Common Sense

#21
Everyone is talking, but no one is listening.

Hard to understand how we are going to correct our problems without building a House to represent all of us.

Two hundred and twenty years ago at this point in the Constitutional Convention, the founders in Philadelphia had settled on a simple ratio to be used to represent We the People. The ratio at this time, in early September 1787, was 1 Representative for every 40,000 inhabitants in a state (3/5 representation for slaves).

On 17 September, Washington and the others would make the change to 30,000 - but see how simple and straightforward numbers are? They de-politicize the most political issue - representing We the People in Congress.

And being simple in our rules of government can be a virtue - as it was to the founders. Thomas Paine, writing in 1776 at the very beginning of the cause of constitutional government - meaning one written for all to read - argued for simplicity in government in his pamphlet Common Sense -

"I draw my idea of the form of government from a principle in nature, which no art can overturn, viz. that the more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered."

We the People are in need of a simple solution - like a government organized according to its Constitution, which in our case is: "The Number of Representatives shall not exceed one for every thirty Thousand." (Article 1)

That is what it says, and of course we can amend it, but wouldn't it be interesting if we actually did what our Constitution said to do?

But hey? - Why bother representing We the People in Congress? How could that make a difference?

"according to some equitable ratio of representation"

#20
220 years ago today the founders at the Constitutional Convention passed a resolution to represent We the People in the new government "according to some equitable ratio of representation." Without question, this was a revolutionary idea - and one they made constitutional.

Here is an excerpt from my book Article the first of the Bill of Rights on the story of the "equitable ratio of representation":
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The gathering in Philadelphia took a turn that some thought too much: instead of working on “fixing” or reforming the current government – the Articles of Confederation – the mood and momentum turned toward a new form of government altogether. You can see this change in the records from the convention. The convention began on 25 May. By 11 June, the first major change was underway. That was when the founders first passed a resolution on changing from the old system, equal representation and one state, one vote, to a new system and the “ratio of representation”:

Resolved that the right of suffrage in the first branch of the national Legislature ought not to be according to the rule established in the articles of confederation; but according to some equitable ratio of representation.[1]

The resolution passed. Seven states were for the change, three against, and the Maryland delegation divided. (That accounts for 11 of the 13 votes – as Rhode Island and New Hampshire did not have delegates present on this day.) In less than three weeks, the convention had made a fundamental change in the distribution of power: the new government would be based on “some equitable ratio of representation.”

This was not the first time a ratio had been proposed in the colonies for representation. On 7 October 1777, the Continental Congress, discussing the terms of the Articles of Confederation, had voted against two proposed representation ratios. One proposed ratio was one representative for every 50,000 inhabitants; the other was one for every 30,000 inhabitants. On this day, the newly independent states agreed to a third proposal for representation – the one state, one vote compromise – with only Virginia in dissent.[2] So the concept of a ratio for representation was familiar to the founders in 1787.

Two other votes of interest that day included one on ‘who was to be counted and how?’ as well as ‘what to do with the second branch of the national legislature?’ On the first question – Who counted and how? – They passed a resolution stating, “that the right of suffrage in the first branch be according to the whole number of white and three fifths of the other inhabitants.” This passed with nine for and two against – the states voting against were Delaware and New Jersey. The “three fifths” concept was also familiar to the founders: it had appeared in the Second Continental Congress, 18 April 1783, in an act to amend the Articles of Confederation. They used the measure to tax slaves as property. In effect, they created a 40 percent exemption by allowing “two fifths” of a slave to not be taxed as property.[3]

At the time, the influential Elbridge Gerry of Massachusetts offered a clear criticism of counting slaves in representation. Many other northerners would do the same. The slave representation, until its removal by the Fourteenth Amendment, would play the pivotal role in the federal government. From the beginning, some saw the problem. Here Gerry was forthright:

The idea of property ought not to be the rule of representation. Blacks are property, and are used to the southward as horses and cattle to the northward; and why should their representation be increased to the southward on account of the number of slaves, than horses or oxen to the north?[4]

This is a concise critique: the convention did address slavery even if the word is absent from the final document. Gerry and others were openly critical of counting property, slaves, in representation. In terms of power, this was a clear benefit to the slave states. It added “three fifths”, or 60 percent, to their total state representation. In terms of representation, slaves meant more power.

After Gerry spoke, it was Madison’s turn: he deflected. Madison, a slave owner, as were many others in the room, said he was of the “opinion at present, to fix the standard of representation, and let the detail be the business of a subcommittee.”[5]

On the second question – How to represent the second branch? – They voted for a resolution making the right of suffrage in the second branch just like the first – based on an equitable ratio. It passed with a vote of six for and five against. The equitable ratio for the second branch, the future Senate, became the one we are familiar with – two Senators per each state in the Union.

[1] Farrand’s Records, 1:192. Italics added.
[2] See de Grazia, 84.
[3] Joseph Story, ed., Commentaries on the Constitution of the United States, (Boston: 1833; rev. ed. 1991,), 2:641. Available online on The Founders’ Constitution website: Philip B. Kurland and Ralph Lerner, eds., University of Chicago Press, 2000.
[4] Farrand’s Records, 1:205-206.
[5] Ibid.
~~

Happy 220 to you!

#19
Two hundred and twenty years ago today, 25 May 1787, the founders began a meeting in Philadelphia that would forever alter America. The thirteen independent states began deliberations on how to fix their six-year-old government - The Articles of Confederation and Perpetual Union.

But, instead of recommending a few changes, those gathered that summer drew up plans for a new form of government -The Constitution of the United States of America.

From now until 17 September the delegates met and wrote our Constitution. As it concerns representing We the People and the ratio of representation (or Washington's Number), this is the summer of love so to speak - the summer when it was decided to represent We the People according to our numbers.

Below is some high-end commentary from The New York Review of Books - an exchange between two constitutional experts (Posner and Cole) on what "words" mean in our Constitution. I quote from David Cole to highlight why the founders didn't use just "words" to define representation - they used a number instead. Brilliant. Let's just refer to the representation ratio (one for every thirty Thousand) as "Washington's Number". He was the one who wished to see We the People better represented - and he put the 'thirty' in our constitutional number "thirty Thousand" on 17 September 1787 – but more on that as the summer progresses.

Happy 220 to you!
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'How to Skip the Constitution' - An Exchange
Judge Richard A. Posner and Professor David Cole, 11 January 2007

Cole: "There is a reason the framers of the Constitution did not simply say "the government may engage in any practice whose benefits outweigh its costs," as Judge Posner would have it, but instead struggled to articulate a limited number of fundamental principles and enshrine them above the everyday pragmatic judgments of politicians. They foresaw what modern history has shown to be all too true - that while democracy is an important antidote to tyranny, it can also facilitate a particular kind of tyranny - the tyranny of the majority. Constitutional principles protect those who are likely to be the targets of such tyranny, such as terror suspects, religious and racial minorities, criminal defendants, enemy combatants, foreign nationals, and, especially in this day and age, Arabs and Muslims. Relegating such individuals to the mercy of the legislature - whether it be Republican or Democratic - denies that threat. The Constitution is about more than efficiency, and more than democracy; it is a collective commitment to the equal worth and dignity of all human beings. To call that mere "rhetoric" is to miss the very point of constitutional law."
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Note: there is nothing rhetorical about Washington's Number and the constitutional principle of representing We the People according to our numbers (USC, Article 1, Section 2, Clause 3): "The Number of Representatives shall not exceed one for every thirty Thousand."