The House of Representatives Clause

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . .

—Bradley Smith

Introduction

The House of Representatives, unlike the Senate, is elected every two years “by the People of the several States.” The direct election for the lower house was deeply rooted in colonial and post-independence practice. During the Constitutional Convention and the ratification process, there was broad agreement that members of the House would be elected by the people rather than by the state legislatures, but there was some disagreement about the duration: One year was too short, three years was too long, so two years was something of a compromise. In the early years of the Republic and well into the twentieth century, there was no suggestion that congressional districts must have equal populations. That practice changed with a series of decisions by the Warren Court in the early 1960s. Though not based on original understanding, there is little evidence that the Court is prepared to reassess its core jurisprudence in this area or that there is public demand for it to do so.

History Before 1787

England’s first representative parliament, the “Model Parliament” of 1295, based representation on geography. Every borough and every county was represented by two members, and this system was still in place at the time of the American settlement. Naturally, the early colonists tended to bring this system of geographic parliamentary representation with them.¹

In 1619, Virginia convened the first representative assembly in colonial America.² The following year, to the north, the Pilgrims signed the Mayflower Compact before coming ashore, committing themselves to popular election of a “civil Body Politick” for the Plymouth Colony.³ By the end of the seventeenth century, most colonies held regular elections. By 1776, the precedent was established, and elections to the lower house were the norm throughout colonial America. By contrast, the practice for upper houses was appointment, either directly by the king or by the colony’s proprietor or governor. In Rhode Island and Connecticut, however, the upper chambers were elected. The importance placed on direct elections of the lower chambers can be seen in the frequency of elections—annually in most of the colonies and even semiannually in some.⁴

Generally, representatives in colonial America were apportioned by town or other geographic area. The early legislatures in Virginia and the Plymouth Colony set the standard with two delegates from each town or constituency regardless of population.⁵ By 1787, some lawmakers recognized the desirability of some measure of population equality across districts but geographic considerations remained dominant.⁶ For example, the Northwest Ordinance of 1787 did not require equally populated districts in the Northwest Territories. Representation was based on “counties or townships,” and there would be one representative per 500 persons in the legislative assembly.⁷

The Constitutional Convention

On May 29, 1787, Edmund Randolph of Virginia presented the Virginia Plan to the Constitutional Convention. The Plan provided that “members of the first branch of the National Legislature ought to be elected by the people of the several states. . . .” Randolph’s proposal left the term of office blank.⁸

Despite the tradition of popular elections, the proposal to choose representatives through direct election by the people met immediate opposition from Roger Sherman of Connecticut and Elbridge Gerry of Massachusetts. On May 31, both expressed concerns about the people being “misled” by demagogues. Gerry proposed a system in which state legislatures would choose representatives to the House from candidates nominated by popular election.⁹

James Wilson of Pennsylvania “contended strenuously” for direct election of “the most numerous branch of the Legislature” and argued that direct election was essential to the success of the federal government, which must have the “confidence” of the people and not be subservient to the state legislatures.¹⁰ George Mason of Virginia agreed that direct election was necessary to assure that the House “sympathise with every part of the community.”¹¹ Mason further worried about the “indifference of the superior classes” to the bulk of society absent direct election.¹² James Madison of Virginia likewise argued that popular election was “essential to every plan of free government.” Popular election, Madison contended, would make the government “more stable and durable” and more attentive to the concerns of all classes.¹³ The views of Wilson, Mason, and Madison prevailed in the Committee of the Whole.¹⁴

On June 21, the matter was taken up by the full Convention. Charles Cotesworth Pinckney of South Carolina proposed that representatives to the House would be “elected in such manner as the Legislature of each State should direct.”¹⁵ The earlier debate largely repeated itself, with Mason and Wilson, now joined by Alexander Hamilton of New York and Rufus King of Massachusetts, arguing for direct election. Sherman again expressed his preference for election by legislatures but indicated that he would not oppose direct election. Pinckney’s motion was defeated. The Convention then ratified an amendment that would provide for election to the lower house “by the people.”¹⁶

Debate at the Convention centered around proportional representation of the states, not on equality of population between districts within a state. Wilson’s arguments on the subject could certainly be considered supportive of equally populated districts,¹⁷ but at no point during these debates was it suggested that election “by the people” meant that districts would be required to have equal populations. Rather, it was presumed that the remedy, if any, for large population disparities would lie in the Elections Clause. This provision would grant Congress the power to alter the “Times, Places, and Manner” of choosing members.¹⁸

The Convention compromised on the terms for House seats. Some delegates preferred annual elections, and others favored a longer, three-year term. Madison argued that three years would provide for greater stability in government.¹⁹ At the time, most states held annual legislative elections. Madison suggested that representatives to Congress would need longer terms to develop knowledge of the federal government and of the other states. He observed that one-year terms would be largely taken up with travel to and from the capital. Gerry replied that the citizens of New England would “never” give up annual elections and that frequent elections were a vital check on tyranny.²⁰

On June 21, Oliver Ellsworth of Connecticut moved for one-year terms. Wilson argued that the shorter terms were necessary to make the lower house an “effectual representation” of the people, but Madison pressed the argument for three-year terms, citing travel costs.²¹ Hamilton expressed concern that frequent elections made the people “listless to them” and so facilitated “little cabals.”²² Mason noted that because of travel time, annual elections would benefit the middle states that were close to the capital.²³

Sherman again expressed his preference for annual elections, fearful that if representatives remained too long at the seat of government, they would “acquire the habits of the place.” But, having said his piece, Sherman, pragmatic and conciliatory as always, indicated that he would “be content” with biennial elections, and the Convention ultimately settled on a two-year term as a compromise.²⁴

The Ratification Debates

Despite considerable debate at the Convention, the requirement for election of the House “by the people” received almost no mention during the ratification debates. Most opponents of the Constitution criticized the document for containing too few, not too many, democratic features. In Federalist No. 39, Madison wrote that the House of Representatives “is elected immediately by the great body of the people,” a practice “like that of one branch at least of all the State legislatures.” The House of Representatives Clause was a less than profitable point of attack for the Anti-Federalists.

The term of office received somewhat more attention. Centinel, an Anti-Federalist, argued that two-year terms were too long to “preserve a due dependence and accountability to their constituents.”²⁵ Nathaniel Barrell, another Anti-Federalist, wrote that two-year terms made it too difficult to oust representatives who “behave[] ill.”²⁶ Nevertheless, the duration was not a major point of debate, and alteration was not proposed in the post-ratification amendments that became the Bill of Rights.

Early Practice

In the early years of the Republic, representation in the House was commonly based on towns and geographic districts rather than strictly on population.²⁷ Many state constitutions, like Pennsylvania’s and Alabama’s, required some degree of population equality in state legislative districts.²⁸ As a result, states usually drew congressional districts with some intent to equalize population across districts, but strict population equality was not the norm.²⁹ In 1872, Congress required states to draw equally populated districts “as nearly as practical.”³⁰ Five decades later, this provision was removed in the Reapportionment Act of 1929.³¹ Nevertheless, at any given time from ratification through the middle of the twentieth century, the overwhelming majority of states redistricted without regard to having equally populated districts.³²

Judicial Precedent

Until the mid-twentieth century, Congress’s power to set the “manner” of congressional election was widely considered the sole constitutional guarantee against excessive malapportionment. By that time, enormous population disparities, often exceeding a 10-to-1 ratio, existed in every state.³³

This practice would change after the landmark decision in Baker v. Carr (1962). The U.S. Supreme Court reversed precedent and held for the first time that courts could hear claims that districts were malapportioned.³⁴ Two years later, Wesberry v. Sanders (1964) held that Article I, Section 2, Clause 1 mandated that congressional districts be equal in population “as nearly as is practicable.”³⁵ To support its holding, the Court relied on statements that Madison and Wilson made at the Convention in favor of representation according to population.³⁶ These comments, however, were made during debate over the proportional representation of states in Congress, under which larger states would have more members and smaller states would have fewer members, and did not concern the issue at hand in Wesberry: whether districts within a state were required to be equal in population. As Justice John Marshall Harlan observed in dissent, this evidence from the Convention was tangential to the question before the Court.³⁷ Nevertheless, in Reynolds v. Sims (1964), the Court extended the equal population principle to redistricting of state legislatures on the basis of the Fourteenth Amendment.³⁸

Since Wesberry, the Court has held to a principle of mathematical equality of population in congressional redistricting. Notably, Karcher v. Daggett (1983) declared unconstitutional New Jersey congressional districts with an average population variation of just 726 people, or 0.1384 percent, a figure well within the margin of error in the census count.³⁹ The Court’s dictation of a singular theory of representation undermined both state and congressional power and flexibility in redistricting. For example, requiring near-perfect population equality is often incompatible with following fixed city and county lines, or natural barriers such as mountains or rivers, that might be used to limit the practice of gerrymandering or otherwise drawing districts for partisan gain. This theory may also force legislative mapmakers either to divide natural communities of interests, such as ethnic enclaves, or to submerge them into larger communities. More broadly, this theory hampers the ability of legislative mapmakers to accommodate regional interests and political demands that call for compromise and the careful balancing of political power.

Open Questions

Despite its shaky constitutional grounding, Wesberry has not proven to be particularly controversial.⁴⁰ Evenwel v. Abbott (2016) reaffirmed Wesberry’s principle that states can use total population numbers when drawing districts. However, Evenwel left open the possibility that states could satisfy the Wesberry principle by using “eligible voters” rather than total population: Children, non-citizens, and others ineligible to vote, in other words, would not be considered in determining the size of the district. As a result, each district would have roughly the same number of eligible voters rather than the same number of people.⁴¹ Under that approach, districts with more minors, aliens, and other people who cannot vote would lose representation.

Nevertheless, no state redistricting after the 2020 census attempted to base representation on the number of eligible voters rather than total population, most likely because the Census Bureau did not include a citizenship question, which would have made gathering citizenship data costly and time-consuming for individual states.⁴² Further, nothing in Evenwel suggests that the Court is prepared to depart from its requirement of equal numbers, whether of voters or of population.

1. William Edwards, Crown, People, and Parliament 1760–1935, at 68 (1937). ↩︎
2. Harry M. Ward, Colonial America 1607–1763, at 27 (1991). ↩︎
3. Id. at 41. ↩︎
4. Biennial Elections, U.S. House of Representatives: History, Art & Archives, https://perma.cc/UN43-NR7V. ↩︎
5. Ward, supra at 46. ↩︎
6. N.C. Const. of 1776, arts. II, III. ↩︎
7. Ordinance for the Government of the Territory of the United States North-West of the River Ohio, 32 J. Cont. Cong. 334, 337 (July 13, 1787). ↩︎
8. 1 Farrand’s 20. ↩︎
9. Id. at 48, 50. ↩︎
10. Id. at 49. ↩︎
11. Id. at 48. ↩︎
12. Id. at 49. ↩︎
13. Id. at 49–50. ↩︎
14. Id. at 46. ↩︎
15. Id. at 358. ↩︎
16. Id. at 360. ↩︎
17. Id. at 179, 183. ↩︎
18. Wesberry v. Sanders, 376 U.S. 1, 29–30 (1964) (Harlan, J., dissenting); Federalist No. 59 (Hamilton). ↩︎
19. 1 Farrand’s 214. ↩︎
20. Id. at 214–15. ↩︎
21. Id. at 361. ↩︎
22. Id. at 362. ↩︎
23. Id. ↩︎
24. Id. ↩︎
25. Storing 2.7.22. ↩︎
26. 2 Debate on the Constitution 16–17 (Bernard Bailyn ed., 1993). ↩︎
27. 1791 Pa. Laws 20; 1801 Mass. Acts 386. ↩︎
28. Penn. Const. of 1790, art. I, § 4; Ala. Const. of 1819, art. III, § 9. ↩︎
29. Henry N. Williams, Congressional Appointment in Tennessee, 1796–1941, 4 J. Pol. 507, 508 (1942). ↩︎
30. Act of February 2, 1872, § 2, 17 Stat. 28. ↩︎
31. Pub. Law No. 71-13, 46 Stat. 21 (1929). ↩︎
32. Baker v. Carr, 369 U.S. 186, 301 (1962) (Frankfurter, J., dissenting). ↩︎
33. Stephen Ansolabehere & James M. Snyder, Jr., The End of Inequality: One Person, One Vote, and the Transformation of American Politics 26–27, Table 2.1 (2008). ↩︎
34. 369 U.S. 186 (1962). ↩︎
35. 376 U.S. 1, 7–8 (1964). ↩︎
36. Id at 10–18. ↩︎
37. Id. at 24–27 (Harlan, J., dissenting). ↩︎
38. 377 U.S. 533, 577 (1964). ↩︎
39. 462 U.S. 725, 727–28 (1983). ↩︎
40. Nelson Lund, From Baker v. Carr to Bush v. Gore, and Back, 62 Case W. Res. L. Rev. 947, 948 (2012). ↩︎
41. 578 U.S. 54, 74–75 (2016). ↩︎
42. Dept. of Comm. v. New York, 588 U.S. 752 (2019). ↩︎