Academic journal article Journal of the Early Republic

Congressional (Partisan) Constitutionalism: The Apportionment Act Debates of 1842 and 1844

Academic journal article Journal of the Early Republic

Congressional (Partisan) Constitutionalism: The Apportionment Act Debates of 1842 and 1844

Article excerpt

The 27th Congress passed the Apportionment Act of 1842 and President John Tyler signed it with an accompanying statement, but its enforcement fell on the 28th House two years later. The passage, signing, and enforcement issues stimulated Congressional debates based on Article I of the Constitution. This was a unique moment of constitutional interpretation because publication in 1840 of Madison's Notes on the Debates in the Federal Convention gave the 27th Congress unprecedented access during all its sessions to the major external sources for constitutional construction, including The Federalist and records of the state ratifying conventions. Moreover, the half-century mark in constitutional history was a watershed in the thinking of Congressional debaters, who often cited fifty years of experience as legitimizing or discrediting established practice. Whigs, who controlled the 27th Congress, and Democrats, who regained a majority in the next House, read the same documents but, for the most part, reasoned on opposite banks of the textual stream. Whigs gave greater weight to the intentions of the framers, Democrats to the expectations of the ratifiers.

Three issues drawn from Article I framed the Apportionment Act debates. First, the stipulation in Section 2 that "the number of representatives shall not exceed one for every thirty thousand" produced debates on the ratio in the House and Senate during the second session of the 27th Congress. Second, the authority Section 4 conferred on Congress to regulate the election of its members involved the districting proposal that engaged both chambers during the same session, was revisited briefly in the House during the third session, and was debated anew in the first session of the 28th House. Third, the latitude that Section 7 granted the president in signing a bill into law was disputed in the House shortly after enactment in June 1842.

Article I, Section 5 was not debated but remained salient. Some senators in the 27th Congress were reluctant to insert themselves into the fray because they thought that the provision that "each house shall be the judge of the elections, returns and qualifications of its own members" entitled the House to exclusive jurisdiction over the legislation. The 28th House cited the clause in claiming final authority to decide whether or not to seat four delegations that were elected in a manner the apportionment act invalidated.

More than a half-century after ratification, most Whigs and Democrats agreed that their understanding of the Constitution should be based on historical ("contemporaneous") records. Here congressmen of both parties made clear that in interpreting the Constitution they gave greater priority to the intentions of the past than to advantages in the present. In opposing the districting proposal, however, Democrats invoked a new principle of constitutional construction, stare antiquas via, where Congressional precedent should be conclusive. Thus when government usage has been "uniform, and the acquiescence of the people general . . . the practice establishes the construction." In this argument and in their emphasis on the ratifiers' expectations, Democrats embodied what Larry Kramer calls the principle of "popular constitutionalism," which considered the people, not the courts, the ultimate arbiters of Constitutional meaning. Accordingly the 28th House, with a new Democratic majority, decided to seat four delegations in defiance of the apportionment statute, whereupon Whigs accused the chamber of "nullification" in legitimizing state disregard of federal law.1

These debates have not been comprehensively examined because the act itself has received only limited attention. Historians have taken their cues from contemporaries, who generally concerned themselves more about well-publicized battles over the national bank, the tariff, the distribution of revenue from public land sales, the gag rule, and Texas annexation than about the decennial apportionment act. …

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