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November 29, 2021

November 29, 2021

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When it Comes to the Acts of Congress, those Emperors Have No Clothes

by | Oct 25, 2021 |

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Most Americans are aware that there are 435 members in the House of Representatives. But is that the number of members required by the Constitution? Sure, Congress passed a law in the early 20th century setting the limit, but is that law constitutional? And if that law is not made in pursuance of the Constitution, that means it’s void. Just like in the story “The Emperor’s New Clothes,” everyone just pretends that everything is fine. Maybe a few of us should take on the role of the young boy in the story and point out that the Emperor has no clothes.

Let’s start this tale where all good stories should start: At the beginning.

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Constitution, Article VI, Clause 2

The Constitution of the United States is the supreme law of the land. Only laws of the United States made in pursuance of (following) the Constitution are considered supreme as well. Any act of Congress that is not pursuant to the Constitution is repugnant (contrary) to the supreme law of the land. According to the Supreme Court of the United States, such an act of Congress is void (empty or vacant).

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

Marbury v. Madison Opinion

This idea, that the Constitution of the United States is the supreme law of the land, is the bedrock to the rule of law, the concept of self-governance, and our constitutional republic. So when those in government violate the Constitution, they are not merely acting unconstitutionally; they are violating the law, exercising unjust powers, and stealing from the American people their ability to consent to the actions of their government. Which brings me to the Apportionment Acts that Congress has passed.

Apportionment

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.

U.S. Constitution, Amendment XIV, Section 2

Article I, Section 2, Clause 3 of the Constitution was amended by the Fourteenth Amendment to remove the Three-Fifths Clause, which limited the counting of non-free persons for the purpose of apportionment. The reason the federal government conducts a census every ten years is because it’s required by Article I, Section 2, Clause 3 of the Constitution.

To understand this apportionment of representatives, we have to understand why we have a bi-cameral national legislature. Many compromises had to be made in order for the Constitution to be signed and ratified. One of those compromises had to do with representation in Congress. Large states wanted representation based on population, which would give them an advantage in Congress. Smaller states didn’t like that idea and wanted equal representation among the states, which would give them, and their citizens, a greater say in legislation. The compromise was a bi-cameral, or two-house, legislature, how their members would be chosen, and most important to this discussion, the role of those houses.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. 

U.S. Constitution, Article I, Section 1, Clause 1

The very first legally binding line of the Constitution states that all legislative or law-making power would be vested in a Congress consisting of a Senate and House of Representatives. To understand the role of these two houses, we need to read the first line of the section of Article I that creates them.

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

U.S. Constitution, Article I, Section 2, Clause 1

Members of the House of Representatives are chosen by the people, because their job is to represent the people. Since the country’s population changes over time, the Framers of the Constitution allowed for those changes by requiring an enumeration every ten years so the representatives could be apportioned properly. More on that later.

The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years, and each Senator shall have one Vote.

U.S. Constitution, Article I, Section 3, Clause 1

On the other hand, the Senate was to be made up of an equal number from each state. Although the Seventeenth Amendment changed the method of choosing electors, the role of the Senate is obvious from the original method of doing so, by the legislature of the state they were to represent.

So the framers of the Constitution gave us this bi-cameral legislature, with one house chosen by the people and the other chosen by the states. One house was to represent the people, the other the states. To accommodate the changes in population that would inevitably happen, we enumerate the people every ten years so we can apportion the representatives properly.

Back to the apportionment. Today, we focus on how the 435 seats in the House are divided up among the states, which is the definition of apportion. However, the Constitution does not set a fixed limit on the number of representatives.

The Number of Representatives shall not exceed one for every thirty Thousand, but each state shall have at least one Representative; 

U.S. Constitution, Article I, Section 2, Clause 3

The 2020 Census recorded a population in America of 331,449,281 residents. With a little simple math, that means that the House of Representatives should have at least 11,049 members. So why doesn’t the House have eleven thousand members? Because of a law,” Congress passed early in the 20th century.

In 1911, Congress passed a routine Apportionment Act, based on the 1910 census, setting the size of the House of Representatives to 433 members (up from 391), plus allowing two more members when the states of Arizona and New Mexico were admitted into the union. During the debate on this legislation, concerns were raised that the House was growing too large, making it unwieldy and difficult to manage. Then in 1920, for the first time, Congress failed to apportion membership in the House after a census. This led to The Permanent Apportionment Act of 1929, or at least I think it did. When I searched for The Permanent Apportionment Act, I was directed to 2 U.S.C. §2, but when I checked that statute, the text was omitted. There was only a note pointing to the 1911 law that set the size of the House at 435 members.

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Impact

So why all of this concern over an almost 100-year-old piece of legislation, of which I cannot even find the actual language? After all, if Congress cannot seem to get much done with only 435 members in the House, imagine if there were 11,000! Of course, there are plenty of people, myself included, who think life would be much better if Congress didn’t do nearly as much as it does, especially since most of what they do is illegal. To quote the Chairman of the House Committee on the Census in 1911:

Members are . . . supposed to reflect the opinion and to stand for the wishes of their constituents,… If we make the ratio [of persons per Representative] too large, the idea of representation becomes attenuated and less definite. The personal interest of the voter in his representative becomes less important to him, and we may lose something of the vital strength of our representative form of government.

The 1911 House Reapportionment

While limiting the number of members in the House may make it easier for them to get things done, it also makes it harder for them to fulfill their constitutional duty of representing the people of their district.

When was the last time you tried to communicate with your House member? If you email or write a letter to your member, you’ll probably get a form letter in reply. If you call their office, you’ll get a staffer. And unless you have some serious pull, it’s unlikely you can get a face-to-face meeting. Why? While there are probably plenty of reasons for this, one of them is undoubtedly how busy your representative is. With over 331 million Americans and only 435 members of the House, means each member represents over 750,000 people. It also means that if they spent only five minutes with each of their constituents, 24 hours a day, seven days a week, it would take over seven years to meet them all. There just aren’t enough hours in the day for your representative to actually know your opinion on any particular subject, not to mention your chance to petition them for a redress of a grievance. If your House member-only represented 30,000 people, you might still have a hard time getting a meeting, but at least time would not be as much of an issue. They could spend five minutes with almost every person in their district every year working only 9-5 five days a week.

There was an attempt to limit the expansion of the House of Representatives in 1789. One of the amendments Congress proposed to the states was never ratified.

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.

First Amendment Proposed for the Constitution of the United States

It seems that by 1929 Congress couldn’t be bothered with actually getting the consent of the governed. They thought that the House was large enough, so they simply passed a law. That brings us back to the foundation we laid at the beginning of this article.

Supremacy vs. Convenience

The Constitution says we are to have one member of the House for every 30,000 people, and that has never been amended. Yes, Congress has apparently passed legislation limiting the size of the House to 435 members. Since that legislation is not pursuant to the Constitution, it’s therefore repugnant to it and, according to the Supreme Court, that law is void.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

Marbury v. Madison Opinion

If the law limiting the size of the House is void, doesn’t that mean we should have over 11,000 members to represent us? So why don’t we? In short, it’s much like the people in the story of The Emperor’s Clothes; the American people are either afraid of, or ignorant of, the facts, and are therefore unwilling to point out the obvious. I haven’t even found any evidence that this Permanent Apportionment Act of 1929 was even challenged in court, much less among the states. This lie has been going around for so long most Americans have been gaslighted into believing it’s true.

This is one more example of the government in Washington, D.C., being out of control. At this point, I have no confidence that if the Permanent Apportionment Act were to be challenged in federal court, those in the judiciary would even recognize how repugnant it is.

Should the House of Representatives have over 11,000 members? I’m not sure. What I do know is that it’s not up to Congress to determine the size of the House; it’s up to We the People through our states. Yet we were never consulted, neither have we consented to this change. It seems almost everyone, from those elected to federal offices to the average, everyday American, has come to believe that whatever Congress does is not only legal, but the supreme law of the land. So I guess I must accept the role of the small boy, pointing out that when it comes to the acts of Congress, those emperors have no clothes.

Paul Engel

Author and speaker Paul Engel has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. That experience helps Paul explain difficult concepts in a way most people can understand. As one manager described, “Paul can take the most complex idea and explain it in a way my grandmother can understand.” Freely admitting that he “learned more about our Constitution from School House Rock (a Saturday morning cartoon) than in 12 years of school,” he says that anyone can be a constitutional scholar. Since 2014 I have been helping everyday Americans read and study the Constitution of their country and teaching the rising generation to be free. Using news and current events as a springboard, I explain the Constitution and encourage others to stand up and secure the blessings of liberty for themselves, their children, and the nation.

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