24 July 2008

Chuck Norris, Constitutional Scholar

As someone who has spent considerable time studying constitutional law, I am just plain sick and tired of right-wing blowhards who think they know the “real” meaning of the Constitution. In this respect, at least, left-wing blowhards are marginally less obnoxious, because they’re more likely to make their claims in terms of what they would “like” the Constitution to mean. It is only the right-wingers who are convinced they know the objective truth of the Constitution, it’s original meaning, and it’s so obnoxiously offensive because they’re so often wildly and foolishly wrong. Case in point, the noted Constitutional scholar Chuck Norris on the Constitution and the size of Congress.
We have more representatives than we need, and more than the Constitution requires…
What many might not realize is that there is nothing ultimately sacred about the present number of congressmen and congresswomen we have in the House of Representatives….The Constitution requires and endeavors to assure fairness and equity by requiring at least one representative per state, two senators per state and representation in the electoral college. (At the other extreme, it states that “The number of representatives shall not exceed one for every 30,000.”) So why not go with the lower amount? It seems to me that in our day, in both House and Senate, fewer representatives by area would be more reasonable and effective than more representatives by population.
…The U.S. doesn’t need a new reapportionment act to raise the number of representatives, but a return to the Constitution to reduce the number of representatives in pursuit of creating more equitable regions or districts. Personally, I believe, just as we have one governor per state, we should consider reducing Congress to on representative and two senators per state (the minimal constitutional requirements).
The first sentence contains two claims, one normative and one objective. The normative claim is that we have more representatives than we need. This claim relies on a rejection of the political value of equal representation. In fact Norris explicitly rejects equal representation of citizens in favor of equal representation of states. This is a legitimate, if debatable claim. The Continental Congress was based on equal representation of states, and the small states tried to install that principle in the Constitution, partially succeeding as the Senate is based on equal representation of states, rather than of citizens. Whether it would be wise to base both chambers of Congress on equal state representation is debatable, but not ultimately a testable question, so I will grant Norris that claim and focus on the objective claim in that sentence, that we have more Representatives than the Constitution requires.

Of course the Constitution does not require any specific number, so Norris has made a statement that is true in reference to absolute numbers. But what exactly does the Constitution require? The relevant clause is in Article I, section two:
Representatives . . . shall be apportioned among the several States which may be included within this Union according to their respective numbers [and] each State shall have at Least one Representative;
Norris places great weight on the “each State shall have at Least one Representative” phrase, treating that as constitutionally sufficient for any and every state, which is a gross misinterpretation. The clause merely sets a minimum number of Representatives for the least populated states, to ensure that no state is denied representation in the House. It does not describe a satisfactory minimum for all states because the preceding phrase says, “Representatives…shall be apportioned among the several States…according to their respective numbers.” That is, Representatives are apportioned by population of the states. If each state had but one Representative, they would not be apportioned by population at all. So Norris’s implication that the Constitution does not require more than 1 Representative per state is badly mistaken. The principle embedded here is the principle of equality of representation, a political value institutionalized as a Constitutional principle. By logical extension then, the Constitution requires a sufficient number of Representatives to properly apportion them among the states so that citizens are equally represented.

But do we, nevertheless, have more than is required, as Norris claims? Since the requirement is equal representation of people, we can simply see if that principle is met—that is, if Representatives’ constituencies are equal , the principle is met; if unequal, the principle is not met. (The equality need not be perfect. The problem of marginal representatives is intractable, as it is unlikely that the number of Representatives will ever be a simple divisor of the total population.) As it turns out, the current number of Representatives is not more than is required, and has, in fact, become—arguably—less than constitutionally required. As equal representation (equal constituency size) is required, and each state must have at least 1 representative, the effective maximum constituency size is equal to the population of the smallest state. (The minimum constituency size is 30,000: Norris cites the Constitution correctly, where it says, “The number of representatives shall not exceed one for every 30,000.)

So all we need to do is ask whether any constituencies exceed the maximum size, as determined by the population of the least populous state? That number is currently set by Wyoming’s approximately 515,000 residents (according to the U.S. Census Bureau’s 2006 estimate). The population of the U.S. as of 2000 was about 281 ½ million (the current population is over 3 million, but as districts are determined by the decennial census, any malapportionment occurring as a result of mid-decade population shifts are not constitutionally problematic. Note that Wyoming’s 2000 population was 494,000, so by using the higher Wyoming figure, and the lower U.S. figure, I am estimating conservatively). Dividing the population by the number of districts, we get
281,500,000/435= 647,126.

That is, the average district size (as of 2000) was roughly 132,000 more than the maximum size needed to ensure constitutionally required equal protection—about 25% too large!

This will only get worse following the 2000 census. Extrapolating Wyoming’s population growth (a gain of 26,000 people from 2000-2006, so we can generously grant them another 30,000 in the remaining years of the decade), and assuming the U.S. population does not increase from its current estimate of about 300 million, the maximum allowable size for the next reapportionment will be 545,000, while the average size will be almost 690,000—that is, 26% too large even using unrealistically generous estimates (more likely it will be around 30% too large).

This is, I believe, an unprecedented event in U.S. history. Prior to 1911, Congress regularly raised the number of Representatives in response to a growing population and the addition of new states. In 1911 they fixed the number at the present 435, on the reasonable basis that the larger the House grew, the more unwieldy it became in its operations. At that time, Idaho, Nevada, Utah, and Montana had only 1 Representative each (and further research is necessary before I can say whether they were over or under represented at the time). Only after that, as the population grew while the House remained fixed, was there real potential for this problem, and as we can guess from the numbers shown, it is a fairly recent problem (again, further research could establish when it began).

I am unaware that any lawsuits have yet been filed targeted at this issue. But contrary to Norris’s claim, a large state like California is actually under-represented in Congress, and has, I believe, a reasonable claim to more Representatives, which could only be met by an increase in the size of the House. Perhaps the Supreme Court would reject the argument, on the grounds that 25% is not too large a discrepancy, but they could only do so by rebutting their own arguments in Baker v. Carr and succeeding cases, where such a large discrepancy in size would have been vigorously rejected. But assuming they would do so, there has to be some limit to the malapportionment that the Court would not accept, whether it be 30%, 40%, etc.

In sum, Chuck Norris’s absurd constitutional claim does not stand up to the most casual analysis—we do not have more Representatives than the Constitution requires, but too few. But Norris reveals his real agenda with his claim that:
I don’t only think there are too many cooks in Congress’ kitchen nowadays, but the numbers are stacked in discriminatory ways. For example, if California represents a larger liberal voice with its 53 representatives, what chance or how fair is it for smaller more conservative states who have between one and 5 representatives and votes in the House?
So Norris thinks it’s unfair that California, with 60 times as many people as Wyoming or North Dakota, gets more representation. In fact he not only opposed equal representation of people, his real goal isn’t even equal representation of states—he wants disproportionate representation for his ideology! Imagine how conservatives would respond if a liberal said there ought to be more representation for liberals because conservatives keep winning too many elections, and badly misinterpreted the Constitution to justify the argument. The conservatives would rip the liberal to shreds for hating America, and that’s the appropriate response to Chuck Norris.

Chuck, why do you hate America?

But, to put the topper on it, Norris either misunderstands California, or is flatly lying to his readers. He suggests that California’s 53 representatives all represent “a liberal voice.” But 18 of those 53, about 1/3, are Republicans. California is not monolithically liberal (even though it is clearly predominantly Democratic these days). But since when has a partisan hack—of any stripe—let facts get in the way of trying to pervert our system for their own ideological benefit?


James K said...

Well that says it all really. Norris really is a poltroon.

James Hanley said...

Poltroon, what a delightful word.

James K said...

Its a ridiculous word for a ridiculous man.

James Hanley said...

Oh, I know. I just don't ever hear it used, and probably have never used it myself.

Is it commonly used in New Zealand, or are you just uncommonly adept with the English language?

James K said...

The latter, I've been reading at an adult level since I was 6 so I've picked up an interesting vocabulary over the years.