The Need for a Constitutional Amendment to Eliminate Gerrymandering When Selecting Members of the House
TEXAS CONGRESSTIONAL DISTRICTS TAKING POLITICS INTO CONSIDERATION
IN 1787, WHEN 55 MEN GATHERED IN PHILADELPHIA to write a Constitution which would create a new nation. One of the principal hopes, if not goals, of each was to construct it in such a way as to minimize political factionalism at the federal level. They understood very well the power of factionalism to destroy, for that was why they were in Philadelphia holding a Constitutional Convention. They had already seen how political factions made mute the Continental Congress and any idea of a united nation, in fact, they witnessed how factions nearly cost the colonies their War of Independence with England. These prescient men didn't want to see that happening again if they could help it.
At the writing of the Constitutional, many compromises had to made, especially with regard to insuring State passage. Consequently, often only guiding principles were laid out with no direction to the States on how to implement them; on such principle was the apportionment of State citizens for the purpose of electing State representatives to the House of Representatives. All the Constitution currently provides in Article i, Section 4 is that:
The Times, Places, and Manners of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such regulations, except as to the Places for Elections of chusing [sic] Senators.
Notice the underlined phrase. It was argued by several members to strike this phrase out; clearly it wasn't. One of the reason's it wasn't is James Madison's thinking:
The necessity of a Genl. [sic] Govt. supposes that the State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local conveniency [sic] or prejudices. The policy of referring the appointment of the House of Representatives to the people and not to the Legislatures of the States, supposes that the result will be somewhat influenced by the mode, This view of the question seems to decide that the Legislatures of the States ought not to have the uncontrouled [sic] right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or vivâ voce [sic], should assemble at this place or that place; should be divided into districts or all meet at one place, shd [sic] all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures. and might materially affect the appointments. Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould [sic] their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the Natl. Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter. What danger could there be in giving a controuling [sic] power to the Natl. Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures. If the latter therefore could be trusted, their representatives could not be dangerous. 2. of Representatives elected by the same people who elect the State Legislatures; surely then if confidence is due to the latter, it must be due to the former. It seemed as improper in principle--though it might be less inconvenient in practice, to give to the State Legislatures this great authority over the election of the Representatives of the people in the Genl. [sic] Legislature, as it would be to give to the latter a like power over the election of their Representatives in the State Legislatures.
Madison's worries seem to have come to fruition in this country today with the misuse of Gerrymandering.by several states, haven't they. But if Congress has the power to remedy it by Law, why do we need a Constitutional amendment?
There are two reasons, 1) Congress hasn't done anything permanently to address the core abuse and 2) any law they pass, can be un-passed. It is not that Congress has never used authority given to them in Article 1, Section 4, they have. The use of this authority is why the Presidential election falls on the same day in every state, why each state has exactly the same number of election districts as they have representatives, and why only one representative can be elected from each district. One "Passed/Un-Passed" law was the requirement for states to that districts be composed of contiguous territory, be "compact," and have equal populations within each State. Congress then let this law lapse. The only part in operation today is the equal population clause due to a Supreme Court ruling involving equal protection.
BEFORE READING THIS NEXT SECTION, LET ME START WITH A POLL QUESTION.
Amendents Normally Begin in Congress; however, Is There a Way for the People to get an Amendment Introduced?
HOW DOES THE CONSTITUTIONAL AMENDMENT PROCESS WORK?
THERE ARE TWO WAYS for a Constitutional Amendment to become a reality, and neither of them have anything to do with the President. They are through a joint resolution of Congress and by the call for a Constitutional Convention by 2/3 of State legislatures. The latter course has never been tried since the original Convention, but the former method has been invoked more than 27 times leading to the current set of 27 Amendments currently on the books.
Notice that the People, as a direct motive force, are left out of the process, as is properly the case in a republican form of government. Why is this so? Because the People express their wishes and desires through the representatives they elect to both state and federal governments; if the People want a Constitutional Amendment to happen, they must elect representatives who support that idea. Consequently, the answer to poll is that "No, there is no direct way to make this happen".
In any case, the most common way is for 2/3rds of each House to agree to a joint resolution to propose the Amendment. From there, it goes to the National Archives and Records Administration, specifically the Archivist of the United States, and lately, the Director of the Federal Registry (who knew this?), for administration of the ratification process. The Archivists then submits the proposed Amendment to the State's governors who then submits it to their respective Legislatures. Once 3/4ths of the State legislatures ratify the Amendment, and it has been certified by the Archivist, the Amendment is passed; there is no practical time limit for this to happen.
TEXAS CONGRESSIONAL DISTRICTS WITHOUT TAKING POLITICS INTO CONSIDERATION
A PROPOSED CONSTITUTIONAL AMENDMENT REGARDING CONGRESSIONAL REDISTRICTING
OK, NOW THAT I HAVE SAID ALL OF THAT, what is it that I propose we do about it? I propose, of course, that Congress pass a joint resolution for the 28th Amendment to the Constitution of the United States that reads as follows:
1. The Manner of Holding Elections for Representatives, shall be prescribed in each State by the Legislature thereof insofar as it also provides for equal representation by each member; that each election district be of regular shape and without regard to the political make-up; the election districts be constructed in such manner as to allow for, should the People so chose, the election of Representatives in the same ethnic proportion as that contained in the State as a whole.
2. This Amendment shall not contravene any other Article in the Constitution
3. The Congress shall have the power to enforce the article with appropriate legislation.
I AM NOT SURE OF MY WORDING of that last requirement, "the election districts be constructed in such manner as to allow for, should the People so chose, the election of Representatives in the same ethnic proportion as that contained in the State as a whole." My intent is the construction of the election districts encompass the population so that if candidates representing all ethnic groups actual ran in most of the districts, that when the dust settled, there would be a reasonable chance the ethnic make-up of that States delegation approximates the ethnic make-up of the State as a whole. Of course, as the states population shrinks, and therefore its delegation count, mathematically, this becomes more difficult, but the point is the boundary lines are drawn so as not to exclude one group or another overall.
IT SHOULD BE CLEAR TO ALL that the need for this kind of Amendment (or action from Congress) is critical to the effective operation of our nation. If this Amendment were in place, we would not be facing the gridlock we have been in since 2009 as states like Texas would not have been able to Gerrymander hard-core Conservatives into power - the very thing James Madison warned us against (not that he cared that it was Conservatives, only that it was a faction).
Are politicians going to do anything about this? Probably not. It is left to the People, fed up with the way things are, that can effectuate any change; and that is a tough row to hoe, for sure. Its tough, because as I showed earlier, the People do not have a direct method of putting an Amendment on the floor (and, having said that, it is probably a good thing in the long-run that we cant'); therefore our only method is through pressure and the election process.
People have to let their representatives know this is what they want, and then keep letting them know. When candidates are electioneering, ask them where they stand on the issue and what do they intend on doing about it. I wonder how many of them know they actually can do something by simply passing a law? Pressure, and direct amendments can be brought at the State level as well. Several states have now switched to a form of non-partisan redistricting where politics has largely been removed and the process has been brought more in line with the original concept in the Constitution's writers had in mind.
One thing is certain, however, if you do nothing, then it will be politics as usual and you have only yourself to blame.
© 2013 Scott Belford
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Comments
MizB and Scott, Negative is like darkness, there is no way you can add, divide, multiply or subtract darkness from or to darkness and get light, the best you can do is get the thin line dividing the two which is neither. Numbers are just that accurate, you can't get them to cross the line ZERO is.
- AUTHOR
I see what you mean, Doris.
Man made the calculator to fulfill their desire to help deceives others, not to represent truth. To what limit haven't man gone to deceive and control man? There is none. If man make it it's for a monetary gain and not to represent truth.
You can bet your bottom dollar you are left with it as well as the senators since Amendment 17 gave We The People the right to electing them. Also a matter of fact, I can hardly see anything the government is doing that is constitutional. Read my hub "The US Constitution's Spirit" and see how little I see done by the government is constitutional.
- AUTHOR
I am a mathematician and I can guarantee you that -1 x -1 does not equal -1. It equals positive 1. Try it out on a calculator.
In any case, I guess we are left with Elijah thinking that our House of Representatives are 100% illegally elected.
Doris, Logic, wisdom and understanding is my forte and not "follow leaders blindly."
Yes, English is ever changing because its leaders can't control the people if they allows it to remain standardized. That is yet another reason the USA is called Mystery Babylon, she is the one who has been making the many changes. Take the word philosophy, it's a Greek word with "Philo" meaning "love and lover" and "sophy" meaning wisdom but the USA say that is a person with the most advanced schooling degree, PhD, that today some Greeks say it is wisdom rather than "lover of wisdom" as it mean in Greece. And there are so many other words done the same we will accept because we are schooled to follow the dictate of the nation's leaders. I reject being deceived into misunderstanding what the words originally meant. That is why I dropped out mom civilization to find truth for myself. I refuse to fall for the "wooden Nickels" they are selling. I choose to stick with the original, not the confusing changes.
We are speaking of linear English, not concrete math. They are not equivalent. It doesn't matter that two negatives don't make a positive in math. It is a matter of translation just as if one were to be translating from a foreign language. I am knowledgable of the changes in English in the last 300 years. Math is concrete, except when some mathematicians get to playing with it. However, English is ever changing. Elijah, I love you man, but English is definitely not your forte.
Adding and multiplication are in the same category, subtracting and division are in the same category, so to say its is multiplication is still saying -1 x -1 still takes it deeper into the negative realm.
When reading the so called "double negative" in english it does not suggest a positive in all cases. Your exampled ( he didn't say nothing ) does bring it into the positive realm but the distance between them in Article 1.2.2 ( No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, AND WHO SHALL NOT, WHEN ELECTED," be an Inhabitant of that State in which he shall be chosen. ) is not in the same category. Your example is side by side but that Article has two different things between them therefore using the negative at that juncture REINFORCES the negative from before it.
- AUTHOR
dou·ble neg·a·tive /ˈdəbəl ˈneɡədiv/ nounGRAMMAR
1. a negative statement containing two negative elements (for example he didn't say nothing ).
2. a positive statement in which two negative elements are used to produce the positive force, usually for some particular rhetorical effect, for example there is not nothing to worry about!.
"In some languages, double negatives cancel one another and produce an affirmative [this is the case in the English language]; in other languages, doubled negatives intensify the negation.
I do have to ask, is English your first language? Maybe that is the problem - different cultures.
BTW, in English, a double negative is multiplicative. I.e., (-1) times (-1) equals positive 1.
Scott, "shall not, when elected, be an Inhabitant of that State in which he shall be chosen" DOES NOT MEAN THE SAME AS "NO Person shall be a Representative who isn't an Inhabitant of that State in which he shall be chosen". when now add -1 to -1 we get -2 and not zero nor +1. The double negative is reinforcing the person is inability to serve as a Representative their first time of being elected as a citizen of the electing state.
- AUTHOR
How interesting, Doris, thank you very much. What an interesting job as well.
I sure wish Madison had used modern English when he wrote the 2nd Amendment; would have saved a lot of legal problems, lol.
Scott, as a retired legal editor of 30 years, part of my job was to interpret and rewrite old archaic English into modern English so there would be no misinterpretation of their meaning. I did this under the direction of a very good Code Revisor and legal scholar. Your interpretation is correct, and if I were assigned that sentence today, here is how I would rewrite it:
"A person is not eligible to be a Representative who has not reached twenty-five (25) years of age and has not been a citizen of the United States for a minimum of seven (7) years. The person shall be a legal resident of the State in which he is chosen."
That is the interpretation of the old language. I've tried to explain this to our dear friend Elijah in a forum before, but he is determined that he is the Constitutional scholar. I am not a Constitutional scholar on this, but I am a legal grammarian.
Note also that in addition to modernizing the words, I have also changed the punctuation to match modern punctuation rules. At the time the Constitution was written, printing was expensive and time consuming, and readers actually read the documents to the delegates. The sentences were punctuated using commas where the reader was expected to draw a breath. So archaic punctuation can't be used to interpret old laws either. I've tried to explain this to our dear friend Elijah, but he refuses to grasp the concept. Please rest assured that your interpretation of the meaning is accurate. I've just simplified the language even more.
One of the reasons the Constitution has not been modernized is because it would take a Constitutional Convention, and that would open a whole can of worms.
- AUTHOR
Just to be clear - are you trying to say that all of the members currently in, and in the past, members of the House of Representatives have been illegally elected?
Also, let me try again by taking out the intervening words.
"No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, "and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen"
Becomes
"NO Person shall be a Representative who shall NOT be an Inhabitant of that State in which he shall be chosen"
That is exactly the same as saying in more modern English
""NO Person shall be a Representative who isn't an Inhabitant of that State in which he shall be chosen"
That is saying IF you are NOT an inhabitant of the state to which you were elected to represent, you CAN'T be that states Representative.
Noooo, Scott, No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, "and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen" be changed to "and who has, when elected, be an Inhabitant of that State in which he shall be chosen" because of the double negative.
That last part, even with the double negative, means that the person MUST NOT BE A CITIZEN OF THE STATE FOR WHICH TRHEY ARE CHOSEN. That argument you are giving is used ONLY TO NOT follow the Constitution. Look at the first part of Amendment 12 "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;" that happens before the Primary Election. Suppose you are saying those Electors are who elect the president after the people have voted but THEY DON'T.
It isn't stated how those electors are for the purpose of finding president and vice candidates to represent that state during the national elections. It suggests several things, 1. no parties. 2. each state can have a presidential and vice candidate to represent it. 3. their campaigning--if allowed--is only in one state. Then when we get to the second part ing says Congress shall notify the nation of all of the candidates and what they stand for to allow each individual to consider who they believe to be the better candidates for president and vice independent of each other.
So, when we see the presidential electors' purpose we can better understand the Representatives', and now Senator since Amendment 17, electors. Check it out, Scott, and see if I'm not correct.
- AUTHOR
Remember,
"No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."
is a double negative which turns everything else in the sentence with a "no" into a positive.. It starts out with a "No"
Take away the "No" and the sentence would read
A Person can be a Representative who has attained to the Age of twenty five Years, and has been seven Years a Citizen of the United States, and who has, when elected, been an Inhabitant of that State in which he is chosen."
If I am, please show me how a state is supposed to obtain people from some other state for the people to elect for their state's congressman.
- AUTHOR
Sorry, I think you are very confused.
Scott, The Electors are chosen from the District of the state that has a Representatives in the state's congress because the Federal Representatives "shall not, when elected, be an Inhabitant of that State in which he shall be chosen."
- AUTHOR
Thanks for reading Elijah. I am not sure of the religeous connotation to the Constitution, so I will let that go.
As to the title, it says what I want it to say (although I am going to change it to be a little more direct.
I think you are misreading Article 1.
We are, in fact, using the method specified in Article 1.2.1 which is -
"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."
The "Electors" mentioned in this section are the Representatives themselves. They will be chosen by the People of each State.
To qualify to be a Representative (Elector) Section 2 says they 1) must be at 25 years old, been a citizen of the United States for at least 7 years, and be a citizen of the state they were elected in.
Why the writers chose to use double negatives, but that is what Article 1.2.2 means when it says -
"No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."
I disagree with your title "The Need for a New Constitutional Amendment Regarding the Choosing of Federal Representatives" because We are not using the method in the Constitution. Look at Article 1.2.2 and see. The people are supposed to select Electors who go to some other state to select candidates The People elect as their Representatives. Now that Senators are Elected by The People that same procedure is how they are to be elected.
I have quite a long interpretation of how the Constitution is supposed to operate that shows this nation has never actually implemented it. It's called "The US Constitution's Spirit" if you're to look at it. The Bible's Revelation 12:5 indicates the Constitution is the "Rod Of Iron" that will bring this nation to peace before the rest of the world follows perf Isaiah 2:2-4.
- AUTHOR
I couldn't agree more.
Interesting. I went back and read my March 4, 1789 copy of the original twelve proposed amendments to the Constitution (became the Bill of Rights), and neither word appears there either. My interpretations tend to be unique. That said, my guess would be the writers sought to convey gist of the message under the assumption that good faith discourse between honest and well-intentioned people would serve as the basis for government debate and interactions.
We do not have that today, instead we have finger-pointing, name-calling, and King-of-the-Hill climbing, all to an audience who is willing to cheer their side on while watching the show. The one thing football and politics have in common is this; the only ones who pay are the spectators. The players, coaches, and any who cater to the spectators’ enjoyment will profit from the game. The founders did not anticipate government being played out as a circus.
I went back and re-read Article IV, section 3 - concur it would be difficult, but would still say it is the next logical step.
- AUTHOR
What say you about the Supremacy Clause in the Constitution and the fact that the word "expressly" or "explicitly" which was used in Article 2 of the Articles of Confederation was purposely dropped from the 10th Amendment or this quote from the Notes on the Constitutional Convention from James Madison contained in a hub I wrote based on those notes:
"Gov Morris, George Mason (VA), and Roger Sherman (CT) made the following points:
"the distinction between a federal and national, supreme, Govt.; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation. He [Morris] contended that in all Communities there must be one supreme power, and one only".
[George Mason (VA)] "that the present confederation was not only deficient in not providing for coercion & punishment agst. delinquent States; but argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a Govt. was necessary as could directly operate on individuals, and would punish those only whose guilt required it.", and
that "the Confederation had not given sufficient power to Congs. and that additional powers were necessary; particularly that of raising money which he [Sherman] said would involve many other powers. He admitted also that the General & particular jurisdictions ought in no case to be concurrent."
Note that having said what he did, George Mason went on to oppose the resulting Constitution because he thought it gave too much power to the central government over the States.
As to restructuring the State borders, that will be tough as the process is clearly defined in the Constitution, and a lot of people, including Congress, have to agree on any change.
I concur that our founders intended the system they developed to be impartial to party. The founders also did not intend for our various sovereign States to be subservient to the federal system. However, that has evolved (beginning in April 1913). Political parties now rule and States are irrelevant with respect to formation of federal law. Many of my articles are about the deterioration of States Representation and how it has become secondary to Party Representation in the Senate, or about steps that could be taken to restore States balance to our system.
With respect to the phrase “restructuring of the States borders”, I refer to a possible future where State borders are subjected to the same sort of gerrymandering that occurs within our individual states now. From my point of view, that is the next logical step for the path we are on.
Healthcare is not the problem. However, its manner of implementation is a symptom of a broken system of governance.
- AUTHOR
Thank you for your thoughts @FitnezzJim, but I am not sure what you mean by "restructuring of the States borders".
There is no question about the need to reallocate representatives every census because states gain or lose population. It is the manner in which this is done that I am concerned with. Our founders intended it to be impartial as to Party because at the time they drew up the Constitution, they didn't envision political parties in the first place; they thought they were a very bad idea.
While you are at it, you might want to also consider an Amendment that prohibits major restructuring of the States borders, which would affect how Senators are elected.
And as added notes on the process: The way the representatives to the peoples House of Congress are allocated pretty much implies that districts within States be redrawn on occasion. Also, the addition of a State would drive a need to reallocate representatives. Both potentially impact the total number of representatives that a State can send to Congress.
The same thing happened in Arkansas a few years ago because of a huge population shift from the poverty stricken Delta to the fast growing conservative and Hispanic hub around the Northwest corner. There were some compromises made because of the reaction from the people of Central Arkansas, but we weren't able to stop all the Gerrymandering.
- AUTHOR
I appreciate the thoughts, HS, I am going set it up as a White House petition.
I certainly would be in support of this Constitutional Amendment, My Esoteric. The gerrymandering that goes on in the states by both parties is horrendous. Of course, it began to be done to the real extreme in Texas after the 2000 census. Tom DeLay engineered that massacre of Democratic and minority districts. This was the most obvious form of a naked power play. He has no conscience. Now the GOP have all learned from this and they made similar moves after the 2010 census. This needs to stop on all sides. Excellent Hub and proposal.
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