CHAPTER XII

THE CONGRESS OF THE UNITED STATES

THE Congress of the United States is composed of two houses: a Senate representing the commonwealths in their corporate capacities, and a House of Representatives apportioned among the states according to their respective populations. Two leading motives were responsible for the adoption of this bicameral system. In the first place, it was necessary to secure the support of the smaller states for the new Constitution by granting them equality of power in one branch of the federal government. In the second place, the Fathers believed that some check was necessary upon the impulses and passions of the more popular body. Then, of course, they had before them the examples of the English Parliament and their colonial assemblies.

The House of Representatives

The number of members in the House of Representatives is fixed by Congress, subject to the limitation that it shall never exceed one for every 30,000 of the population. The first House consisted of sixty-five members, and, with one exception (the reapportionment of 1842) the number has been regularly increased until it has now reached 391. At each recurrence of the decennial apportionment there is a strong pressure on Congress to add more members to the already unwieldy assembly. This is due to the fact that those states whose populations have increased only slightly, or not at all, are unwilling to have their. representation reduced in order that the rapidly growing states may receive the proportion due them under the numerical rule. It must be noted also that with the growth of population the number of inhabitants in each congressional district has increased enormously, from about 33,000 in 1793 to about 200,000 at the apportionment of 1901. This makes a constituency of great size when compared with the parliamentary district in England or in France.

A member of the House of Representatives must be a citizen of the United States of at least seven years' standing; he must be not less than twenty-five years old and an inhabitant of the state in which he is chosen. He cannot be at the same time a military or civil officer of the United States; and nearly all of the states have, by law or constitutional provision, forbidden their officers to hold positions of trust under the federal government. Some states have gone further and provided that each member must be a resident of the district which he represents; but this restriction is regarded by most lawyers as unconstitutional, because it adds a qualification to those imposed by the federal Constitution.1

As a matter of fact, however, it is practically an unwritten law that the member must be a resident of his district, although there are a few exceptions, as for example in New York, where down town constituencies are often represented by men residing in up town districts. Mr. Bryce has summarized the reasons for the adoption of this general custom as follows: State pride, of course, will prevent a district from going outside of the commonwealth for its Representative; the member of the House is relatively well paid, and the party in the district does not want to waste the post on strangers, but prefers to reserve it to strengthen the local organization; owing to the vast amount of party work required by our complicated system, it is necessary to have as many offices as possible to reward the workers; the Representative in Congress is expected to know and primarily represent local needs and to secure harbor and river appropriations, post-office buildings, special protection for industries and other favors for his constituents, for Americans regard the Representative as a spokesman of local interests rather than as a statesman, "formulating reason and justice into law." It is, therefore, highly improbable that any change will be made in this unwritten law, at least in the near future, notwithstanding the fact that it often excludes able men from Congress because talent is not distributed by nature according to congressional districts.

While it seems clear that states cannot add qualifications to those imposed by the federal Constitution on members of Congress, it is conceded in practice that either house, in the exercise of its constitutional powers to be judge of the elections, returns,

1 But it is difficult to see how it could be set aside by legal process.

and qualifications of its members, may exclude persons on other grounds than those laid down in the Constitution. For example, in 1900, the House excluded Mr. Brigham H. Roberts of Utah on the ground that he was a polygamist. The committee reporting in favor of this action contended: "Must it be said that the constitutional provision, phrased as it is, really means that every person who is twenty-five years of age and who has been for seven years a citizen of the United States and was when elected an inhabitant of that state in which he was chosen, is eligible to be a member of the House of Representatives and must be admitted thereto even though he be insane or disloyal or a leper or a criminal? Is it conceivable that the Constitution meant that crime could not disqualify? The whole spirit of the government revolts against such a conclusion."

The minority of the committee reported, however, against this view, declaring: "The adding by this House alone of a disqualification not established by law would not only be a violation of both the Constitution and the law, but it would be a most dangerous precedent which could hardly fail to 'return to plague the inventor.' . . . What warrant have you, when the barriers of the Constitution are once broken down, that there may not come after us a House, with other standards of morality and propriety, which will create other qualifications with no rightful foundations? . . . It will no longer be a government of laws but of men. To thus depart from the Constitution and substitute force for law is to embark upon a trackless sea without chart or compass. ." This view was also held by those who claimed that the proper way of getting rid of Mr. Roberts was to admit him to membership and then expel him under the right to eject by twothirds vote; but the party of exclusion triumphed.

The Constitution provides that no person holding any office under the United States shall be a member of either house during his continuance in office. Under this provision several army officers have been excluded from the House of Representatives/ For example, in 1803, Mr. John P. Van Ness, a Representative from New York, was appointed major of the militia under the authority of the United States in the District of Columbia, and

'It has been done, however, in only a few cases.

* Hinds, Precedents of the House of Representatives, Vol. I, pp. 527 ff.

the committee on elections in the House declared by unanimous vote that by his acceptance he had forfeited his seat. The practice of Presidents in frequently appointing members of the Senate and House as commissioners to negotiate treaties and make investigations has raised the question as to whether members of Congress can legally accept such positions. The judicial committee of the Senate in reviewing this matter came to the conclusion that "a member of a commission created by law to investigate and report but having no legislative, judicial, or executive powers, was not an officer within the meaning of the constitutional inhibition."1 Members of the House of Representatives are apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, exclusive of Indians not taxed - subject, however, to the limitation that each state must have at least one Representative. Until 1842, Congress left the states to their own devices in election methods, but in that year the Apportionment Act provided, "that in every case where a state is entitled to more than one Representative, the number to which each state shall be entitled under this apportionment shall be elected by districts composed of contiguous territory, equal in number to the number of Representatives to which said state may be entitled, no one district electing more than one Representative." It is now the rule of Congress to require that congressional districts shall be composed of "contiguous and compact territory containing as nearly as practicable an equal number of representatives," each district electing only one Representative, except in the case that, if the state legislature fails to carry out this exact provision, certain or all of the members may be elected at large on a general ticket.3

Notwithstanding the intention of Congress to provide for substantially equal congressional districts, our state legislatures have succeeded in creating, principally for partisan purposes, the gross

1 Hinds, Precedents, Vol. I, p. 604.

2 Alaska, Arizona, Hawaii, New Mexico, and Porto Rico have one delegate each in the House of Representatives, and the Philippine Islands have two delegates. These delegates have seats in the House, and may speak there, but they have no vote.

3

See Readings, p. 218. North and South Dakota are specially authorized by Congress to elect their respective Representatives at large.

est inequalities. On comparing the total number of votes cast in Congressional districts, we find the greatest discrepancies. For example, in 1906 a Mississippi district with a population of 232,174 cast 1540 votes, while a New York district with a population of 215,305 cast 29,119 votes. In New York in 1906 there were 58,190 voters in the twenty-third congressional district, and only 13,862 voters in the ninth congressional district. These differences, of course, are not due entirely to the gerrymander, for representation is not based on the number of voters, but on the population.

Even in the matter of population, however, there are great discrepancies. The fifteenth congressional district (Republican) in New York (1905) had 165,701 inhabitants, while the eighteenth (Democratic) had 450,000 inhabitants. These discrepancies are partially due to the necessity of recognizing units of local government such as counties, townships, and city blocks, in laying out the districts, but they are more especially due to the desire. of the majority party in each state legislature to secure as many of its members as possible in Congress.

This misuse of the power of creating congressional districts, known as "gerrymandering," has been devised as a means by which a dominant party can make its own vote go as far as possible in congressional elections and cause its opponent's vote to count for as little as possible. This is done by massing the voters of the opposing party in a small number of districts, giving them overwhelming majorities there, while allowing the dominant party to carry the other districts by very small minorities. Gerrymandering is responsible for some curious political geography. There is, for example, the famous "shoestring district" in one of the southern states where gerrymandering has been used to counteract the effect of the negro vote. There was at one time in Illinois the "saddle bag" district comprising "two groups of coun

1 The term "gerrymander" originated in Massachusetts. It appears that Elbridge Gerry, a distinguished Democratic politician of his day, was instrumental in redistricting his state in such a way that one of the districts had the shape of a lizard. When an artist saw the map of the new district, he declared, "Why, this district looks like a salamander," and gave it a few finishing touches with his pencil. The editor, in whose office the map was hanging, replied, "Say rather a gerrymander," and thus an ancient party practice was given a new name. See Readings, p. 219.