Article 1, Section 2, Clause 1: Composition and election of Members

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.

Article 1, Section 2 creates the House of Representatives, one of the two chambers of Congress. We have already discussed the historical and textual basis for regarding Congress as the supreme branch of the federal government under the Constitution, albeit not an unchecked branch. We have also discussed the reasoning that led the Framers to divide Congress against itself, by dividing it into two chambers, elected by different constituencies, through different processes, and with different prerogatives. The larger of these chambers was to be the House of Representatives, with 65 original members, versus 26 for the original Senate.

Just as Congress is given pride of place in the Constitution, so the House of Representatives is given pride of place in Congress. This ought to be reflected on by those inclined to describe the Senate as the senior chamber of Congress. It is true that the Senate has more enumerated prerogatives than the House; that its members are fewer and are chosen for longer terms; that they are elected by state rather than population; and that they were originally elected by the state legislators rather than voters at large. It is also true that the Framers intended the Senate to be the more deliberative body. It is not even altogether wrong to described the intended role of the Senators as being the adults in Washington. Nevertheless, the Framers seem to have regarded the House of Representatives as the seat and wellspring of democratic governance under the Constitution, and the key to the federal government’s democratic legitimacy. It is here that the people of the United States are supreme.

A.I S.1 C.1 declares that the members of the House are chosen by the people of the individual states. This is the key. Everything else in A.I S.1 is an elaboration of how this takes place and what it means. Clause 2 defines who is eligible to be elected as a Representative. Clause 3 defines how Representatives are apportioned to the states, requiring that it is to be in proportion to the population, with important qualifiers (some now blessedly obsolete). We think it significant that Clause 3 also ties direct taxation to representation in the House: “No taxation without representation.” The requirement that each State have at least one Representative is consistent with this requirement. Clause 4 requires that any vacancies be filled by special election, rather than appointment or succession, so that Representatives are always chosen by the people, and Clause 5 sets forth the special prerogative of impeachment and the prerogative of the House to choose its own officers. We will revisit each of these clauses in more detail in due course.

Let us focus our attention now on Clause 1. Representatives are chosen by the people, and the clause explains what this means: They are elected every two years, by those citizens of each state who are qualified by that state’s own constitution to vote for members of the most numerous branch of the state legislature.

Election every two years meant that the Representatives would be compelled to be responsive to the policy preferences of the people of their district, or be swiftly voted out of office. We do not believe the Framers had any particular expectation that Representatives would be frequently turned out of office. This was not the experience of the Commons in England or of the colonial legislatures in America. No provision is made in the Constitution for term limits, and James Madison himself served four terms in the House before declining to seek a fifth term. The mere threat of failing of reelection would, it was thought, ensure that the Representative would be compelled to keep his finger on the pulse of popular opinion. We believe that this is largely how it has worked out, though, we freely admit, imperfectly; a good topic for a future philosophical post.

However, it is important to understand how a representative differs from a delegate. A delegate is simply a messenger delivering a vote already dictated by his constituents. In an age when electronic plebiscite would be relatively easy and inexpensive to organize, there is no reason to have representatives at all if they are bound to vote precisely for what their constituents would vote for in such a plebiscite. Rather, the ideal Representative votes the way those he represents would vote if they could devote their full time to examining the issues and debating them with others holding different interests and views.

Lawmaking by representation rather than plebiscite is a solution to the problem of rational ignorance. This is a concept in public choice theory, the branch of economics that deals with how incentive structures affect human behavior in connection with government. The basic concept is that a voter who has a very small say in a decision (because he is only one out of thousands to millions of voters) has very little incentive to become well-informed on the issues bearing on that decision. He is also not in a position to negotiate compromises. There is now a wealth of empirical evidence supporting what seems to be a sound theory regarding voter behavior.

This was understood by Edmund Burke, who in his 1774 Speech to the Electors of Bristol declared:

Certainly, gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

My worthy colleague says, his will ought to be subservient to yours. If that be all, the thing is innocent. If government were a matter of will upon any side, yours, without question, ought to be superior. But government and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that, in which the determination precedes the discussion; in which one set of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?

To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience, – these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.

Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of parliament. If the local constituent should have an interest, or should form an hasty opinion, evidently opposite to the real good of the rest of the community, the member for that place ought to be as far, as any other, from any endeavour to give it effect. I beg pardon for saying so much on this subject. I have been unwillingly drawn into it; but I shall ever use a respectful frankness of communication with you. Your faithful friend, your devoted servant, I shall be to the end of my life: a flatterer you do not wish for.

We acknowledge that this kind of principled representation seems to be scarce in the House in our day. We doubt it was much more common in Burke’s day.

Let us turn now to the manner of election. There were in 1787 only the beginnings of a recognition of a universal right to vote. Women, by and large, could not vote: New Jersey permitted unmarried women who owned property to vote, but this was exceptional. Even as thoughtful, literate, and educated a woman as Elizabeth Willing Powel wrote (in 1785):

A fine woman is totally unfit for government and what we commonly called the great affairs of public life. [Women] are quick at expedient, ready in the moment of sudden exigencies, excellent to suggest, but their imagination runs riot; it requires the vigor of mind alone possessed by men to digest and put in force a plan of any magnitude. There is a natural precipitancy in our sex that frequently frustrates its own designs.

Most states imposed some combination of other requirements on voters, such as ownership of property, payment of certain taxes, or literacy.  Even today, there is a minimum voting age, which we will examine in due course. And, of course, slaves could not vote.

The requirement to own property reflected a desire to restrict the vote to citizens with “skin in the game”, since property taxes were the major source of government revenue in many jurisdictions in 1787. But, together with poll taxes, this also had the (no doubt desired) effect of restricting the vote to the wealthier portion of the population. This was, after all, a society in which material success was taken as an indicator of the quality of the person. (Before being too shocked, we should reexamine our own attitudes; and we should remember that the attitude in 1787 America was in sharp contrast with most European practice, in which the middle class was despised and excluded from power, in favor of a belief that quality of person was determined entirely by noble parentage.) Literacy as a requirement to vote seems frankly rather defensible to us; or would, if we were not aware of the lessons of history and the great potential for abuse. We accept that the right course is to seek to make voters literate, rather than to seek to make only the literate voters.

But the seed had been planted and was already taking root. In most states, the most numerous chamber of the legislature was chosen by the broadest cross section of voters, which makes the intent clear, if “by the People” was not already clear enough. The Reconstruction amendments would enshrine the principle of universal male suffrage, though unheroic political deals nullified this in practice in much of the South until the 1960s. Universal female suffrage was likewise enshrined in 1920. Poll taxes were prohibited in 1965. The principle of “one man, one vote” was established in case law at about the same time, though, alas, by a series of rather muddled court decisions that in some cases  weakened the federal structure. (We will revisit this in a future post.) Another series of muddled court decisions revolved around the minimum voting age, but were resolved in 1971 by Constitutional amendment, settling the issue properly. (And, we believe, incorrectly; another topic for a future post.)

We have quibbles with the choice of minimum voting age, and wish that there was a safe and practical way to impose a minimum level of literacy on voters. But there is not, and we fully support voting rights for all citizens except convicted felons, the mentally incompetent, and the underage. We believe this was the spirit and intent of Article I, Section 1, Clause 1.