What's Wrong with This Bill ?   

Here are some proofs that districting is a power delegated to Congress in the Constitution, as at least an implied part of the United States apportionment power. If it wasn’t it would be a state power as above. Caselaw has claimed that for almost 200 years. But because constitutions aren’t common-law documents affected by caselaw, whenever an error is proven the correction is made (see Evenwel v Abbott: the Representation Question for more). 

  • The Framers didn't anticipate we'd end up using districting but when the Court first found districting constitutional, it was found constitutional under the apportionment section. This context means it’s at least implied as delegated to Congress because: 1) since the districting power must be extrapolated from the apportionment power, it's probably included but at least implied. Amendment X doesn't reserve to the states or the people powers implied or included in the text. 2) The paragraph that delegates apportionment to Congress only expressly delegates the enumeration (census) power. But that paragraph only delegates power to Congress. Since enumeration is a power under the apportionment power and since the whole paragraph addresses apportionment, apportionment itself and all powers under it are at least implied to be delegated to Congress. 3) If districting is included it's only in the paragraph where apportionment is detailed and delegated, so it's delegated there. Even if it's just implied the apportionment clause is the first and defining part of the implication, so delegating it there can be extrapolated. 
  • When the Court found that the districting power isn't delegated in the text simply because as an unanticipated implied or included power it isn't expressed, it was taking it out of context after using that context to rule it constitutional in the first place. This is an error. 
  • Article I, Section 2 delegates apportionment (determining how many Representatives each state will have) to Congress. We originally had all Representatives represent the entire state (“at-large” representation) but quickly changed to a system of separate districts, each with one Representative. This requires districting to complete the apportionment process. It’s a power in itself, but so is enumeration. More important is that since we switched to districts, apportionment can’t be done without either one.
  • The power to enumerate each state’s population to determine apportionment, and the requirement to use the decennial census to evenly divide state populations, is expressly delegated to Congress in Article I, Section 2. The courts have found that districting must evenly divide state populations, not state land. Since the census is already dividing states that way for the first part of apportionment it’s not only easy and cost-effective to use it for both parts, it prevents errors. And no amendment creates any method but the census for districting. It’s logical to imply using the census for both needed apportionment uses from the one that’s expressed. 
  • Neither Article IV, Section 4 (which delegates electoral powers to states unless Congress intervenes) nor any other electoral clause, ever expresses or implies using districting for voting. 
  • Districting for apportionment was what made districting for voting a useful idea.The only expressed power that implies a power to district is the apportionment power (and the enumeration power within it): it makes sense to also use legislative (apportionment) districts as voting districts so that each district can vote for its own Representative. 

Analysis vs Interpretation

  • If something is expressed in a clause it's expressed. It need not be argued.

  • If something must be extrapolated entirely from something expressed in one clause it's included in what that clause expresses, so it's expressed. It can be determined by logic  (logical analysis) & need not be argued. 

  • If you'd have to combine two or more clauses to extrapolate it from the combination but it must be extrapolated when they are combined, it must be inferred (or deduced) from the relevant expressed text, so it's still expressed. It can be determined by logic & need not be argued.

  • If it should reasonably be extrapolated from one or more clauses, and can be inferred, but they could be logically read, and even combined, without extrapolating it, it's implied. An implication is an interpretation: it can't be determined by pure logic & must be argued at least once. Caselaw can accept an implication that a previous bench of the Court has accepted as successfully argued, but it can be reargued if new evidence or a new argument against it is discovered: an accepted implication can be overturned. 

One mistake even judges sometimes make is to isolate clauses and apply them as if no other clauses matter. The text must be taken as a whole, considering how all clauses relate to a topic and the question at hand, and how they affect each other.


Now that you have some experience...

The following political-process reform bills were before Congress

as of September, 2016.

Read them all at clerk.house.gov/legislative/legvotes.aspx

and test your ability to catch defects!

First step: Brief the Issue

What’s the conflict?

Look at it from every viewpoint you can find.

  • What has the media said about it? Are there any balanced histories in the library?
  • Find its federal, state, & local legislative history. What law or regulation established what we have now? What law or regulation was it replacing? What have the courts said? Go to a town hall, or watch a Congressional committee about it on C-SPAN.  
  • What other issues affect this one, or are affected by it?
  • What solutions have been offered?
  • Ask people their opinions. Who’s active on any part of this issue, or related issues? Ask them what they believe the problem is. What would be deal-breakers for any viewpoint?
  • What sneaky things might a politician who only wanted to appear to be addressing the problem do?

Is it enforceable? Start with the other pages in this section.

Textual analysis may be needed because the Constitution's text is densely written.

Some principles of textual analysis: 

  • An initial textual review determines what text is likely to be relevant to a question.
  • Logical analysis then determines what this text must express and imply. This includes semantic analysis: some words & phrases change in meaning over time; their meaning when ratified is used. 
  • Then initial interpretation will apply the text to the question, deciding what text is actually relevant & how. More rounds of review & analysis may be needed during interpretation.
  • The Constitution is read holistically: clauses can't be taken out of context. (When you quote a clause you're technically repeating the entire Constitution but highlighting that clause.) 
  • The starting point is what is expressed in the text. The strongest arguments or opinions will be those that rely on expressed text. Arguments from implications will build out from there after any argument from expressed text has been made. 
  • If a right, power, privilege or immunity is reserved to the states or the people under Article IV, Section 2 or Amendment XIV, Section 1, or if it's a natural (based on Enlightenment philosophy) right or power protected by Amendments IX and X, it's constitutional even if no clause or clauses expresses or implies it.
  • If none of the above apply, it's unconstitutional.

When something that isn't expressed may or may not be implied, reserved or protected, there's room for interpretation. The line between textual analysis and interpretation can be a fine one. How judges see the bill will vary.

Some principles of interpretation:


  • Stare decisis, following precedent, comes first. The bill must follow the analyses and interpretations of courts with jurisdiction. Even if you interpret the text differently, courts have to follow relevant precedent.
  • If the bill is meant to challenge a precedent under the public's right of grievance the Supreme Court will consider the new interpretation (see Restoring Invalidly Amended Text). If a precedent doesn't uphold the text it must be disregarded, which can mean overturning the decision. 
  • Relevant natural law must also be followed. These principles are the foundation of the Constitution, the Declaration of Independence, and all law in the United States whether federal, state or local. Thomas Paine and Montesquieu are the authors most directly responsible for the Constitution's interpretation of natural law. Even a Constitutional clause can turn out to be "wrong" and require amendment if natural law is disregarded. For example, Amendment XIII by abolishing slavery restored the natural rights of enslaved people to the Constitution. 
  • Schools of interpretation include originalism, living Constitution (current & probable future majority preference), tradition, pragmatism & judicial restraint. Look these up & try viewing the bill from each perspective. One judge may uphold a bill another may strike down.

If a federal law complies with the Constitution, it's enforceable once any conflict with other federal laws & treaties is resolved.

A state or local law also has to be checked against your state constitution and state & local law.  

Now try your skills on some bills!

HR 2694 - short title “Automatic Voter Registration Act”:

  • 21-day waiting period is longer than in many states, & doesn’t start until state notifies
  • No limit on how long state may take to notify
  • No limit on type of ID state may require
  • No appeal procedure or requirement for one
  • No tracking procedure or requirement for one
  • No clause preventing states from using it to limit voter registration to motor vehicle bureaus

HR 1459 - short title “Democracy Restoration Act of 2015”

  • Easy. Unconstitutional. A United States law making stripping the vote at conviction the default (law in all states that have no law on the subject) would contradict Article I, Section 2, which says regarding United States elections, “…the Electors [voters] in each State shall have the Qualifications requisite for the Electors of the most numerous branch of that State’s Legislature.” Congress may not determine the qualifications for voters for any state legislature. Each state does this itself. This clause keeps Congress from determining states’ voting qualifications for United States elections. 
  • There are several other defects (example: it violates Article I, Section 9 by privatizing programs for reinstating the ballot) but we need go no further. It violates the Constitution.

HR 20 - short title “Government by the People Act”;

ALSO HR 2143 - short title “EMPOWER Act”;

ALSO all other bills that claim to establish public funding of campaigns

  • Not mandatory 
  • Not 100% public campaign funding by United States budget item

Unless it’s 100% public, by United States budget item, & mandatory, a funding system has all or most of the problems of 100% private campaign funding. We’re ready for real public funding. (see Section 1: Public Campaign Funding for more)

HR 2173 – short title “Redistricting Reform Act of 2015”

A United States law delegating the power to district in all states, or even as a default in all states that don’t have laws on the subject, to private commissions would violate several clauses.

Ringer!This one’s hard because there are three possible views of the text: the one currently upheld, an alternate some states have been angling for, and the one (ours) that calls out both of the others as caselaw drift. But HR 2173 can be shown to be unconstitutional under any of these views.

Current caselaw: states have the districting power because Article I, Section 2 doesn’t delegate districting to Congress.

Under this view, HR 2173 is:

  • Unconstitutional, because Amendment X prohibits Congress from exercising any power not delegated to it in the Constitution. And the Constitution doesn’t empower Congress to redelegate any power the Constitution delegates to the states – whether to itself or to any other branch (let alone outside of government altogether).
  • Unconstitutional, because Article I, Section 9 prohibits delegating any government power outside of government. This clause has been violated before and this amendment would restore it (see Accountability & the Public Elections Clause); however, previous violations don’t excuse new ones. The Constitution makes government functions public to keep them accountable to the public, by election or by appointment by an elected President (with the advice & consent of an elected body, the Senate). This was why we fought the American Revolution: government accountable to the people (remember “No taxation without representation”?).

Alternative to current caselaw: states have the districting power because districting is an electoral power rather than an apportionment power. And Article I, Section 4 empowers Congress to override the states’ electoral powers regarding the manner of holding elections. Under this view, HR 2173 is:

  • Unconstitutional, because Amendment X prohibits Congress from exercising any power not delegated to it in the Constitution. And the Constitution doesn’t empower Congress to redelegate any power the Constitution delegates to the states – whether to itself or to any other branch (let alone outside of government altogether). Congress’ Article I, Section 4 power to pass laws overriding states’ individual electoral laws isn’t a power to redelegate away any entire electoral power held by a state. [Even if districting were an electoral power instead of an apportionment power, it would still be a power.]
  • Unconstitutional, for the same Article I, Section 9 reason as above

Constitution: Congress has the districting power under Article I, Section 2 (see box below). Under this, HR 2173 is:

  • Unconstitutional, because Amendment X prohibits Congress from exercising any power not delegated to it in the Constitution. The Constitution doesn’t empower Congress to redelegate any power delegated to it – whether to any other branch or to the states (let alone outside of government altogether).
  • Unconstitutional, for the same Article I, Section 9 reason as above
  • Unconstitutional, because even if Congress held the districting power as an electoral rather than an apportionment power Amendment X would prohibit Congress from redelegating its own power under Article 1, Section 4 to regulate the manner of holding elections.

How did you do? Congratulations!

But keep practicing; there are numerous reform bills before Congress and state & local legislatures. Some are perfectly honest. Others aren't. The ability to catch intentional defects in proposed legislation is a skill every citizen needs.