Unconstitutional Politics: Why the Single-Member District Requirement Commandeers the States
Paul E. McGreal
Creighton University School of Law
September 26, 2008
Notre Dame Law Review, Vol. 76, No. 2, 2001
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.
Number of Pages in PDF File: 125
Date posted: September 28, 2008 ; Last revised: September 29, 2008