House cap of 435 is unconstitutional, prof argues

My colleague Professor Anoo Vyas has published Why Capping the House at 435 is Unconstitutional in the Penn State Law Review.

Here is the abstract.

Expanding the House of Representatives could offer several benefits, as noted by various public policy experts. It could make gerrymandering more difficult and mitigate the impact of money in our political system. Additionally, it could lessen political polarization, which some scholars argue has reached levels that threaten the long-term viability of our democracy. In fact, increasing the size of the House theoretically could impact all potential legislation at the federal level.

Congress fixed the House at 435 members nearly a century ago when it passed the Permanent Apportionment Act of 1929. Though the population of the country subsequently has increased by more than 200 million, the number of House delegates remains at 435. This Article argues that the Permanent Apportionment Act is unconstitutional because it eliminates Congress’ responsibility to assess the size of the House every ten years. This review of House size in connection with the census was a significant tool used by proponents of the Constitution during the ratification period to convince skeptics who feared the House may one day transform into an oligarchical body.

Prof. Anoo Vyas
UMass Law

The Permanent Apportionment Act violates various modes of originalism and textualism, as favored by more conservative jurists. Moreover, it runs afoul of living constitutionalism, espoused by more liberal judges. Finally, a formula, such as one that automatically adjusts House size to the cube root of the population, could avoid contentious fights while simultaneously passing constitutional muster.

As I discussed with Professor Vyas in the development of his work, I believe his thesis is important regardless of whether it precipitates an accordant Supreme Court ruling anytime soon. The impact the article can and should have is to spark serious consideration of the dysfunction of our Congress and why it has failed as an institution to meet the needs of voters. Look no farther than U.S. Rep. Mike Flood's (R-Neb.) disastrous town hall.

In fact, when Professor Alasdair Roberts lectured at the law school last week about deficiencies in the design of American government—I wrote about Roberts's lecture yesterday—Roberts specifically listed the small size of Congress, relative to the legislatures of the world's comparably large and complex polities, as a cause of our defective democracy.

Roberts explains 'real crisis' of American government

Flyer by RJ Peltz-Steele (with AI art) CC BY-NC-SA 4.0

At UMass Law last week, Alasdair S. Roberts, UMass Amherst professor of public policy, lectured on "The Real Crisis of American Government" and spoke to my international law class about his 2023 book, Superstates: Empires of the 21st Century.

In research for his next book, Professor Roberts is investigating deficiencies in the design of American government and how they might be remedied. The work follows naturally after Roberts's most recent book, The Adaptable Country: How Canada Can Survive the Twenty-First Century (2024), as the author turns his scrutiny to the United States. 

The subject could not have been more timely with the dramatic and controversial changes afoot in the federal government. Here was the teaser for the talk:

The United States isn’t facing a crisis of democracy. It’s facing a crisis of adaptability: the inability to adjust institutions to meet today’s challenges.

Prof. Alasdair S. Roberts
RJ Peltz-Steele CC BY-NC-SA 4.0

I don't want to steal Professor Roberts's thunder; his ideas will be more fully developed as the research unfolds. I will summarize two prongs of his presentation this way:

First, as Roberts put it, if one were to design a government for a polity as socially pluralistic, geographically vast, and ideologically diverse as America is today, it would not look like the system of the U.S. Constitution. The delta between what we have and the ideal is the root of our problems, which span the three branches of government.

Second, fixing things won't be easy or fast, even after, and if, we acknowledge our problems. The drifts of dysfunction have accumulated for more than a century at both federal and state levels, and it will take just as long to reverse adverse trends and to re-revolutionize—one hopes bloodlessly—American government.

Problems wrought by the unanticipated contemporary complexity of the American nation were precisely where Professor Roberts left off in Superstates, in which he pondered the expansiveness, population, diversity, and complexity, unprecedented in the history of human civilization, of the United States, European Union, China, and India. Roberts talked to my international law class about how these modern polities are and are not like extinct historical empires, and what that means for our species in an era of existential challenges such as climate change. 

Superstates has been one of my favorite nonfiction books since I read it two years ago, when Professor Roberts visited my freedom-of-information seminar. Re-reading its first chapter last week, I found it only more salient to rapidly evolving international relations.

Professor Roberts's school-wide lecture was well attended in large thanks to sponsorship by student organizations, the Federalist Society, the Law and Political Economy Society, the National Lawyers Guild, and the Veterans Law Association, for which I am faculty adviser; and by the public interest law program and the Office of the Dean, which provided pizza. I am grateful to Professor Roberts for visiting campus and to all the students, faculty, and deans who supported his visit.

Remembering Professor Frances S. Fendler

Congregation B'nai Israel
Sunday, Sept. 15, 2024, RJ Peltz-Steele CC BY-NC-SA 4.0

At Congregation B'nai Israel in Little Rock, Arkansas, on Sunday, I joined in the celebration of the life of Professor Emerita Frances Shane Fendler.

A native of Blytheville, Arkansas, Frances was a faculty member at the law school at the University of Arkansas at Little Rock, and also an alumna of the school, '82. Always an intellectual, she wrote the top paper on the July 1982 Arkansas bar exam. She clerked for the late Eighth Circuit Judge Richard Arnold and then litigated for (now) WilmerHale in Washington, D.C.

In 1986, Frances joined the faculty at Little Rock, where she taught courses such as business organizations, sales, and contract drafting for more than 30 years. She authored or co-authored articles and books, including a business organizations casebook and the Arkansas practice manual, Private Placements and Limited Offerings of Securities (2010). She served as a member of the bar, twice chairing the state association section on securities law, and she occasionally served as an arbitrator for the Financial Industry Regulatory Authority.

Most importantly, of course, Frances was a dear friend. When I struggled with the academic politics at Little Rock, she was steadfastly personally supportive, even if she did not have the bureaucratic sway to redress the situation. I did my best to be supportive, in turn, of Frances, when she battled breast cancer in the 20-aughts. I say this more because she often thanked me for it than because I deserve any credit; my recollection is rather frustration at my helplessness to do anything for her at that time. Upon her own remarkable strength, she prevailed in that first fight with cancer.

China Doll
Photo © RJ Peltz-Steele

Frances was a passionate dog lover. She was the first guest to visit my first dog, Rocky, when he came home to me, a puppy, in 2001. At the time, she had her precious China Doll, also an Australian shepherd. Frances remained always a trusted adviser on training and caring for Rocky over his nearly 18 years, right to the painful decision to end his life. My wife and I were plan B if a home in Arkansas could not have been found for Frances's beloved Honey Bear. When I visited Frances at her home in Arkansas one last time in October 2023, she gave me her cherished ceramic Aussie, a remembrance of China. The statuette, literally a "china doll," now stands guard over the ashes of my Rocky.

When we were together in 2023, we talked of all things big and small while organizing the papers of her father, the renowned Arkansas attorney Oscar Fendler. Most of Oscar's papers already resided at the archives of the library at the University of Arkansas at Fayetteville (UAF). But Frances had held back some of the more personal items, such as photographs and handwritten notes. She entrusted me with one treasure in particular: Oscar's unpublished memoir. With the help of research assistants, I am in the process of editing the book for publication, in accordance with Frances's wishes.

Many people helped to organize Frances's affairs in the last weeks. I express my especial gratitude to Linda, who took in Honey Bear; to Susan, who, with help from Melissa and Jessie, saw to the final dispatches to UAF; and to Tom and Suzy, who visited Frances often.

When Frances was young, from ages 19 to 21, she lived and was treated for depression at the Austin Riggs Center, a residential facility in Stockbridge, Massachusetts. She long kept that part of her life a secret, she explained to me in 2023, because of the stigma attached to mental illness. But in recent years, and especially contemplating her own end of life, she recognized that there need be no stigma. She had no shame in it, she told me; in fact, she said, those years, when at last she learned how to manage the darkness that had dogged her, and she made friends who understood, were the best two years of her life. She wanted people to know about her experience in the hope of inspiring others who struggle with depression to seek treatment.

Soon after her retirement from teaching, Frances was diagnosed with ovarian cancer. Having gone ten rounds with cancer before, and not having been given a hopeful prognosis, she chose to eschew treatment in favor of home hospice. Some weeks ago, the pain management in Arkansas became ineffective, and Frances relocated to Celia's House Hospice in Medford, Oregon. She was blissfully happy at the beautiful property when I spoke with her by telephone the week before she died. When the cancer reasserted itself, she declared, "Give me the pills," as she told me she would. At age 70, she availed of medical aid in dying (MAID) under Oregon's Death With Dignity Act. As her eulogizer put it Sunday, Frances lived and died on her own terms.

My life is richer for Frances Fendler having been in it.