Happy 5/6 Bill of Rights Day

December 15, 2015

by Jay Marshall Wolman

We here at the Legal Satyricon are big fans of the Bill of Rights.

Over at the Runt Piglet Squeals, the official blog of the Third Amendment Lawyers Association, I have a post  discussing the less commonly understood history of the proposal and ratification of the Bill of Rights.  The tl;dr version:  it was originally 12 articles and numbers 3-12 became amendments 1-10 of the U.S. Constitution on Dec. 15, 1791.  (Article 2 became the 27th Amendment on May 7, 1992, yes, 1992.)

One thing I noted in that post is that, if another 27 states ratified Article the First, the Congressional Apportionment Amendment, we would have about 6,400 members of Congress.

Originally submitted with the rest, Article the First reads:

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.

By my rough math, with about 319 million people in the United States, that is about 6,380 representatives (319m/50k).  However, since it is by state, we would really need to divvy up the population of each state by 50k and add.  So, I’m approximating.  (There’s also some neat math where you need at least 1 per 40k but no more than 1 per 50k.)

Other than debate being interminable, it might not be a bad idea to have 6,000 more representatives.  They would clearly be more responsive and have more opportunity for oversight.  On the other hand, it might be more governmental bloat.  Debates would need to be limited significantly.  But managing that many members would likely also promote greater sub-factionalizations; there would be more opportunities for a centrist party to arise and for governing coalitions to be built, ones that might vary from time to time.

There are those who maintain that when Kentucky entered the union and ratified the entirety of the bill of rights, Article the First became law, assuming that if 3/4 of the states results in a fraction, you round down if under .5 rather than always rounding up.  Eugene LaVergne also contended he discovered that Connecticut actually ratified all 12 in 1790, but the ratification was misfiled and never transmitted (thus the 3/4 threshold was reached before Kentucky was admitted even with rounding up).  Mr. LaVergne even brought suit, but was shot down.  The district court judge even wrote, at Footnote 2 “I recall that when I was practicing, Mr. LaVergne was always a very competent and professional adversary; however, this case is of a different ilk.”  LaVergne v. Bryson, 2011 U.S. Dist. LEXIS 144955 (D.N.J. Dec. 16, 2011).  He was again denied at the Third Circuit.  See Lavergne v. Bryson, 497 Fed. Appx. 219, 2012 U.S. App. LEXIS 19754, 2012 WL 4127268 (3d Cir. N.J. 2012).  Mr. LaVergne was found to lack standing and the issue was otherwise deemed a nonjusticiable political question.  A petition for a writ of certiorari was denied by the Supreme Court.  LaVergne v. Blank, 133 S. Ct. 1275, 185 L. Ed. 2d 185, 2013 U.S. LEXIS 1161 (U.S., Feb. 19, 2013).

If Mr. LaVergne is right about Connecticut’s ratification, it also means that Congress probably overpaid itself when it violated Article 2.  But, it’s a bit late to claw that back.  It also means that pretty much every law was unlawfully enacted since 1791.  Personally, I’d love to see a better case brought, just to watch what happens.