Over the last few years, I’ve become aware of a group called the Institute on the Constitution. Its purpose is to “restore the constitutional republic through grassroots education,” but one wrinkle they’re adding in the near future is a course on Delaware’s Constitution that will be held around the state.
However, all I had to do was read the document to see what the intention of its writers has been regarding legislative districts, as both the initial layout and proposed expansions were spelled out – if rather archaically – in Articles 2 and 2A.
Interestingly enough, the original intent was for 35 House members representing various districts, usually Hundreds. (In the city of Wilmington, it was broken down further to Wards.) Despite the population disparity between New Castle County – then, according to the latest Census at the time in 1890, it had 57.7% of the state’s population – and the rest of the state, New Castle was assigned 15 Representatives, while the other two counties were given 10 apiece.
In Article 2A, it was further decreed that once a district reached a population of 15,000 plus a “major fraction” (which I would interpret as over half, or 7,501) it was entitled to another representative. Obviously over time, some areas have well exceeded their apportionment while others are way short. It’s probably enough to render a strict reading of this provision meaningless, particularly since the Delaware Constitution also states that, “After each official federal decennial census the new Representative Districts created pursuant to this Section (2A) shall be abolished and the Representative Districts set forth in Section 2 of this Article shall again be re-divided as set forth herein.” In theory, of course, these lines can be bent and shaped any way the majority party pleases, although to me that provides legitimate Constitutional questions as to why a district can be in two counties and how Kent and Sussex counties no longer have ten representatives apiece. (I’m betting it’s an effect of something I’m discussing later on.)
Oddly enough, the state Constitution also provided for seven Senators from each county and laid out Senate districts based on Representative districts. I’m going to come back to this in due course, but first let’s discuss an idea for the House.
In Article XVI of the Delaware Constitution, there is a provision to allow voters a say on whether there should be a constitutional convention. It would take a 2/3 vote of each chamber to put it on the ballot.
Now one would think that the majority party might jump at the chance to change the state Constitution, but it doesn’t appear they pay much attention to it anyway. Regardless, assuming such a motion were to pass, the next step would be to choose Delegates for the convention, and that’s where it would get interesting. Because there’s no precedent, the General Assembly would legally have to hew to the initial 35 representative lines for the convention’s membership (15 from New Castle, 10 apiece from Sussex and Kent) then add six other participants – two from New Castle County, two from Kent County, and two from Sussex County. All of these participants would have to be selected by the voters of the respective districts or by the counties at-large, which would give us the opportunity to place 25 or so right-thinking people on the convention committee.
The idea here would be to reset the House: not to the initial 15/10/10 arrangement, because that would be unfair to New Castle County, but to expand the House to about 75 members, which would place districts under the initial 15,000 population threshold with room to grow. In such an arrangement, New Castle would currently have 43 members, 14 for Kent, and 18 for Sussex, with each district averaging about 13,200 people. It could also be incorporated that the House would expand at each Census as necessary to keep the representative district population at 15,000, like the state Constitution initially intended.
The Senate is where things get intriguing. While we still have 21 state Senators, this provision was nullified by the incorrect judicial overreach in two separate cases dating from the 1960s, Baker v. Carr and, later, Reynolds v. Sims, which mandated all state legislative districts be of equal population, whether in the lower or upper chamber. While the subject states were incorrectly maintaining population disparities in their lower legislative chambers, the model of the U.S. Senate should have remained valid for states to follow. In his dissent on Reynolds v. Sims, Justice John Marshall Harlan correctly asserted that, “I think it demonstrable that the Fourteenth Amendment does not impose this political tenet on the States or authorize this Court to do so.” We take the Fourteenth Amendment way too far sometimes and pull our punches in others, but that’s a subject for another day. But it is sufficient to say that the SCOTUS ran roughshod over our Delaware state constitution in both House and Senate composition.
I can work with this on the House side, since the intent is for equal representation for the people. However, one aspect the Court did not appear to address was this: what if it was no longer an individual’s right to directly vote on their Senate representative?
Prior to the passage of the Seventeenth Amendment to the United States Constitution, each state legislature chose its Senators. This insured states would have a voice in the federal government commensurate with that of the people, who directly elected House of Representative members that were apportioned by state population. (Thus, for most of its history Delaware has been represented at-large by just one House member.) There was nothing wrong with that model, which remains somewhat in effect since the number of Senators from each state hasn’t changed, just the method of selection. While it would be even better if the Seventeenth Amendment were somehow repealed (sigh), it’s still an important check on large states, whether they be California, Florida, or Texas, running rampant on federal government as a coalition of smaller states can keep legislature detrimental to them at bay.
To me, it would be worth the court fight certainly required to install this system in the Delaware Senate, where the legislative bodies of each county would select seven Senators apiece on staggered terms to serve in the Senate. It would make local elections vastly more important and allow for the counties to have their voice heard, because the individual concerns of Kent and Sussex are drowned out by the massive delegation New Castle brings to the table. News flash: we ain’t NCC down here.
I can guaran-damn-tee that people are going to read this final part and think I have lost my ever-lovin’ mind. But look at all the Left has foisted on us in the last 20-30 years and think about how crazy some of that would have sounded in 1970 – yet here we are, dealing with it. At some point, the pendulum has to swing, and with any luck and assistance from the Lord above I will be around to see our Constitution come back stronger than ever. It has to begin someplace.