Legislative [mis]representation is the root of all evils --including the juristocracy
by Michael Warnken, guest commentator

In 1795, in Vanhorne’s Lessee v. Dorrance, 2 U.S. 304, Justice Patterson quoted generously from Sir Edward Coke:

“The power and jurisdiction of parliament, says Sir Edward Coke, is so transcendant and absolute, that it cannot be confined, either for causes or persons, within any bounds. And of this high court, he adds, it may be truly said, ‘Si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capacissima.’ It has sovereign and uncontroulable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal: This being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown; as was done in the reign of Henry VIII and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of King Henry VIII and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament." Vanhorne’s Lessee @ 307.

In 1795, William Paterson was a Justice on the U.S. Supreme Court; in 1776, Paterson had been one of the signers of the U.S. Constitution!

However, such power cannot be allowed to be too great. Justice story emphasizes this point with much gravity.:

“De Lolme has said, with great emphasis, It is, without doubt, absolutely necessary for securing the constitution of a state, to restrain the executive power; but it is still more necessary to restrain the legislative. What the former can duly do by successive steps, (I mean subvert the laws,) and through a longer, or a shorter train of enterprises, the latter does in a moment. As its bare will can give being to the laws, so its bare will can also annihilate them; and if I may be permitted the expression, the legislative power can change the constitution, as God created the light. In order, therefore, to insure stability to the constitution of a state, it is indispensably necessary to restrain the legislative authority. But, here, we must observe a difference between the legislative and executive powers. The latter may be confined, and even is more easily so, when undivided. The legislative, on the contrary, in order to its being restrained, should absolutely be divided.” Justice Story’s Commentaries § 531

Some of our founders noted that the legislatures would not do this on their own nor willingly:

“[George] Mason was convinced that once the House began meeting, it would resist efforts to add more members, which he believed necessary for the body to represent the diverse interests of the people. He gave Virginia as an example, where ten members of the House would be elected. He wondered why those individuals would agree to increase the size of the House and thus decrease the relative power that each would exercise. He said they would never ‘lessen their own power and influence...for the greater the number of men among whom any given quantum of power is divided, the less the power of each individual.’” Labunski, Richard (James Madison and the Struggle for the Bill of Rights Pg. 83)

That is why it is up to someone else to do this on their own. Madison assumed that the States would do it. They did not. Upon the ratification of the Civil War Amendments, there was a provision made to deal with such problems.

Amendment XIV

Section 2. 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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Justice Stephen Breyer notes the purpose and the proper interpretation of the Civil War amendments and that is to encourage participation in the democratic process. He states directly:

“The Civil War amendments sought to permit and to encourage those ‘long denied full citizenship stature’ to participate fully and with equal rights in the democratic political community.” Breyer, Active Liberty Pg. 78

The federalists knew that representation needed to be increased from time to time, perhaps not to the extent that the Anti-federalists did, but they elaborated such:

“At present some of the States are little more than a society of husbandmen. Few of them have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. These, however, will in all of them be the fruits of a more advanced population, and will require, on the part of each State, a fuller representation. The foresight of the convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government.” Federalist 56

In fact, they had advanced notions of proper proportions between one branch and the next:

“The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their professions. The former are generally objects of jealousy; and their administration is always liable to be discoloured and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large.” Federalist 49

A quick analysis of this statement to the origins of America show that the founders intended on this ratio. To examine this, we can look to the founding of the United States. It has not remained the case, however. An examination of the origin of the U.S. Government and their structures is necessary to see if this statement was true.

It is unclear how many judges were in operation after the Constitution and the Bill of Rights had been ratified and it is likely there were none. Perhaps there were some under the Articles of Confederation. However, it is only practical to look to the Structure of the Legislature Judiciary at the Time of the Founding of the United States with reference to the U.S. Constitution. The Federal Judiciary Act of 1789 established the number of judges in the nation at nineteen, with six Supreme Court Justices and thirteen federal judges, one for each state.:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum, and shall hold annually at the seat of government two sessions, the one commencing the first Monday of February, and the other the first Monday of August. . . . ” Federal Judiciary Act 1789, Section 1

“And be it further enacted, That the United States shall be, and they hereby are divided into thirteen districts, to be limited and called as follows, to wit: one to consist of that part of the State of Massachusetts which lies easterly of the State of New Hampshire, and to be called Maine District; one to consist of the State of New Hampshire, and to be called New Hampshire District; one to consist of the remaining part of the State of Massachusetts, and to be called Massachusetts district; one to consist of the State of Connecticut, and to be called Connecticut District; one to consist of the State of New York, and to be called New York District; one to consist of the State of New Jersey, and to be called New Jersey District; one to consist of the State of Pennsylvania, and to be called Pennsylvania District; one to consist of the State of Delaware, and to be called Delaware District; one to consist of the State of Maryland, and to be called Maryland District; one to consist of the State of Virginia, except that part called the District of Kentucky, and to be called Virginia District; one to consist of the remaining part of the State of Virginia, and to be called Kentucky District; one to consist of the State of South Carolina, and to be called South Carolina District; and one to consist of the State of Georgia, and to be called Georgia District.” Federal Judiciary Act 1789, Section 2

“And be it further enacted, That there be a court called a District Court, in each of the afore mentioned districts, to consist of one judge, who shall reside in the district for which he is appointed, and shall be called a District Judge…” Federal Judiciary Act 1789, Section 3

Now, we have the stick to which we compare the other branches of government at that time. We first look to the U.S. Senate and then to the U.S. House:

The Initial U.S. Senate amounted to the first thirteen states with two senators from each state.

“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.” Article I, Section 3, U.S. Constitution

This was later modified by the 17th Amendment, with the same proportions remaining:

“The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.” Amendment XVII, U.S. Constitution

By the time the Judiciary Act of 1789 was drafted, there were more states added to the union and thus, there would have been more senators. At least Vermont is likely to have been added. So, there were at least 28 and likely more senators by the time the Judiciary Act named nineteen judges. So in comparison, there were at least 26 U.S. Senators and 19 federal judges.

Therefore, the statement was correct, at least with regards to the Senate and likely the whole legislature (which we must bear out!). Again, there were more U.S. Senators than federal judges. So, we are left to compare the U.S. House to the Judiciary.

The makeup of the initial U.S. House can be found in the body of the U.S. Constitution with its verbiage allowing for 65 members to be elected in total.

“The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.” Article I, Section 2, Part 3, U.S. Constitution

This easily clears the hurdle of 19 judges with 65 representatives in the House. So, with regard to the federal government, especially considering the rapid addition of several states, it was easy for the number of U.S. House members to be greater than the number of federal judges. This is not still true at the federal level, however, that may be visited at another time. I am concerned with the original intent and wish to employ such at the state level.

Conclusion

Though it is difficult to determine how long these proportions lasted, it was clearly the original intent for the legislature to be more numerous and closer to the people than the judiciary. We can see clearly that initial proportion of the judiciary at the Federal maintained such proportions and that was deemed proper by the Federalist papers. It is quite notable that this was true for both branches of the legislature and at both the Federal and State levels. I hold this to be of considerable weight. The fact that this proportion has not been maintained should be a tremendous worry. The Federalist spoke to this dilemma as it stated:

“We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments.” Federalist 49