA was properly ratified, the Twenty-Ninth Amendment. (Whether the ERA was properly ratified is itself an interesting question about which I've written in Verdict columns here and here.)

If the OFA were properly ratified, using 2020 census data for the US population for our calculations, we would end up with a House of Representatives with over 6,500 members. That is way larger than the legislature of any other constitutional democracy. Counting both houses of bicameral national legislatures, the largest such combined legislature in a democratic country is the UK, which has 650 members in the House of Commons and roughly 800 persons eligible for the House of Lords.  However, I'd discount the House of Lords, given that its members aren't elected. Doing so gives France the top spot, with over 900 total members of both legislative chambers. Even counting legislatures of nondemocratic countries, ratification of the OFA would result in the US Congress dwarfing all other national legislatures: China's National People's Congress has just under 3,000 members, which is less than half the size of the House under the OFA.

Would a 6,500-plus-member House have advantages over our current 435-member House? Absolutely. The most obvious is the one that James Madison had in mind when he proposed the OFA in the first place. A House member who serves 50,000 constituents will be much closer to those constituents than one who represents three quarters of a million constituents, as the typical House member currently does.

There is another advantage: It is more difficult to engage in political gerrymandering with the smaller districts that the OFA entails. In that sense, the OFA is an alternative to another proposal that I recently discussed: elimination of the statutory requirement for single-member districts and a shift to party-list voting with proportional representation. Like that proposal, adoption of the OFA would also reduce the opportunity for racial gerrymandering without any express reliance on race.

That is not to say that ratification of the OFA would have no drawbacks. The obvious one is logistical: The existing congressional facilities are inadequate to a body with fifteen times the number of current members. In addition, in a legislature that large, power would effectively be wielded by party leaders, thus canceling out some of the benefits of greater closeness to the people--except perhaps with respect to constituent services.

Some readers might at this point be wondering why I'm discussing the OFA. After all, it doesn't require a constitutional amendment to increase the size of the House, which has been capped at 435 by a statute enacted in 1929. Congress could, through ordinary legislation, increase the size of the House with a simple statute. Moreover, if it did so, it could double the size of the House or increase it by any other amount. It would not be obligated to increase the House to an unwieldy 6,500+ members, as required by the OFA. And ordinary legislation is easier to enact than a constitutional amendment. So shouldn't that be the path?

In theory, yes, but in practice, members of Congress are extremely unlikely to vote to dilute their own power and prestige by substantially increasing their number. They each have a personal interest in keeping the House small.

Ordinarily that would also rule out a constitutional amendment, which requires two-thirds of each chamber to be proposed. However, the OFA has already secured the two-thirds of each chamber necessary to send it to the states. It did so in 1789.  Resurrecting the OFA in the same manner that the original Second/Twenty-Seventh Amendment was resurrected would be a way of bypassing Congress. All we need now is some enterprising undergraduate!

-- Michael C. Dorf