Return the House of Representatives to the People

The Bill of Rights: Creation and Reconstruction
by Akhil Reed Amar
© Yale University Press
Winner, ABA Certificate of Merit and Yale University Press Governor’s Award, 1999

Excerpted from Chapter One: “First Things First”...

     The Anti-Federalists were not simply concerned that Congress was too small relatively − too small to be truly representative of the great diversity of the nation. Congress was also too small absolutely − too small to be immune from cabal and intrigue. As Gilbert Livingston pointed out during the New York ratifying convention, the extraordinary powers of the Senate were vested in twenty-six men, fourteen of whom would constitute a quorum, of which eight would make up a majority. (31) Although the House of Representatives looked much better, with its initial allocation of sixty-five members, it could conceivably end up even worse, as Patrick Henry noted in the Virginia ratifying convention: “In the clause under consideration, there is the strangest language that I can conceive. . . . ‘The number shall not exceed one for every thirty thousand.’ This may be satisfied by one representative from each state. Let our numbers be ever so great, this immense continent may, by this artful expression, be reduced to have but thirteen representatives.” (32) And of course, by logic similar to Livingston’s, seven Representatives could conceivably form a quorum, four of whom would constitute a majority.


Indeed, the “thirty thousand” clause set the scene for a dramatic finale to the Philadelphia convention in which George Washington, for the first and last time, took center stage to address his fellow delegates on a substantive issue.

     The date was September 17, 1787 − the final day of the convention. Two days earlier the convention had unanimously agreed to a final text and had authorized the engrossment of the parchment for signing. (36) This final version provided that the number of Representatives not exceed “one for every forty thousand.” Moments before the copy was finally voted upon and signed, Nathaniel Gorham of Massachusetts “said if it was not too late he could wish, for the purpose of lessening objections to the Constitution, that the clause . . . might be yet reconsidered, in order to strike out 40,000 & insert ‘thirty thousand.’” (37) The irregularity of this eleventh hour motion only underscored the importance of the issue. Equally irregular was the response of presiding officer Washington, who had until then officially maintained a scrupulous silence on all substantive issues:

When the President rose, for the purpose of putting the question, he said that although his situation had hitherto restrained him from offering his sentiments on questions depending in the House, and it might be thought, ought now to impose silence on him, yet he could not forbear expressing his wish that the alteration proposed might take place. It was much to be desired that the objections to the plan recommended might be made as few as possible − The smallness of the proportion of Representatives had been considered by many members of the Convention, an insufficient security for the rights & interests of the people. He acknowledged that it had always appeared to himself among the exceptionable parts of the plan; and late as the present moment was for admitting amendments, he thought this of so much consequence that it would give much satisfaction to see it adopted. 38

     With the weight of its President behind the measure, the convention unanimously adopted the amendment. An erasure was made in the parchment, the word thirty was inserted where forty had been, and the document was then finally approved and signed. Thus, even before the ratification struggle took shape, Federalist supporters of the Constitution were sensitive to the structural issue of congressional size.

Nowhere was Anti-Federalist concern with size more evident than in the ratification conventions themselves. Of the six states where conventions endorsed various amendments before the first Congress met — Massachusetts, South Carolina, New Hampshire, Virginia, New York, and North Carolina— all but South Carolina proposed a secure minimum size for the House of Representatives. (41) This proposal was never placed lower than second on an ordinarily long list of desired amendments. Only one principle ever ranked higher — the idea of limited federal power that eventually made its way into our Tenth (their Twelfth) Amendment. (42) In the words of Melancton Smith, a leading Anti-Federalist, at the New York ratifying convention, “We certainly ought to fix, in the Constitution, those things which are essential to liberty. If any thing falls under this description, it is the number of the legislature.” (43)
The footnotes referenced in the excerpts above can be found in:

Author: Akhil Reed Amar
© Yale University Press (1998)
ISBN 0-300-07379-8
The author and publisher of this book are not affiliated with
“If a nation expects to be ignorant and free ... 
      it expects what never was and never will be.”

– Thomas Jefferson

Last updated: 13July2004
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