125 Pages Posted: 28 Sep 2008 Last revised: 29 Sep 2008
Date Written: September 26, 2008
This Article argues that the federal statute requiring election of the United States House of Representatives by single-member districts is unconstitutional. Simply put, this statute, which was first enacted in 1842, commandeers the states to draw single-member congressional districts every ten years. Members of the 1842 Congress hotly debated and carefully considered the constitutionality of commandeering the states to make law, using many methods of constitutional argument employed by courts and commentators today: text, history, structure, and prior government practice. The statute passed narrowly and has never been judicially challenged.
Given the Supreme Court's holding in New York v. United States, I argue that the federal districting statute amounts to Unconstitutional Politics. I carefully examine the relevant constitutional text, structure, history, precedent, and prior government practice, and conclude that if Congress wants the House elected by single-member districts, Congress must draw the districts for each state. Otherwise, states may experiment with other electoral systems, such as at large or multi-member districts, as they see fit.
Suggested Citation: Suggested Citation
McGreal, Paul E., Unconstitutional Politics: Why the Single-Member District Requirement Commandeers the States (September 26, 2008). Notre Dame Law Review, Vol. 76, No. 2, 2001. Available at SSRN: https://ssrn.com/abstract=1274166