Monday, October 26, 2015


The Founders of our nation knew that the love of power is a natural human tendency. They knew from history that people who gain power rarely relinquish it voluntarily and almost always try to extend it.

So it is with the United States House of Representatives. Despite the fact that the Constitution commands that the House expand proportionally to the population of the nation at every census, members of Congress have, for more than one hundred years, frozen the size of that august body at 435.

Why limit the Congress to 435 Representatives? Is it logical to say “because that is the size of the chamber”?  Or, “because that’s all the chairs or desks we have”? Of course not.

The size of the House has been frozen at 435 for one reason and one reason only: because those 435 people do not want to share their power with anyone else. They want to stay in office; they want to gain seniority, they want to get key committee assignments and party offices. And they want the power that comes with those jobs.

The alienation of the American people from their government can be largely traced to this one big power grab. By freezing the size of the House, members have assured that their constituencies get bigger every year. Bigger constituencies mean more expensive elections. And that means more money has to be raised.  

Some years ago the United States Supreme Court pompously announced that the principle of one-man-one-vote must be observed in all federal and state elections. The result has been some very preposterous practices.

Gerrymandering has become a fine art. New York recently reapportioned its Congressional delegation to a standard of plus or minus one person. That is a totally fictional exercise: the census tracts they used were already two years old and were not that accurate to begin with.

And ridiculously, despite such silly hyper-technicality in many states, the actual distribution of seats in the House of Representative is grossly disproportioned when considered State by State. Thus there are 7 States with delegations below 90% of the norm and 4 States whose delegations are above 110% of the norm.

The Founders originally proposed that the House of Representatives consist of one representative for every 50,000 people. That proposal, known as Article the First, was never ratified, and Congress was left to determine the ratio.

Of course, the Founders had no idea that the nation would one day claim a population of 308 millions of people. As a practical matter, the 50,000 ratio would require a very large assembly and would have great difficulty winning popular approval.

But there is another approach, which has been discussed for years. It’s called the Wyoming Plan. The Constitution requires that each State have at least one representative in the House. Since Wyoming has the smallest population, it is logical to use the population of Wyoming as the base for calculating the size of the House.

Fair enough, simple enough. The difficulty is that merely dividing the population of each State by the population of Wyoming results a whole number followed by decimals. What do you do with the decimals?

This question typically leads to two answers: either Wyoming gets one Congress member because its population equals 51% of the norm, or because its population equals 151% of the norm. Putting it another way, either Wyoming gets one member because its population is the bare minimum required, or Wyoming gets only one member because its population is not quite large enough to warrant two members.

I call these three options Half Wyoming, Double Wyoming and Straight Wyoming. Half Wyoming would actually reduce the size of the House to 273 members; Double Wyoming would increase the House to 814; and Straight Wyoming would increase the House to 546.

The United Kingdom has a House of Commons consisting of 650 members representing a population of 64 million. Canada’s 35 million are represented by 338 members of their House of Commons. Both of those nations are seven times more democratic than the good old USA.

And just what are our illustrious Presidential candidates saying about that?



  1. Judge, would it really matter if the size of the House were increased? . In the end it comes down to the party that has the majority. 218 vs 217 would operate the same as 418 vs 417.

    1. Ron:

      I believe it would make a difference. A larger house means smaller districts. Smaller districts enable outside challengers for Congressional seats. A larger House would be harder for the national Parties and the lobbyists to co-opt and control.


  2. Your honor
    Is it safe to say our Constitution is out dated
    Should we now update via outside the got
    Since the got makes laws and policies that protect themselves we should take back our vote

    1. Brian: I would never say the Constitution is outdated. It is an enduring charter of our freedom. But the Founders expected us to amend it from time to time as our experience suggests. That's why we need a convention.

  3. Judge Brennan said:

    "The United Kingdom has a House of Commons consisting of 650 members representing a population of 64 million. Canada’s 35 million are represented by 338 members of their House of Commons. Both of those nations are seven times more democratic than the good old USA.

    "And just what are our illustrious Presidential candidates saying about that?"

    Actually, Democratic candidate Larry Lessig does address this issue in his proposed Citizen Equality Act.

    The proposed legislation is being crowd-sourced, meaning that the public can help shape it.

    For more information visit

    P.S. Lessig has disavowed his previous strategy that involved early resignation.

    1. Al: Larry Lessig is a very effective leader. A couple of years ago, he was on a good track seeking to promote an Article V Convention. His current effort is ill advised. Reasons: 1) It relies on Congressional legislation to correct problems with the Congress. They will not cooperate, and in any case reforms adopted by Congress can be repealed by Congress. 2) So called ranked voting in multi-member districts will not alleviate winner-take-all results. The Parties will publish and support slates of candidates. The majority Party's slate will win. The solution is to restrict voters to voting for a single candidate.

  4. I find the "Straight Wyoming" approach the most attractive, and I'm from NY.
    Yet more evidence how desperately we need an Article V convention.
    Good post, Judge.

  5. I would favor the double Wyoming option. 814 representatives for 308 millions is still a long way from the UK's 650 for 64 million, but it is the largest House possible using the smallest state as the base for calculation.