Warm Southern Breeze

"… there is no such thing as nothing."

Size Matters: Neither The Congress Nor The Supreme Court Are Big Enough

Posted by Warm Southern Breeze on Saturday, September 22, 2018

Should we, as reasonable people, expect the size of our Congress – specifically, the House of Representatives – to be permanently fixed at 435 members, and never increase representation according to an increase in population? And with regard to the the Supreme Court, should only 5 people decide the fate of a nation, why not a few more, like 13 or 17?

What if I told you Congress needed about 1000 MORE Members of the House of Representatives? And, what if I told you the United States Supreme Court needs to have AT LEAST 13 Justices, and that THEY should choose from AMONG THEMSELVES the Chief Justice?

You don’t wear the same size clothing you did when you were aged 10, 15, or even 25. The People’s representation in our nation’s governance needs also needs to be properly fitted.

Having MORE Representatives would NOT cause “more logjam politics,” nor would it cause corruption, but instead, would significantly increase efficiency -and- the ease with which laws would get passed, and bad or old laws get eliminated or changed. Criminality is most often done in secret by a few. Rarely is criminal activity, even in organized crime, ever on a large scale like an army invasion. It’s always a little thing, like guerilla warfare. There were only 7 co-conspirators with President Richard M. Nixon in the criminal Watergate break-in, burglary, wiretapping, attempted cover-up, and resulting scandal. The pace at which our government moves is not merely unresponsively sluggish, it is deliberately and negligently slothful. It is being reasonably asked to do things we tell it to do, and in the process, being denied the resources – money, personnel, and time – necessary to perform those tasks. Government can, and should move much more quickly. And historically, it has.

Think of it this way:
You have three dogs, and one chicken bone. Throw it down and watch them fight.
You get two more chicken bones, and each dog has one. Problem solved.

Some would raise the matter of Constitutional interpretation in opposition to the idea, and think we should hold to a strict Constitutional interpretation – whatever “strict” is, or means – and it typically means that the modern thinkers imagine they can, and therefore attempt to conjure up a mind-reading session to interpret what the framers of the Constitution intended or hoped… even though they’ve been long dead. Sure, they gave us the Constitution, along with a means and method of updating it, which itself means that it’s not static, and can be changed. And it has been changed many times since its inception. It is a living document, not a dead one into which we attempt to blow the breath of life. It lives still.

Some think we can interpret the Constitution according to our unique needs, which the original framers could not have begun to fathom. And the fact is, that’s what we’ve always done. At least until the last 50 years, or so, until the time which gradually, the specious notion that smaller is better crept in under cover of negligence, and “downsizing” became part of the popular corporate and political vernacular. In effect, such talk is discussion is only about inefficiency, and how they have not effectively used the resources they have, nor planned appropriately.

There is no doubt that the framers of our Constitution could never have imagined that man would walk on the moon, that geosynchronous orbiting and interplanetary traveling satellites would tell us about our precise location on Earth, and our solar system, and that more than twice the computing power of history’s largest space rocket (Apollo V) could fit in your shirt pocket, or that our union would have well over 330,000,000 residents.

Button Gwinnett (1735–1777 was the first signer of the Constitution, and was later, briefly the Governor of Georgia.

And it goes without saying that Button Gwinnett, Samuel Adams, John Hancock, James Madison, George Washington, and others in their era, had no idea about antibiotics; they had no inkling that magnetic fields could peer deeply inside the human body to detect disorder; that dental implants and multi-organ transplants would exist; or that we would send a telescope to orbit our planet and peer deeply into the cosmos to see star systems hundreds of billions of light-years away -and- then replace it with an even better, significantly improved, more perfect one to see into the edges of the time -and- send a satellite hurtling toward the sun to learn more about the blazing fiery hydrogen fusion orb which is the center of our universe.

Artist’s 2009 rendering of the James Webb Space Telescope, which will replace the Hubble Space Telescope.

None of those things and more which we daily take for granted – such as GPS on smartphones – could have ever been imagined by our Founding Fathers… or their mothers, or children, and never were.

We are as different, and our needs are as immensely diverse from our nation’s founders as night is from day, and there is no reason why we should not “update” our government according to the manner for which it is prescribed.

In 2019, we have more patents, more copyrights, more inventions, more discoveries, more science, more creative works of myriad kind, and – of course – many, many, many, more people. Many!

If it was anything, it was but a pipe dream that one day, unmanned remote control aircraft could be silently flown around the world, eavesdrop on conversations, take pictures in the dark to deploy guided missiles, drop bombs, and kill people… and that we, on the opposite side of the globe, could watch it unfold live, as it happened, as if it were macabre modern gladiatorial entertainment.

Portrait of Robert Boyle (1627-1691), by German painter John Kerseboom (d.1708), which is publicly displayed at Gawthorpe Hall, in England.

In the age and era of the founding of our nation, the concept of microscopy and the cell theory was relatively new. Robert Hooke, considered the “father of microscopy” had just discovered cells in 1665, and Robert Boyle (Boyle’s Law) were contemporaries in 1662, while Sir Isaac Newton died in 1727 – a mere 60 years before our Constitution was written.

Benjamin Franklin didn’t publish his most famous experiment which used lightning and a kite to prove that lightning was electricity until 1750; Orville and Wilbur Wright didn’t get off the ground at Kitty Hawk until 1903; Alexander Fleming discovered the first antibiotic – penicillin – in 1928; and the planet Pluto wasn’t discovered until 1930!

We’re talking about 242 years ago, “when giants and dinosaurs roamed the Earth.”

In a way, our nation’s founders were giants, and yet, in another way, they were dinosaurs who could fathom no idea – not even a minuscule hint – and because of it, were literally clueless about the greatness that America would become.

To give them their due, however, their curiosity and liberality served them well then, and it serves us well now. Our form of government is, in the history of humanity, among the shortest-lived, but the most remarkable, and successful.

Congressional Coffee Hour (Senate). 2 May 1961, Blue Room, White House, Washington, D.C.; L-R: Senator Quentin Northrup Burdick-D, North Dakota (1908-1992); Senator Wayne Lyman Morse-D, Oregon (1900-1974); President John Fitzgerald Kennedy-D (1917-1963); Senator Thomas Henry Kuchel-R, California (1910-1994); Senator Hubert Horatio Humphrey-D, Minnesota (1911-1978); Senator Roman Lee Hruska-R, Nebraska (1904-1999); From the JFK Library; Photographer: Robert LeRoy Knudsen, (1929-1989)

In a sense, though while Greeks and Romans were inspirations, Americans perfected the three-branch bicameral democratic republic form of government. And we’re still perfecting it today. It’s part and parcel of that “in order to form a more perfect union” thing.

So, now it comes time to mention the obvious: While some loudly say government is too large, others say it is way too small to be either efficient or effective. I am among those in the latter camp, and will show and explain why as follows.

First, it’s preposterously absurd to imagine that a foundling nation with a total population which was then less than half the size that New York City is now, would, could, or should have a smaller government as it grew and matured. In the same way, no one wears the clothes they did as a 10-year-old child, and as adults, they purchase and/or make larger garments to suit their needs and wants. Similarly, no one should expect government to decrease in size.

More than anything, these matters speak directly to efficiency and effectiveness of government, which our nation’s founders also understood very well, which is also why they created the system they did, and passed it down to us for safe-keeping, nurture, and change, as necessary, according to our ever growing and changing needs.

As a side note – though germane to the primary point – EVERY Government runs on taxes, pure and simple. And while government prints money (vis a vis the Federal Reserve System, and M1 – the money supply), larger government may often require more money than smaller government even when efficiencies are consistently high. And frankly, though it may seem onerous to some, “Taxes are what we pay for civilized society, including the chance to insure,” as Supreme Court Justice Oliver Wendell Holmes, Jr. wrote in his dissenting opinion in the 1927 case of Compañía General de Tabacos de Filipinas v. Collector of Internal Revenue.

The hilariously absurd idea of getting “something for nothing” is apropos to sarcastically insert here. No one increases the size of their household without thinking or planning (birth control), and no one increases the physical size of their house without additional planning help from designers, carpenters, plumbers, painters, roofers, general contractors, etc., meaning that materials, manpower, and money are essential ingredients to success. Remove any one of those three items, and things begin to quickly deteriorate.

And so for that reason, the so-called “starve the monster” approach to governance is similarly not wise. To assert that we, the people of our nation, by and through our Congress, or anyone would say or believe something like “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub,” is not merely preposterous, it is not merely alarming, it is gravely dangerous, and inherently disordered because of the inevitable anarchy that historically accompanies such a destruction. And it is a desire to abolish government, if one wishes to “drag it into the bathroom and drown it in the bathtub.”

It is antithetical to good, proper, ethical, honest, effective, and efficient government of any kind anywhere to assert, claim, imagine or believe that any just government should be made so small that it could be killed quickly and easily like some pest or bug. In fact, it is not merely anti-Constitutional, it is treason in the first order, no matter in what form of government it occurs.

America’s Progressive Income Tax System for Personal and Corporate Income, in which a higher percentage rate is paid upon greater earnings, has increasingly within the last 30 years (1988) been slowly changed to significantly advantage the Wealthy over and above the Average or Poor Citizens, and the larger portion of the burden of taxation has increasingly been shifted onto the Average or Poor Citizens. In essence, what has happened is that tax cuts for the wealthy and their corporations were handed out like free candy at the state fair.

Here’s an analogy to illustrate the immediate case in point:

Three people must move an 800-pound object.
They are:
1.) A Strong Man Bodybuilder;
2.) An Average Man, and;
3.) An 80-year-old, 80-pound Granny.
No one would dare expect the 80-year-old, 80-pound Granny to do the “heavy lifting,” or to shoulder a greater portion of the burden. Similarly, no one would expect the Average Man to shoulder a greater portion of the burden. Instead, most everyone would expect the Strong Man Bodybuilder to bear the greatest portion of the burden simply because he can, and has trained to do that very thing. As well, most would expect the Average Man to do some work, while almost no one would expect the 80-year-old, 80-pound Granny to do any physical labor, and instead, to take an advisory, or supervisory role if she did anything.

Those three people, in order, represent:
1.) The Wealthy and their Corporations;
2.) The Average People, and;
3.) The Elderly, Infirm, and Poor.

We justifiably ask, expect, and require government to provide honest, effective, ethical and efficient services without discrimination, no questions asked.

Government services,
along with every raw or finished material
and manpower,
come from the Private Sector.

Always have, always will.
There has NEVER been a “government factory” in our United States,
and there NEVER will be.
EVERY SINGLE SOLITARY ITEM our government has ever consumed, or will consume, comes from the Private Sector.
The metal and paper for the money in your pocket,
the ink that is printed upon it,
and the machines that make it…
all come from the PRIVATE SECTOR.
Roughly translated,
what that means is that somewhere,

a publicly-bid government contract
was awarded to some business entity
– most likely a small mom-and-pop owned business,
instead of some multi-national mega-corporation –
to provide raw or finished materials,

and/or services, aka manpower.
That money to purchase those items
comes from taxes,

and
it goes right back into the
Private Sector.

But, back to the rationale for, and necessity of a larger Congress and larger Supreme Court.

The Judiciary Act of 1869 established the Supreme Court’s size as 8 Justices and 1 Chief Justice, with 6 as quorum.

U.S. Population in 1870 was approximately 38,558,371. Andrew Johnson, a Tennessee Democrat was President, followed by Illinois Republican Ulysses Grant in March 4.

U.S. Population in 1910 was 92,228,496. William Howard Taft, an Ohio Republican, was President.

In 1911, the Supreme Court called John D. Rockefeller’s Standard Oil Company an “unreasonable monopoly” and broke it up under the auspices of the 1890 Sherman Antitrust Act. And with the Apportionment Act of 1911, Congress apportioned members of the House of Representatives at 435, effective March 1913. At that time, the ratio of Citizens per Representative was 212,020 to 1.

The 1920 Census showed that the majority of Americans were concentrating in cities, and nativists who worried about of the power of “foreigners,” blocked efforts to give cities more representatives. The 19th Amendment giving women the right to vote was ratified. Ohio Republican Warren G. Harding was President. U.S. Population was 106,021,537, an increase of 15% from 1910. The ratio of Citizens per Representative was 243,728 to 1.

In 1929 when Congress passed the Reapportionment Act establishing a permanent method of obtaining 435 members of the House of Representatives, U.S. Population was 121,767,000. That law neither repealed nor restated the requirements of the previous apportionment acts that districts be contiguous, compact, and equally populated.

In 1930, U.S. Population was 123,076,741. Calvin Coolidge, a Republican from Massachusetts, was President. The ratio of Citizens per Representative was 282,935 to 1.

In 1940, Congress again addressed apportionment to resolve the matter of fractional representation, meaning they established a formula use to obtain the 435 ratio of Members in the House of Representatives to People, and established the maximum number at 429 with 6 at-large non-voting delegates, for a total of 435. U.S. Population was 132,164,569. New York Democrat Franklin Delano Roosevelt was President. The ratio of Citizens per Representative waw 303,827 to 1. That year, the Supreme Court heard 151 cases.

By 1980, the Supreme Court heard about 150 cases annually. U.S. Population in 1980 was 226,545,805. California Republican Ronald Reagan was President. The ratio of Citizens per Representative was 520,795 to 1.

In 1982, Federal regulators broke up AT&T which was the monopoly owner of the Bell System telephone network.

In 2018, U.S. Population is 328,612,306 – over 8.5 times larger than it was in 1869, 3.6 times larger than in 1911, 2.7 times larger than in 1929, and over 1.45 times larger than in 1980. The ratio of Citizens per Representative is now 755,431 to 1.

During the last two centuries U. S. population has increased 48-fold while the number of memberships in the House of Representatives has only tripled in size (three-fold).

The Constitutional minimum district size is 30,000.

If we used the same ratio as the Apportionment Act of 1911,

when Congress’ size was fixed at 435,
and was then a ratio of
220,020 People to 1 Representative,

Congress’ present size would be 1494.

On September 25, 1789, the Congress passed 12 amendments to the Constitution of 1787 and only the first article, known as “Article the first” which addressed Congressional Districts apportionment, and stopped at 50,000 citizens per representative, failed ratification. It reads as follows:
 “After the first enumeration, required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred; after which, the proportion shall be so regulated by Congress, that there shall not be less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which, the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

If there was one Representative for every 50,000 persons, Congress would have 6572 members in the House of Representatives.

Even if Congress changed the apportionment to 100,000 per representative, the size of the House would be 3286. At 250,000 per representative, the size would be 1314. And if Congress were to double the current size of the House to 870, the ratio would be well over 377,000 people per representative. At 500,000 per, the House size would be 657. The current ratio, or Population Per Congressional Seat, ranges from 563,767 to 744,858 per, for Wyoming and Texas, respectively.

The Supreme Court is asked to hear between 7000 – 8000 cases annually, but now only hears about 80. New York Republican Donald Trump is President.

There are 13 United States Courts of Appeal in 11 multi-state Districts, including the United States Court of Appeals for the Federal Circuit, and the D.C. Circuit.

According to the U.S. Constitution, Article III, Section I, “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior…” which has been interpreted to mean a lifetime appointment, and has never been challenged. There are currently 179 Federal Appeals Court Judges.

The longest serving SCOTUS Justice was William O. Douglas, who served 36.5 years (13,358 days), followed in order by Stephen Johnson Field, John Paul Stevens, Chief Justice John Marshall, and Hugo Black of Alabama.

In modern history, the longest serving Justice was recently retired Associate Justice Anthony Kennedy who served slightly over 30 years (11,121 days), while Harvard Law School graduate Antonin Scalia who died in office in 2016 served a little over 29 years (10,732 days).

Of the 112 Justices appointed to the Supreme Court, 46 have had law degrees, 18 attended law school but did not receive a degree, and 47 received their legal education without any law school attendance.

James F. Byrnes of South Carolina was the last SCOTUS nominee without a law degree, was nominated June 12, 1941 by President Franklin Delano Roosevelt and confirmed by the Senate that same day. He resigned October 3, 1942 after 16 months of service (452 days), to accept a series of appointments throughout WWII, became Secretary of State under POTUS Truman, and later became Governor of South Carolina immediately after Strom Thurmond.

Associate Justice Stanley Forman Reed of Kentucky who served from 1938-1957 (6,965 days), was the last Justice who did not graduate law school, though he had some formal law school education, and died in 1980.

Since the Court’s inception, 20 Justices have been graduates of, or attended Harvard Law School, while 18 have graduated or attended Yale Law School, and 11 graduated or attended Columbia Law School. There have been 28 Justices attend other schools, and 5 which had no formal university or college education. Justices Roberts, Kennedy, Breyer and Kagan are Harvard Law graduates, Thomas, Alito, and Sotomayor are Yale Law graduates, and Ginsburg is a Columbia Law graduate.

The United States Constitution was written in 1787, and since then, all 50 states have rewritten their constitutions. The average tenure for the first 20 Supreme Court justices was 15 years, when the life expectancy was closer to 40. In the past generation, that tenure now averages more than 26 years. According to a 2015 Reuters/Ipsos poll, 66% of Americans support a 10 year term limit for Supreme Court justices.

The SCOTUS should be enlarged to accommodate at least 13 Justices, including a Chief Justice, and those Justices shall fill one seat from each of the 13 Circuits in the Federal Districts Courts of Appeals, including the D.C., and Federal Circuit. The Chief Justice should be chosen by a simple majority of secret ballot from among the 13 Justices, who may also name themselves as a CJ candidate.

Federal Circuits should, as much as is possible, contain a similarly close or equal population.

By choosing Justices one from each of the 13 Circuits in the Federal Districts Courts of Appeals, including the D.C., and Federal Circuit, the differences in judicial philosophies more representative of the people and law schools of the region and Circuits/Districts will be had. Federal Judges are chosen from among the people, so should the SCOTUS have educational, ethnic, social, religious, and sexual diversity to represent the prevailing schools of thought on judicial branch matters and operations. A quorum would be 9 Justices.

The Federal Districts are, and include:

1 – ME MA RI NH PR

2 – NY CT VT

3 – PA NJ DE USVI

4 – VA WV NC SC MD DC Circuit Federal Circuit

5 – LA MS TX

6 – TN KY OH MI

7 – IL IN WI

8 – AR MO MN ND SD NE

9 – AK HI AZ CA NV OE WA ID MT GU NMI

10 – CO NM OK KS UT WY

11 – AL GA FL

Term limits are seen as a way of curtailing entrenched power in Washington.

If SCOTUS Justices were to have 13-year terms, the Corresponding Elections/Terms POTUS/House/Senate would be:

1 – 2018 – mid-term 435 House/33 Senate (Class 1)
2 – 19
3 – 20 – Census; POTUS, House, Senate (2021-2027) (Class 2)
4 – 21
5 – 22 – House, Senate (Class 3);
6 – 23
7 – 24 – POTUS, House, Senate (Class 1)
8 – 25
9 – 26 – House, Senate (Class 2)
10 – 27
11 – 28 – POTUS, House, Senate (Class 3)
12 – 29
13 – 30 – House, Senate (Class 1)

(https://en.wikipedia.org/wiki/List_of_elections_in_the_United_States)

See also: https://FixTheCourt.com/

“Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. The federal judiciary today benefits from an insulation from political pressure even as it usurps the roles of the political branches.”
– John Roberts, in 1983, who later because SCOTUS Chief Justice

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