Guest Essayist: Joerg Knipprath

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In a republic, two distinct principles are essential to political influence, voting and representation. Although there is no logical connection between any particular systems of voting and representation, there is a practical overlap. It is not astonishing, therefore, that allocation of voting and representation not only have been addressed in all republican constitutions, ancient and modern, but that conflicts over these issues have flared up in American history. “No taxation without representation” was one potent Revolutionary War-era slogan–and continues to be an (avoidable) obsession with some residents of the District of Columbia and with its municipal government. That slogan arose out of fundamental differences between English and American conceptions of voting and representation that had evolved from the experiences of living under distinctive physical and social conditions.

Voting qualifications and representation have been major controversies in several periods of American history. The Philadelphia Convention in 1787 was deadlocked several weeks over the representational structure of the proposed Congress and nearly broke up over the matter before Roger Sherman and Oliver Ellsworth of Connecticut presented the current compromise system. The constitutional upheaval of the second quarter of the 19th century during the “Age of Jackson” that produced numerous state conventions was triggered by popular restiveness over the outdated systems of voting and representation. One particularly tragic-comic event during that time was the Dorr War, a “civil war” in Rhode Island in 1841/2. It was precipitated by an attempt to reform the voting qualifications and legislative apportionment in place since the old colony’s royal charter had been made, with a few qualifications, the new state’s constitution at independence. Once more, in the 1960s, voting and representation became major constitutional issues. This time the matter was addressed through litigation in courts, rather less democratic than constitutional conventions and less dramatic than civil wars, no matter how small.

As early as 1639, the Fundamental Orders of Connecticut fixed voting for the General Court in all free adult male inhabitants of the towns, if they had taken the Oath of Fidelity. The Orders also fixed representation in that body based roughly on the population of the constituent towns. Other colonial charters followed suit. After independence, the state constitutions addressed these issues, sometimes in considerable detail. For example, the Virginia Constitution of 1776 simply provided in a fraction of one sentence that voters must be free adult males with sufficient common interest with, and attachment to, their community, presumably based on residency and property ownership. The system of representation, on the other hand, took up two complete sections, with representation in the House of Delegates primarily on the basis of counties and cities, and in the Senate, on the basis of larger districts composed of various counties.

The Massachusetts Constitution of 1780 similarly allowed voting for its two legislative chambers by adult male inhabitants with sufficient estates who lived in their respective electoral units. The forty senators would be elected from districts that were apportioned based on the proportion of taxes that they paid. The number of districts, their lines, and the number of senators from each would be determined periodically by the legislature. The state’s House of Representatives would be apportioned on the basis of incorporated towns, with some adjustment for population size among the towns. It was the Massachusetts system of senatorial apportionment by the legislature that made a lasting contribution to the political lexicon. In 1812, the legislature redrew the Senate districts to favor the Jeffersonian Republicans. One district, in Essex County, had a particularly convoluted shape, which an editorial in the Boston Gazette compared to a salamander and dubbed a “Gerry-mander.” The governor, Elbridge Gerry, had signed the legislation despite personal misgivings about its hyper-partisanship. Partisan apportionment remains a common tactic today, and districts not infrequently have similarly odd shapes. One refreshingly honest practitioner, former California Democratic Congressman Philip Burton, in 1981 called one such creation his “contribution to modern art.” While the pronunciation has changed slightly, to a soft “g,” the “gerrymander” has endured.

The U.S. Constitution provides for apportionment of representation among the states. In the Senate, representation is based on the political equality of all states in their corporate capacity, in recognition of their residual sovereignty. In the House of Representatives, it is based on a combination of population and political identity, in that more populous states receive more representatives, but each state has at least one, regardless of population. The Constitution initially provided for one representative for each 30,000 residents, which number itself had been controversial. The convention had settled on one member for each 40,000, but George Washington thought that too high. It was the only time that Washington, the presiding officer of the convention, spoke on a substantive issue before the convention. His proposal was quickly adopted. Beyond that, some speakers at the Philadelphia convention and the state ratifying conventions spoke broadly about the desirability of population equality in drawing districts, and the need to avoid the “rotten boroughs” of England, that is, districts that no longer had many residents, yet still elected members of Parliament. State constitutions also endorsed equality in representation. As, the Virginia and Massachusetts constitutions showed, however, their concept of equality was far more nuanced than the numerical rigidity that the Supreme Court later discovered in the Constitution.

While population growth and admission of new states initially resulted simply in increasing the number of representatives, in 1929 Congress capped the size of the House at 435 voting members, to prevent their number from becoming too unwieldy to conduct business efficiently and to deal with a lack of physical space in the chamber. As a consequence, after every decennial census, unequal population increases in the various states now cause some states to gain representatives, and others to lose them. This can also produce significant population disparities among districts in different states, depending on the formula Congress uses. Under the current formula, the largest district, in Montana, has nearly twice the population of the smallest district, in neighboring Wyoming.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank your for the essay and the art history lesson. Even more relevant since I’ve just begun to read the Time Life art history series I have.

    PSD

    Reply

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