Open Research

There are lots of open questions.

How can we strengthen the case for ratification? Which states are the most winnable? Is there any systematic work of mapping state legislatures by their likelihood of passing a ratification resolution? What would that even look like? Can we look at committee assignments, past constitutional reform votes, partisan composition, and individual legislators who might champion it?

Not least of all, how cool would it be if the US had the biggest representative body of any democracy in history? Other countries have better governments, sayeth the cynics, because they are small and our problems are of a wholly different scale. Then lets govern bigly! We might even be able to call the country (in good faith) a republic again! Or a democracy! USA #1!

Contemporary

Ratification of the 27th Amendment

Side-Effects of the 27th Amendment Ratification

Lawrence Lessig at Harvard sent me an email writing, "one other challenge [for] the proposal we'd need to overcome is Congress's attempt, after ratifying the 27th amendment, to declare all other amendments unratified. The Equal Rights amendments, though declared ratified by President Biden, were, in the eyes of many, blocked by that. This last of the original 12 proposed amendments was, in the minds of many, blocked by that as well."

Prompted by Danielle Allen, also at Harvard, further research revealed no evidence that Congress in fact acted explicitly in any way to block future ratification of "stale" amendments. The ERA was contested due to a passed expiry date, while Article the First was proposed with no expiration date at all. Further, there is no precedent I could find for withdrawing a proposed amendment after states have already ratified, and I can find no mechanism for retroactively placing expirations on old proposals. I have followed up with him to find out if I missed something.

Arguments Against Ratification of the 27th Amendment

Congresspeople tried stopping the 27th ratification by referencing Dillon v. Gloss (1921), which "remarked" and "suggested" but did not rule that "stale" amendments were "dead," and was related to the novel-at-the-time 7-year expiration included in the proposed 18th Amendment. The Dillon v Gloss ruling states:

"Congress may, if it chooses to, fix a reasonable time for ratification of a constitutional amendment, and a period of seven years is reasonable."

Since 1992 Congress has submitted proposals with 7-year deadlines, but Article the First (like the Second which became the 27th amendment) contained no expiration. Because of the clarity of this ruling, it appears there was no litigation involved in ratification of the 27th amendment, having been deemed inappropriate by the Supreme Court.

Supporters of the 27th Amendment succesfully defended its ratification by referencing another Supreme Court case, Coleman v. Miller (1939), a defense that would equally apply to Article the First. The ruling states:

"A proposed amendment to the Federal Constitution is considered pending before the states indefinitely unless Congress establishes a deadline by which the states must act. Further, Congress—not the courts—is responsible for deciding whether an amendment has been validly ratified."

Congress apparently saw Article the First looming in the rearview, because one of their complaints was that allowing such an aged amendment to ratify would open the door to other "zombie" amendments, a coinage applicable to virtually only Article the First.

Continuing in remarkably bad faith, Congress argued that the framers could not have ever intended indefinite ratification windows, and that the amendment was written for a population of 4 million and so the context had changed enough to disqualify the amendment from ratification.

Regardless whether they realized that their critiques were much stronger as arguments for the amendment, they did not stop the 27th Amendment from ratifying.

Too Many Reps?

An obvious reaction to expanding the House by an order of magnitude is to wonder if such a large group would be able to functon.

• Where would they meet?
  • In a bigger, beautifuler building.¹
• How would they keep organized?
  • Email? Telegraph? However India's Ministry of Defense (2.99 million employees), The US Dept of Defense (2.91mn), or Amazon (1.61mn) do it? ²
    • Those aren't the same!
      • CONGRESS IS ALREADY OVER 9,000 PEOPLE, ITS JUST 8500 OF THEM WE DID NOT ELECT!

Which States Strategy

As of 2025 there are 19 "blue" states (and more melancholy by the day):

• California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington
  • Of these New Jersey, Maryland, New Hampshire, New York, Rhode Island, Pennsylvania, Virginia, and Vermont have already ratified.
  • If we can expect the rest to follow suit, we have a relatively straight road to 21 total ratifications.
    • Which remaining 17 states would be most likely to ratify?

Comparison to the Wyoming Rule

The Wyoming Rule similarly aims to increase the size of the House of Representatives by repealing the Reapportionment Act of 1929. This would require a majority of both houses of Congress.

• Why is the Wyoming Rule better known than Article the First, which already has been approved by Congress?
• Is ratification by 27 states actually easier to achieve than the seeminly insurmountable task of Congressional agreement or is it illusory?

Comparative Representation Ratios

The U.S. ratio of representatives to constituents is an outlier among peer democracies.

• United States: ~1 Rep per 700,000+ constituents
• United Kingdom: ~1 MP per 72,000 constituents
• Germany, Canada, France, Australia: all lower ratios than the United States

Hard figures across comparable democracies, normalized for population and legislative structure, would make the U.S. outlier status clear.

Bonus Fact

In 1776 the 13 Colonies had less than 3 million people. The US today is almost 1/3 of the way to the same representation ratio of one king for 3,000,000 citizens.

Effect on the Electoral College

Electoral college votes are calculated as

• The number of Senators per state (2 Senators times 50 states) = 100
• plus the number of House of Representatives (based on population size but currently capped at an anachronistic 435)
• plus 3 votes for Washington DC
• for 538 total.

The 2 Senator votes give small states an increased influence, for example:

• Wyoming gets 3 total Electoral College votes, 2 Senators + 1 rep (for their tiny population)
  • Those 2 Senators make up a full 67% of their voting power!
  • A huge House of Reps might leave Wyoming with 11 reps + 2 Senators for a total of 13 votes
    • The 2 Senate votes would then make up a much more reasonable ~15%
• California already gets 54/538 electoral college votes, a more representative House would shift this slightly to more accurately reflect the share of the US population that is Californian.

This would make the Electoral College much more proportional to population, shrinking the small state advantage (but not removing it entirely). The result would be that the result of the Electoral College would much more closely mirror the national popular vote, and situations where someone wins the Electoral College vote but loses the popular vote would become much less likely.

Electoral College haters would enjoy a more accurate system, and Electoral College defenders get to keep their Electoral College. The proponents of the EC only argument would be that they prefer a less representative system, but they would have to choose it over the authority of the Constitution.

Historical

The Connecticut Deadlock

On first pass I understood the situation as Connecticut's two legislative chambers deadlocked in 1789–1791, leaving the count one state short of ratification. Both chambers may have in fact agreed to ratify and simply failed to inform Congress:

• Eugene LaVergne, a New Jersey attorney, argued in federal court that Connecticut had actually ratified but that its records were lost in archives. Courts rejected the case. A third party apparently confirmed his findings:

  • "The Connecticut House of Representatives voted to ratify Article the First in October 1789, but the upper house in Connecticut delayed its vote until May 1790. In May, the upper house approved AtF, along with all the other proposed amendments, but now the House wanted to reject AtF because of the transcribing errors. The Senate rejected the idea the House could simply change its vote, and the two sides never agreed on a final position." ³

  • The third party was a Justin Haskins at Heartland.org, he responded to an email with more details:

    • The trouble, however, is that because the two houses in the legislature never agreed on ratification in the same session, the bill likely didn't pass. I consulted expert scholars on the Connecticut Constitution (or royal charter, in this case) and U.S. Constitution and I was essentially told the same thing by everyone: courts would likely never accept the votes in Connecticut as final because the houses in the legislature didn't ratify at one time. LaVergne had several legal arguments that he used to counter that concern, but I couldn't find a single legal scholar who agreed with his assessment. With that said, he has essentially put forward an issue that has never really been addressed by courts. And when he sued, courts dismissed his case because they claimed he didn't have standing (if I remember correctly). They refused to address his primary argument—namely, that a single legislative chamber cannot vote to un-ratify an amendment once they vote in favor. He also claimed that one of the chambers was actually part of the executive branch, not the legislative branch, and thus only one chamber was needed to ratify. (The Constitution only requires the legislature to ratify, not governors.) He made some really interesting arguments there, and I think that's his strongest assertion. But when I ran that by a top-notch constitutional attorney who specializes in the Founding era, he made a strong case that in Europe, some legislative bodies were set up in such a way that one chamber was essentially both an executive and legislative body, and that "legislature" in the Constitution likely did intend to capture that concept as well. Complicating things is that the legislative record in Connecticut at the time was very sparse. There's not much evidence to see, so it's hard to know exactly when votes were cast, what people were arguing, etc. In any case, it's a really interesting story, but I doubt courts will ever seriously consider it.

    • He references "Connecticut and the first ten amendments to the federal constitution," by Thomas H. LeDuc, which I do not have database access to. If you know someone who does and is willing to share a copy I would be interested to read it.
      • Other primary sources of the CT assembly records could have the information but I have not been able pin down.

• Question remains whether this is worth looking into further, or if we should ignore it and simply continue with further state ratifications?

If Connecticut really ratified, the pre-Kentucky count clears eleven states which was the original threshold and the legal posture of the amendment changes significantly, to the extent that maybe we've been running under an incomplete constitution this whole time! Whoopsie!

The 1929 Apportionment Act

Congress capped the House at 435 in 1929 by ordinary statute, after refusing to reapportion for a full decade following the 1920 census. The political history of that decision should be better explained.

• Who sponsored the 1929 Act, who opposed it, and what arguments were made on the floor?
• Were any constitutional challenges mounted at the time?
• The rural-vs-urban power struggle of the 1920s is the obvious backdrop, how explicitly did sponsors defend the cap in those terms?

The 1929 Act is the one of the reasons Article the First matters so much today, it should be well understood.

The Transcription Error

The enrolled text of Article the First contains a word that differs from the version passed by Congress. In the third tier, one copy reads "more" where the passed version reads "less," producing a mathematical impossibility: the stated minimum number of representatives exceeds the stated maximum during certain population ranges.

• Would courts would resolve it by reading the text against obvious intent (a scribal/scrivener's error)?
  • There are primary documents describing the straightforward nature of the mistake.⁴
• Are the population ranges effected likely to ever exist again? (knock wood)
• Coleman v. Miller (1939) apparently involves a typo, for future research.

This is the strongest technical counterargument to ratification and deserves a thorough treatment before it comes up in litigation. Fixing the typo would require Congress to agree to pass the new proposal to the states, which removes the primary advantage of Article the First's current standing as having already been approved by Congress.

Alternative Interpretations to the Formula

One could extrapolate the algebraic pattern in Article the First to continue proportionally to the square root of the population. This would likely be way outside the interpretation of a court, but if Congress fights for their lives to stop Article the First, this might be the kind of desperate compromise they offer.

• Today's population of ~346 million would result in a modest 1,763 representatives. ⁵ Which coincidentally is very close to the number we would have had we kept to the very first Congressional Apportionment Amendment.

More resources

• Some links to more information