1. HR 1173, 106th Congress, 1st Session.

2. HR 1173, 106th Congress, 1st Session.

3. PL 90–196.

4. The most important exception came during the fifty years after the founding when states experimented with electoral systems. For details, see, Hacker, Andrew, Congressional Districting: The Issue of Equal Representation (Washington, DC: The Brookings Institution, 1963), 40–42 Google Scholar; and Zagarri, Rosemarie, The Politics of Size: Representation in the United States 1776–1850 (Ithaca: Cornell University Press, 1987), 105–24Google Scholar.

5. Baker v. Carr began the “reapportionment revolution” by overturning the court's finding in Colegrove v. Green that such cases concerned “political questions” and thus were not for the court to decide. (Colegrove v. Green, 328 U.S. 549. 1946) (Baker v. Carr, 369 U.S. 186. 1962). The “one-person-one-vote” standard is only later applied in (Reynolds v. Sims, 377 U.S. 533. 1964). The districting question has been controversial since just after the founding of the United States. But the recent wave of controversy was begun first by the court's insistence on strict equality between districts and then with the enforcement of the Voting Rights Act of 1965 (VRA) and its extension through the 1970s and in 1982. The literature on the districting cases and the VRA is voluminous. For a good history of the early cases see, Dixon, Robert G., Jr., Democratic Representation: Reapportionment in Law and Politics (New York: Oxford University Press, 1968)Google Scholar; and Cortner, Richard C., The Apportionment Cases (Knoxville: University of Tennessee Press, 1970)Google Scholar. For the VRA, see, Controversies in Minority Voting: The Voting Rights Act in Perspective, eds. Bernard Grofman and Chandler Davidson (Washington, DC: The Brookings Institution, 1992). For a more recent analysis, see, Bybee, Keith J., Mistaken Identity: The Supreme Court and the Politics of Minority Representation (New Jersey: Princeton University Press, 1998)Google Scholar.

6. The list of justifications for territory is not meant to be exhaustive. But I believe these are the strongest reasons one could offer in support of territory. Other reasons, such as “that's just the way its always been done” may generate strength after a polity exists. Still others (“Joe likes it that way.”) are possible reasons but not particularly good ones.

7. The idea here is to apply Tiebout's model to representation, and therefore requires “representation” to be treated as a local public good. Charles Tiebout, “A Pure Theory of Local Expenditures.” Journal of Political Economy 64 (1956): 416–24. Even if representation could be treated as a public good, I assume few people would find persuasive the claim that people move to maximize their allocation of representation: the costs of moving are simply too high compared to the benefits of living in a different congressional district. Although I find the notion of representation as a public good to be both intriguing and promising, I will not pursue the matter here. The idea of consenting to how one's vote is counted is a related but very different issue.

8. I do not wish to enter the debate here about whether representative government was new, or newly revived in the seventeenth and eighteenth centuries, particularly in France and the United States. Nor will it be fruitful to engage the claim that representative government is a species all its own, combining aspects of democracy and aristocracy. For a penetrating discussion of these issues, see Manin, Bernard, The Principles of Representative Government (New York: Cambridge University Press, 1997)CrossRefGoogle Scholar. It is mostly irrelevant to my discussion here how we should understand these themes. Whether a new form of government or not, and whether democratic or a mixture with aristocracy, representative government requires that a large citizenry be divided in some way to have their votes counted. And this has usually meant dividing them into constituencies for that purpose.

9. Importantly, many of arguments for creating “minoritymajority” districts hinge on electoral outcomes, and not, strictly speaking, on the representation of interests. Thus, the concern is to increase minority representatives within a legislative body whether or not there are neatly defined “black” issues. For some examples see, Jane J Mansbridge, “Should Blacks Represent Blacks and Women Represent Women? A contingent ‘Yes’,” Journal of Politics, 61 (1999): 628–57; Young, Iris Marion, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990)Google Scholar; and Phillips, Anne, The Politics of Presence (New York: Oxford University Press, 1995)Google Scholar. The descriptive makeup of a legislative body is an analytically separate issue from creating districts around homogenous interests. There are other ways to achieve descriptive diversity within the legislature without homogenizing interests within a constituency. Parité in France is an excellent example of this. For more on the issues of the idea of “constituency” and how it relates to these separate topics, see, Andrew Rehfeld, “Constituency and Legitimate Representation,” in “Silence of the Land: An Historical and Normative Analysis of Territorial Political Representation in the United States” (Chicago: Ph.D. diss., University of Chicago, 2000), 321–89.

10. Karlan, Pamala, “A Bigger Picture,” in Reflecting All of Us: The case for proportional representation, eds. Cohen, Joshua and Rogers, Joel (Boston: Beacon Press, 1999), 76 Google Scholar.

11. For examples of advocacy see “Testimony of Roger Clegg … before the House Judiciary Committee Subcommittee on the Constitution regarding H.R. 1173” (http://www.house.gov /judiciary/leg0923.htm); “Testimony of Theodore S. Arrington … before the House Judiciary Committee Subcommittee on the Constitution regarding H.R. 1173” (http://www.house.gov /judiciary/arri0923.htm); and “What is Proportional Representation,” Center for Voting and Democracy (http://www.fairvote .org/pr/q_and_a.htm). For examples in the academic literature, see, Williams, Melissa S., Voice Trust and Memory: Marginalized groups and the failings of liberal representation (New Jersey: Princeton University Press, 1998), 25–26, 39, 173Google Scholar; Zagarri, The Politics of Size, 108; and Guinier, Lani, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (New York: The Free Press, 1994), 121 Google Scholar, passim. Guinier never explicitly makes the argument concerning the founders’ intent. But the implication of her argument, building from Madisonian representation and “turn taking” to arrangements today, leaves the connection implied. Hovering over her discussion is thus this point: Madison thought the territorial district captured the right kinds of interests; they may have in his day, but they do not now. It is the historical part of the implication that I reject.

12. For good examples of this use of Federalist 56, see Tory Mast, “History of Single Member Districts for Congress” (http://www. fairvote.org/reports/monopoly/mast.html); “Testimony of Mark E. Rush … House Judiciary Committee, Subcommittee on the Constitution” (http://www.house.gov/judiciary/rush0923.html); and Zagarri, The Politics of Size, 107.

13. For a sampling of contemporary arguments, see, Amy, Douglas, Real Choices New Voices: The Case for Proportional Representation Elections in the United States (New York: Columbia University Press, 1993)Google Scholar; Guinier, The Tyranny of the Majority; Mansbridge, “Should Blacks Represent Blacks”; Phillips, The Politics of Presence; Schwartz, Nancy L., The Blue Guitar: Political Representation and Community (Chicago: The University of Chicago Press, 1988)Google Scholar; and Williams, Voice, Trust and Memory, among many others.

14. Because I am interested in how the founders understood themselves, I will only be interested in whether or not they believed their claims to be true, and not whether they turn out to be consistent with their expectations.

15. There is the further point that districting was a limited case of federalism. Congress retained the constitutional right to legislate in this arena, which they have done many times.

16. See Zagarri, The Politics of Size, 105–24, for a good account of state response to the electoral laws after the founding. Among her findings is that “Politicians began to realize that the method used to elect congressmen would play a large part in determining who was ultimately elected” (107). Therefore, whether states chose territorial districts or a multimember system after ratification can be understood at least in part as political manipulation rather than based on principled ideas of representation. The crux of my study questions her more important conclusion that there were principled differences between large and small states concerning their theories of representation. “The district system gave representation to the full variety of interests contained within a state – a variety more likely to be found in larger states.” Yet the difference between small and large states may be explained by this alternative hypothesis: if representation required close physical proximity between voters, large states would have to be subdivided to accomplish this goal; by contrast such division would be less necessary for small states. Thus, interests and their variety, and different theories of representation may not explain the difference between large and small states, as she claims they do.

17. Very rough population equality between districts was expected when the Constitution was written, consistent with the experience of districting for state legislature under the Articles of Confederation and during colonial rule. The number comes from the Constitutional provision that states would receive no fewer than one representative for every 30,000 people (counting free persons as one each, excluding Indians, and three-fifths “all other persons,” i.e., slaves). US Constitution, Article 1, Section 2.

18. This explosion is also due to the extension of suffrage, and to the fixing of congressional seats to 435.

19. The expectation comes from James Madison, Federalist 57, in Alexander Hamilton, James Madison, and John Jay, The Federalist, ed. Jacob E. Cooke (Middletown, CT: Weslyan University Press, 1961). For the assessment that Madison's estimate was correct see Hacker, Congressional Districting, 11.

20. Statistical Abstract of the United States (Washington, DC: U.S. Bureau of the Census, 1998), 283, Table 464. The average (199,685) is derived from total numbers of votes cast in the 1996 congressional election (86,863,000) divided by the number of seats elected (435). In any particular district the total votes cast obviously varied.

21. The loss of publicity in voting results in the loss of accountability for one's votes, and thus the accountability citizens have to one another in their most regularized political act. The loss of “between constituent accountability” is lamentable and should not be forgotten, even if the threat of coercion makes the private ballot necessary. To rephrase Churchill, the private ballot may be the worst way to vote in a democracy – except for all the others.

22. Dewey, John, The Public and Its Problems (USA: Swallow Press, 1954), 42 Google Scholar.

23. Steven Pincus has suggested to me that the use of territory in England may not have been as “principled” a mechanism as I claim. The contrary argument is that the very factors that rendered society deeply localized also rendered individuals less able to imagine difference between communities regardless of any actual differences. Thus, the principle of localism that I claim animated the first use of territorial districts – local groups were differentially defined by local interests – is an exaggerated claim. Pincus's argument provides a good alternative hypothesis and further research would be needed to decide the point. Nevertheless, his argument is consistent with my broader claims that the original “district” was formed because that is where people spent most of their lives. By the American Revolution, differentiation between local communities was not only imagined, it was explicitly articulated and formed the basis of the more heated debates on the nature of representation in the years immediately following. For a particularly good example of this, see, Theophilus Parsons, “The Essex Result,” in American Political Writing During the Founding Era, eds. Charles S. Hyneman and Donald S. Lutz (1778; Indianapolis, IN: Liberty Press, 1983), 481–522. (Steven Pincus, personal communication, Dec. 4, 1998.)

24. How else could constituencies be defined? In the same way, we form civil and professional associations: around specific interests, by identities, by professional groups, etc. Instead of territorial districts, we might have doctors, teachers, and mechanics forming separate constituencies to elect their own representatives. Or maybe each religious sect could have its own representative. In France under the Estate system, and in Early Modern England, classes were given representation, but these classes were still grouped territorially. And from the beginning of the eighteenth century district lines have been drawn to promote political, rural or urban, and racial interests (ensuring special protections for whites, then non-whites). If we think it is a good thing to draw lines around these groups, the question must be asked, why not in other ways?

25. As Pasquet observed, “The king was supposed to ‘live of his own’,” so aid was considered “a quite exceptional gift.” D. Pasquet, An Essay on the Origins of the House of Commons (1925; CT: Archon Books, 1964), 11. The overspending of Kings Richard I and John due to failed military conquest and maladministration preceded the institutional developments in the thirteenth century, and parallel in obvious ways the early Stuart monarchs and the more dramatic changes 400 years later.

26. This is also because the council was not a deliberative or representative body in the same way as modern representative bodies are today. See discussion below.

27. Pasquet, Origins of the House of Commons, 29. The meanings of “representation” and “consent” were much different in early modern England then what they are today. Instead of the deliberative body proposing new laws and governing, that original body gave to the king “compulsory consent” of his various subjects. Thus the deliberation of the group would have been less important than if the group (later Parliament) took on legislation. On the development of representation and consent in early modern England, see, Constantin Fasolt, “Quod Omnes Tangit Ab Omnibus Approbari Debet: The Words and the Meaning,” in In Iure Veritas: Studies in Canon Law in Memory of Schaefer Williams, eds. Steven B. Bowman and Blanch E. Cody (Cincinnati: University of Cincinnati College of Law, 1991).

28. Pasquet, Origins of the House of Commons, 29.

29. Homans, George C., English Villagers of the Thirteenth Century (Cambridge, MA: Harvard University Press, 1941)CrossRefGoogle Scholar, quoted in Bender, Thomas, Community and Social Change (Baltimore, MD: The Johns Hopkins University Press, 1978), 61 Google Scholar.

30. See n. 23 above for an alternative explanation.

31. Fasolt, “Quod Omnes Tangit,” 21–55.

32. Pasquet, Origins of the House of Commons, passim.

33. Ibid., 31. The need for local knowledge in the legislature becomes a familiar issue in the ratification of the U.S. Constitution.

34. Montesquieu, , The Spirit of the Laws (1748; New York: Cambridge University Press, 1989)Google Scholar, bk. 11, chap. 6; Hamilton, Madison, and Jay, The Federalist; Phillips, Herbert, The Development of the Residential Qualification for Representatives in Colonial Legislatures (Cincinnati: Abingdon Press, 1921)Google Scholar.

35. The initial role of the commons as a restraint against the crown has been widely discussed. For one example, see, Reid, John Philip, The Concept of Representation in the Age of the American Revolution (Chicago: The University of Chicago Press, 1989), 7 Google Scholar.

36. On the changing role of parliament in the seventeenth century, see Fasolt, , “Quod Omnes Tangit,” and Wood, Gordon, The Creation of the American Republic (1969; New York: Norton, 1993), 26.Google Scholar

37. It is controversial what role either man played in the actual writing of the documents, but their indirect influence is well established: Harrington was a close personal friend of William Penn; Penn claims to have modeled his constitution on Oceana, and he famously influenced John Adams. Lerner, Ralph, The Thinking Revolutionary: Principle and Practice in the New Republic (Ithaca, NY: Cornell University Press, 1988), 25 Google Scholar; Pocock, J.G.A., “Introduction,” in The Commonwealth of Oceana and A System of Politics, ed. Pocock, J.G.A. (New York: Cambridge University Press, 1992)Google Scholar; and Pole, J.R., Political Representation in England and the Origins of the American Republic (New York: St. Martin's Press, 1966), 11–12 CrossRefGoogle Scholar, 78. Similarly, Locke was the recording secretary for the commission that wrote the constitution of the Carolinas. Although Poore attributes its authorship to Locke, it has been more vigorously disputed. The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States, in Two Parts, ed. Ben Perley Poore, 2d ed. (Washington, DC: Government Printing Office, 1878). Whatever the specific connection between the men and the institutions, examples of their thought abound. For example, the Fundamental Constitutions of Carolina (1669) bears Locke's view that the protection of property was an important aim of governance. Unlike any other constitution or charter of the colonies, which begin with the establishment of governmental bodies (a legislature, executive and the courts, for example), the first twenty-six paragraphs of the Carolinian Constitution establish property rights. Paragraph twentyseven finally mentions a government institution, the courts, but for the purpose of protecting property owners or adjudicating between claims.

38. Bailyn, Bernard, The Ideological Origins of the American Revolution, Enlarged Ed. (Cambridge, MA: Belknap Press, 1992)Google Scholar. The regaining of English rights perceived to have been lost becomes an explicit point among the American revolutionary writers and forms much of the justification for the Declaration of Independence. See also, Charles S. Hyneman and Donald S. Lutz, eds., American Political Writing.

39. Bailyn makes a similar connection between medieval English representation and that of the colonies. Bailyn, Ideological Origins, 162. By “local political subdivision,” I mean a political and social community defined independently of its role as constituency for the colonial legislature. In the colonies, such territorial units were called “town,” “parish,” or “county,” each of which denoted different objects. Rutman makes a similar observation on the difference of place names. Darrett Rutman “The Social Web: A Prospectus for the Study of the Early American Community,” in Insights and Parallels, ed. William L. O’Neill (Minneapolis, MN: Burgess, 1973), 165.

40. Bender, Community and Social Change, 65.

41. Darrett Rutman, “Assessing the Little Communities of Early America,” William and Mary Quarterly XLIII (1986): 167.

42. Bender, Community and Social Change, 67. See also fn. 56 for Bender's references. This point, nicely expressive of the close, local political culture of New England, nevertheless misses two important historical and analytical points. First, the fact that town records officially document decisions by “general agreement” might be explained as a replication of the practice of English Parliament. Until the mid-eighteenth century, Parliament regularly debated behind closed doors and voted on measures after such deliberation. Following the initial vote, the matter would be introduced again for a second vote in which the first result was given unanimous support. Thus, the body could report that it unanimously supported or rejected a particular measure, supporting the institution of Parliament even when there were deep disagreements. Pole, J.R., The Gift of Government: The Richard Russell Lectures, Number One (Athens, GA: The University of Georgia Press, 1983)Google Scholar, chap. 5. Returning to New England, the fact that the town records show “general agreement” may say little about the level of disagreement that would have been ignored for the sake of communal stability. The distinction between actual conflict within a body and the public show of stability during this time may thus be mischaracterized as idyllic moments of consensus. See, for example, Mansbridge, Jane J., Beyond Adversary Democracy (Chicago, IL: University of Chicago Press, 1981), 2Google Scholar. Further, even if there were general agreement on measures in the town meetings, Bender’s description ignores how interests regularly play out in deliberative settings, even though participants and advocates of deliberation want to contrast these settings to raw appeals to power. See, Mansbridge, Beyond Adversary Democracy; and Lynn Sanders, “Against Deliberation,” Political Theory 25 (1997): 347–76. Bender's historical arguments about the closeness of community still stand.

43. Bender Community and Social Change, 68. See also Dinkin, Robert J., Voting in Provincial America: A Study of Elections in the Thirteen Colonies 1689–1776 (Westport, CT: Greenwood Press, 1977)Google Scholar. Speaking of New England towns, he writes, “Unanimity was considered a highly valued goal by the majority of the inhabitants. Conflict over public issues was something to be avoided or at least played down as much as possible.” But see my comments in n. 42, above.

44. Cook, Edward M., Jr., The Fathers of the Towns: Leadership and Community Structure in Eighteenth-Century New England (Baltimore: Johns Hopkins University Press, 1976), 12–17.Google Scholar

45. Pole, Political Representation, 40.

46. Ibid., 41.

47. Rutman, “Assessing the little Communities,” 167.

48. Lutz, Donald, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Baton Rouge: Louisiana State University Press, 1980), 153 Google Scholar. However, in North Carolina there was more localized sentiment. In the early eighteenth century, there was agitation about drawing representatives from the county “and the people were well pleased when an act of 1716 provided that the parish instead of the county should be the election district.” Bishop, Cortland F., History of Elections in the American Colonies (New York: Columbia College, 1893), 42 Google Scholar. But, as Bishop notes, the act was repealed, causing a revolt that led to the proprietors selling their interests to the crown which in turn established local representative institutions.

49. Jefferson, Thomas, Notes on the State of Virginia, ed. Merrill D. Peterson (New York, NY: Library of America, 1787), 233 Google Scholar (Query XII). Originally, the Virginia settlement extended north to include the Chesapeake Bay. In addition to navigable passages, the availability of rich soil and farmland provided more usable land on which to settle. In New England, for example, the geography did not permit such wide use of land and necessitated closer habitations that subsequently developed into towns. See Lutz, Popular Consent, 153–154.

50. Jefferson, Notes on the State of Virginia, 233.

51. Pole Political Representation, 137. Rutman concurs on this stratification. Rutman “Assessing the Little Communities,” 174.

52. Bender Community and Social Change, 70–71. See also, Bridenbaugh, Carl, Myths and Realities: Societies of the Colonial South (New York, NY: Antheneum, 1965), 131–32 Google Scholar; Rutman, “The Social Web”; and Rhys Isaac, “Dramatizing the Ideology of the Revolution: Popular Mobilization in Virginia, 1774–1776,” William and Mary Quarterly 33 (1976): 357–85.

53. The debate over the social diversity of early America tends to take localism as a given, questioning instead the similarity or differences between groups and how they interacted. See, for example, Bernard Bailyn, “A Domesday Book for the Periphery,” in Diversity and Unity in Early North America, ed. Philip D. Morgan (New York, NY: Routledge, 1993), 11–42; Jack P. Greene, “Convergence: Development of an American Society,” in Diversity and Unity; and Rutman “Assessing the Little Communities.” It would be an overstatement to say that local groups were radically homogenous, whatever that would mean. But I take as well established that identity and community were based in local communities during the Colonial period.

54. Rhode Island and Connecticut were the exceptions. Dinkin, Voting in Provincial America, 5.

55. Lutz, Popular Consent, 154.

56. Bailyn, Ideological Origins, 203.

57. Ibid., 203–4.

58. Zagarri, Politics of Size, 37–38. Georgia was not established until 1732.

59. Bishop, History of Elections, 16, and Zagarri, Politics of Size, 37. Rakove observes that, “New communities had generally received representation as they were organized,” thus reducing the English problem of “rotten boroughs.” Rakove, Jack, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996), 212 Google Scholar.

60. Lutz, Popular Consent, 155.

61. Ibid.

62. Ibid., 159.

63. Lutz, Popular Consent, 160. See also Rakove, Original Meanings, 213, on the “localness” of colonial legislatures.

64. Bailyn, Ideological Origins, 164.

65. Bender, Community and Social Change, 67.

66. Lutz, Popular Consent, 76.

67. Wood, Creation, 131–32.

68. Of course, the definition of “person” excluded most of the population. Nevertheless, this was progress.

69. Local politics were viewed with higher esteem and importance than their colonial and national counterparts. For a nice description of this see Ralph Lerner, “Giving Voice,” Giornate Atlantich Di Storia Constituzionale. Laboratorio di Storia Constituzionale “Antione Barnave” Universita degli Studi di Macerata, Sept. 13–15 1995, 15.

70. Rakove, Original Meanings, 25–28, and Wood, Creation, 463–67.

71. This view of corporate representation was, of course, changing in favor of representation of persons and in some cases property. For an early example of this, see, Parsons, “The Essex Result.”

72. Wood, Creation, 192. Quoting from Instructions of the Freeholders of Buckingham County, VA. (May 1776), ed. Force, American Archives, 4th Ser., VI, 458–59 (192 n. 51 in Wood).

73. Qualifications for electors of U.S. Representatives are constitutionally defined to match those of the electors of “the most numerous branch of the State Legislature.” (U.S. Constitution, Art. 1, Sec 2).

74. U.S. population in 1790 was 3,929,214 (Statistical Abstract, 1998, 8). State and local population figures in this paragraph are drawn from John S. Bassett, The Federalist System (New York, NY: Cooper Square, 1968), 163–77.

75. They were Norfolk, Petersburg, and Alexandria. Bassett, The Federalist System, 168.

76. They were the counties of Accomac, Amelia, Bedford, Berkeley, Fauquier, Frederick, Halifax, Henry, Loudon, Mecklenburg, Monongalia, and Montgomery. Jefferson, Notes on the State of Virginia, 215 (Query IX).

77. Jefferson, Notes on the State of Virginia, 216 (Query IX).

78. Dahl and Tufte argue that nationalism weakened the theory of the small city-state. Dahl, Robert A. and Tufte, Edward R., Size and Democracy (Stanford: Stanford University Press, 1973), 8.Google Scholar Consistent with their argument, non-community based systems of representative government (the large territorial unit) may foster the bond between citizen and nation giving some rise to nationalism. Of course, just the opposite might occur. With local community no longer mattering in national government, there is no easy way for citizens to attach to the nation, to feel the pride and belonging to a particular nation. (I explore attachment in much greater depth below.)

79. Alexander Hamilton, Federalist 35, 219. In addition to these, see, Kurland, Phillip B. and Lerner, Ralph, eds., The Founders’ Constitution (Chicago: University of Chicago Press, 1987), 1:382– 423 Google Scholar, 2:41–68, 2:86–145. (Hereafter “FC, Vol. 1, 382–423.”) John Adams, “Thoughts on Government,” in American Political Writing, 401–9; Anonymous “Four Letters on Interesting Subjects,” in ibid., 368–90; Anonymous, “Rudiments of Law and Government Deduced from the Law of Nature,” in ibid., 565–605; Carter Braxton, “A Native of This Colony,” in ibid., 328–29; and Parsons, The Essex Result.

80. I refer the reader back to section 1.3 for a discussion of the indirect method of analysis I am employing.

81. While it is true that people could choose to move from one district to another to get better representation, whatever that would mean, there was no discussion that such movement would take place. Although migration throughout the states was fluid at this period, I assume no one used this argument for the same reason few would find it persuasive today: the costs of moving are simply too high compared to the questionable marginal benefits of living in a different congressional district.

82. See section 1.3 above.

83. The extension of “property” from land and goods into broader rights goes back to England in the early seventeenth century. Holmes, Clive, “Parliament, Liberty, Taxation, and Property,” in Parliament and Liberty from the Reign of Elizabeth to the English Civil War, ed. Hexter, J.H. (Stanford: Stanford University Press, 1992), 122–54Google Scholar; Reid, The Concept of Representation in the Age of the American Revolution, 41; and Lerner, The Thinking Revolutionary, 10–16.

84. The expansion of property to non-land based forms was central to Madison's argument of pitting faction against faction. As Diamond observes, Publius sees in the large commercial republic the possibility for the first time of subordinating the difference over the amount of property to the difference over kind of property. In such a republic the hitherto fatal class struggle is replaced by the safe, even salutary struggle among different kinds of propertied interests. (Martin Diamond, “The Federalist,” in History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey [Chicago: University of Chicago Press, 1987], 677) On Madison's expectation that commercial and manufacturing interests would overshadow traditional landed, agrarian interests, see, Robert J. Morgan, “Madison's Theory of Representation in the Tenth Federalist,” Journal of Politics 36 (1974): 874–75.

85. Wood, Creation, 219.

86. See for example, U.S. Constitution, Art 1, Sec. 9. Lutz offers a more nuanced argument of the connection between property and territorial interests. “There was also the important fact that the towns in the interior were poorer, and generally speaking, had few wealthy people, if any. Therefore, the property requirement also had geographical implications” (Lutz Popular Consent, 114). Yet, these geographical variations were not prominently noticed in the debates over the constitution, by which time property requirements had been dramatically lowered throughout the states. Lutz notes in the same passage, That property requirements were only slightly reduced and not eliminated does not so much reflect a negative attitude toward popular programmatic consent – although there was a substantial amount of negative sentiment – as it reflects the general irrelevance of the requirement.

87. These justifications appear in various pamphlets throughout the period. For a useful discussion of property and representation, see, Reid, The Concept of Representation in the Age of the American Revolution, 31–42; Wood, Creation, 214–22; and Lutz, Popular Consent, 100–106.

88. Montesquieu, Spirit of the Laws, 160.

89. Good ideas die hard: Ross Perot's 1992 presidential campaign employed this rationale as an appeal to voters who were told that his vast wealth would enable him to act independent of special interests.

90. I am indebted to Ralph Lerner for this point. For a forceful argument about the aristocratic nature of elections, see, Bernard Manin, Representative Government, passim.

91. Andrew Rehfeld, “Constructing the Nation: Territorial Representation and the 13 Original State Constitutions,” paper presented at the American Political Science Association Annual Meeting, Washington, DC, August 1997.

92. John Adams, “Thoughts on Government,” in American Political Writing, 403.

93. See section 1.3 above.

94. I do not mean to imply that districts had always been coextensive with the town; as I explained in the first section, exceptions occurred during the period of confederation. The creation of a national system that valued equality of population and a small deliberative representative body, made it necessary to sever the link between districts and political units.

95. Alternatively, they could have followed Thomas More’s plans in Utopia and enforced population limits on towns to ensure roughly equal population. If towns were to grow too big, the state would physically move people to another town. If town population declined, the state would combine towns or disperse the population equally. This, of course, would have violated just about every underlying principle of liberty and freedom that fueled the revolution. The point is that equal population and community integrity are not a priori opposed to each other in representative systems. See Thomas More, Utopia, eds. George M. Logan and Robert M. Adams (Cambridge: Cambridge University Press, 1993), 55–56.

96. See section 1.2 above for the counter claim that this was founding intent.

97. Bailyn, Ideological Origins, 273.

98. Wood, Creation, 179, quoting Wells and Trenton.

99. James Madison, “Letter to Thomas Jefferson,” Oct. 24, 1787, in Papers of James Madison, ed. William T. Hutchinson, Weilliam M. E. Rachal, Robert Rutland, et al. (Chicago: University of Chicago Press, 1962–1991), 10:211. (Hereafter, “PJM, 10:211”)

100. Although local communities defined the constituency, not all local communities received representation for purely political reasons. Zagarri, Politics of Size, 43. Also, “[b]y 1787, only five states continued to use towns as the apportionment unit, five used the county, and four used the county plus the few major cities” (Lutz, Popular Consent, 167). States changed to larger districts as their populations grew, towns multiplied, and their legislatures thus grew unwieldy.

101. I argue elsewhere that Madison's argument in Federalist 10 was not a harbinger of pluralist politics. I demonstrate how the idea of a heterogeneous constituency is central to his claims within the essay itself. Although this interpretation is hardly new, the pluralist reading of the essay remains persistently prominent in political science literature. Further, most authors who have argued for a “republican” reading of Madison's essay in Federalist 10 tend to support their reading by appeals to his broader political philosophy, thus treating the essay as indeterminate of the point. This is generally a fine interpretive move, but, as I argue elsewhere, I do not believe one has to cede the argument in the essay itself to see clearly the republican reading. Andrew Rehfeld, “James Madison’s Theory of Representation: The Electoral Dynamics of Federalist 10,” (Unpublished Paper, 2000).

102. According to Dinkin, for about half of the colonial period, elections to colonial legislatures were uncontested. When, in the early eighteenth century, they became more contested and then contentious, personal animosity was most often to blame. Although policy disputes were more frequent, they were made an issue for voters at elections until mid-century. Political leaders, “thought that their ends could best be achieved by using their persuasive powers over the other representatives during the legislative sessions rather than out on the stump” (Dinkin, Voting in Provincial America, 10). It seems likely that Madison wished to foster heterogeneity within the district as a way of reducing factionalism among voters, in addition to moderating party faction within the legislature. He was thus hearkening back to earlier colonial times, in keeping with his humbling experience of having lost an assembly seat to a tavern keeper for want of campaigning.

103. PJM, 9:355.

104. PJM, 10:33; and PJM, 10:213.

105. For the historiography, see, Douglass Adair, “That Politics May Be Reduced to a Science: David Hume, James Madison and the Tenth Federalist,” in Fame and the Founding Fathers, ed. Trevor Colbourn (Indianapolis: Liberty Fund, 1974), 144 n. 6; and David F. Epstein, The Political Theory of the Federalist (Chicago: University of Chicago Press, 1984), 206–7. As Epstein notes, Madison's letter to Washington, April 16, 1787, and to Lafayette, March 20, 1785 are also relevant, if not exactly a version of Federalist 10, which the other three clearly are. This list has received some attention, but scholars have tended to ignore the historical development of the particular paragraph concerning the sources of faction. Epstein is an exception, noting the development of the “opinions” that Madison cited through an analysis of these previous versions (ibid., 76, 210 n. 52). But he does not mention the presence or absence of “district” nor its role to diminish factions directly, even as he refers to “Madison's previous versions of the argument of Federalist 10” and provides a comparison of the four works in terms of religious opinion (ibid., 86). See also, ibid., 206 n. 2.

106. PJM, 9:355, emphasis added.

107. PJM, 10:33, emphasis added.

108. One reason that the present analysis is only be suggestive is that from this context it is impossible to know for certain that the “districts” Madison refers to are electoral districts, as compared to “regions” or “areas” more generally. In Madison's time, the term “district” was used in both senses. (For an example of the former see Federalist 56, of the latter see Federalist 41.) Two facts support the claim that Madison had electoral districts in mind. First, the term “district” drops out of the final argument even though Madison still worried that regional differences might constitute a source of faction in the national system. Second, state electoral districts, in Madison's view, had had a corrupting influence on state legislatures during the confederacy. The salient situation for Madison was the aftermath of Shay's rebellion.

109. PJM, 10:99.

110. Ibid.

111. PJM, 10:213, emphasis added.

112. The transformation of land into wealth of course echoes Locke's argument. John Locke, Second Treatise of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), chap. V, esp. paras. 27 and 32. For a detailed discussion of Locke's Chapter V and this section of Federalist 10, see Epstein, The Political Theory of the Federalist, 73.

113. George Washington's support of Nathaniel Gorham's last minute plea for such an increase broke Washington's silence at the convention and forced the smudging of the final document. Rakove 1996, Original Meanings, 228. Madison preferred an even smaller fraction, and thus an even smaller resulting legislature.

114. It is difficult to explain the causes of an event that occurred. It is much more difficult to explain some act of omission. Yet, the local district is the only source of faction explicitly mentioned in Madison's precursors to this essay that is not included in the final version. Madison paid a great deal of attention in writing his first contribution to what became The Federalist. So we ought at least to wonder why he left it out, even if the reasons I provide can only be suggestive. But also note that Madison saw slavery as the source of a particularly strong set of interests even as there is no explicit mention of it in these passages. See Madison's remarks in convention as recorded by him on June 30, 1787 (repr. in FC, Vol. 2, 1:2:3, no. 2, 98). The change in Madison's rhetoric may be similarly attributed to politics – remaining silent about the origins of factions in the local district, would be an effective strategy against anti-Federalist concerns. This seems unlikely because of direct attacks on the problems of state government throughout The Federalist.

115. The correct balance between being beholden to local interests and having local knowledge provides an important practical justification for territorial constituencies.

116. Madison, Federalist 10, 63.

117. Madison, Federalist 37, 237–38.

118. Madison, Federalist 46, 318, emphasis added.

119. By 1791, Madison supported a Pennsylvania law, “that every Citizen throughout the State shall vote for the whole number of members allotted to the State.” His support was tied to the quality of representative he expected would be elected, consistent with his arguments in convention and in The Federalist. “James Madison to Thomas Jefferson,” 1791, in FC, Vol. 2, 1:2:1, no. 17, 61. As a rationale, this is far more in keeping and supportive of the contemporary reform discussed in Section 1.2 above than the usual claims made of the founders.

120. Hamilton, Federalist 59–60, 397–410.

121. Hamilton was responding to the Anti-Federalist concern that such control over elections, in the words of Timothy Bloodworth of North Carolina, “may destroy representation entirely” (The Anti-Federalist, ed. Cecilia Kenyon [New York, NY: Bobbs- Merrill, 1966], lxv–lxvi).

122. This is a good time to remind the reader that what matters to this study is the empirical and normative claims of political philosophers and not the truth of these claims. This is not to deny that there is a truth of the matter – surely, Hamilton was either correct or mistaken that interests were randomly distributed among districts. An empirical study similar to Charles Beard's analysis would get at this issue. Nevertheless, the empirical information would be unimportant to the theoretical underpinnings of Hamilton’s argument unless it could be shown that Hamilton willfully misrepresented his opinion. If Hamilton (or other philosophers) purposely manipulated facts in this way, then strictly speaking, the objects of my analysis are only the arguments these individuals make, and not the writers themselves. Speculation about their intentions is an interesting and important aspect of intellectual history, but not part of this project. As far as I know, there is no reason to doubt Hamilton's intentions on this point. I am interested in the arguments and the assumptions on which they are based, regardless of the empirical veracity of those assumptions.

123. Hamilton, Federalist 60, 403–5.

124. Ibid., 405–6.

125. The tactic of showing that an objection to the proposed constitution was taken from State practice and more worrisome at the state level where the objections emanated was a regular form of argument in The Federalist. Rakove, Original Meanings, 1996.

126. Hamilton, Federalist 60, 406.

127. Ibid., 408.

128. Article 1, Section 2 states, “The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.”

129. Storing, 4.3.14, in FC, Vol. 2, 1:2:1, no. 11, 51.

130. Dinkin makes the reasonable argument that the Federalists originated as “Cosmopolitans” and the Anti-Federalists as “Localists” (Robert J. Dinkin, Voting in Revolutionary America: A Study of Elections in the Original Thirteen States 1776–1789 [Westport, CT: Greenwood Press, 1982], 8). For the Anti-Federalists’ concerns that a large republic would eviscerate local concerns and thus undermine the rights of individuals, see, Herbert Storing, What the Anti-Federalists Were for: The Political Thought of the Opponents of the Constitution (Chicago: University of Chicago Press, 1981).

131. Zagarri, The Politics of Size.

132. Zagarri's book is important because it takes seriously the philosophic claims of the participants about the nature of representation, rather than simply viewing their statements as manipulative rhetoric. However, she is less persuasive in the end. Consider Zagarri's claim that since geographically small states kept their capitals geographically centered, these states conceived of representation as representing places. By contrast, large states shifted their capitals to population centers as westward expansion developed. These two facts, she concludes, demonstrate that representation of people mattered more in these large states. The problem with her claim is that even if geographically small states valued representation of people over places, they would still not likely shift their capitals to the population centers when population moved. Why not? First, the marginal gain of such a move would be much smaller in small states than in large ones, precisely because they are small. The benefits being less it would not have been worth the costs. Using the same standard of value, the calculus for large states, by contrast, would tip in favor of moving. Second, without further data, it is impossible to know how close geographical and population centers were in the small states. Indeed, we should expect that ceteris paribus, population would be more evenly distributed in small rather than large states because of their lack of space. Thus we cannot use this central measure of Zagarri's argument as evidence for her claim. Zagarri, The Politics of Size, chap. 1. A similar problem attends to the differences in philosophical outlook she attributes to small and large states when constructing the first congressional districts (ibid., chap. 5). See also, Richard McCormick's review of Zagarri’s book, in which he finds her claims that the differences were not primarily based on political and economic self interest, “dubious,” and questions her presentation more broadly. Richard Mc- Cormick, “Reviews of Books,” William and Mary Quarterly XLV (1988): 811–12.

133. For other sources on the Great Compromise, see, Zagarri, Rosemarie, “Suffrage and Representation,” in The Blackwell Encyclopedia of the American Revolution, ed. Greene, Jack P. and Pole, J.R. (Oxford: Blackwell Publishers, 1994 Google Scholar); and Rakove, Original Meanings, chap. IV.

134. Even the most progressive suggestions about equal representation were territorially bounded. For example, David Brearly thought that states should have separate representation only if they were exactly equal: Is it fair then it will be asked that Georgia should have an equal vote with Virga.? He would not say it was. What remedy then? One only, that a map of the U.S. be spread out, that all the existing boundaries be erased, and that a new partition of the whole be made into 13 equal parts. (David Brearly, recorded in Madison notes, 1:176, June 9, 1787, in FC, Vol. 2, 1:2:3., no. 2, 91) The accounts by Yates (Volume One 1966 [1913], 181–82) and King (Records 1966 [1913], 183) concur in Brearly's proposal.

135. The term “proportional representation” during the Federal Convention denoted representation by equal population versus by state. It did not have the contemporary connotation of representation by party or proportional by votes in a legislature.

136. The nesting argument directly undermines the attachment justification for territorial representation as I will discuss in the next section. Here, it highlights the lack of connection between congressional district and local interests.

137. See, for example, George Mason's speech during the Virginia Ratifying Convention, June 4, 1788, Elliot 3:29–35, in FC, Vol. 2, 1:2:3, no. 18, 137.

138. “Diffuse” and “desultory” are Yates's commentary on Martin's speech. See Luther Martin, June 27, 1787, Yates's notes, Records 1966 (1913), 439.

139. Luther Martin, June 27, 1787, Yates's notes, Records 1966 (1913), 441.

140. See note above. Benjamin Franklin, June 11, 1787, in Madison's notes in FC, Vol. 2, 1:2:3, no. 2, 92–93. Madison notes that Franklin's opinion was delivered by Wilson, Franklin having “thrown his ideas of the matter on a paper” (ibid., 92).

141. Ibid., 93.

142. Ibid.

143. Ibid. Franklin's plan was to have the “weakest State say what proportion of money or force it is able and willing to furnish for the general purposes of the Union.” Other states would match that amount and each state would then retain equal voting rights in the legislature and have made an equal contribution to the government. In Madison's notes, it is immediately after Franklin's plan that representation by “some equitable ratio of representation” as proposed by King and Wilson, was agreed to, thus setting the way for proportional representation.

144. Oliver Elseworth (Ellsworth), July 10, 1787, as recorded by James Madison, in FC, Vol. 2, 1:2:3, no. 2, 102.

145. James Wilson, Pennsylvania Ratifying Convention, Nov. 30, 1787, from Elliot 2:442–43, in FC, Vol. 2, 1:2:3, no. 7, 116.

146. It is striking that in all the debate around the apportionment clause of the constitution (Art. 1, Sec. 2, Clause 3, which establishes that there shall be one representative for every 30,000 people), there is no argument that the ratio is too great because community representation would not be actuated. The tension was between individual and state representation. The local community – the origin of territorial representation – drops completely out of the debate.

147. Wilson Nicholas, Debate in Virginia Ratifying Convention, June 4, 1788, Elliot 3:11–14, in FC, Vol. 2, 1:2:3, no. 18, 136–37.

148. Ibid.

149. Hamilton, Federalist 17, 106. See also his comments in Federalist 16, “The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support, those passions, which have the strongest influence upon the human heart” (Hamilton Federalist 16, 103).

150. The nesting of political consent as a component of political representation is especially important in large nations and significantly undermines a normative basis for district line drawing done by third parties without a means for citizen consent.

151. William Samuel Johnson, June 29, 1787, Yates's notes, Records 1966 (1913), 470.

152. James Madison, June 29, 1787, Yates's notes, Records 1966 (1913), 471.

153. Johnson, June 29, 1787, King, Records 1966 (1913), 476– 77.

154. Madison's notes, May 31, 1787, Records 1966 (1913), 48–49.

155. The Cornelius Letter, in Samuel Bannister Harding, The Contest over the Ratification of the Federal Constitution in the State of Massachusetts (New York: Green and Co., 1896).

156. The Anti-Federalists, lv. See also, cix–cx. Kenyon's analysis centers on the fear of political organizing that the Anti-Federalists correctly believed would arise if large districts were created. Although important, especially as a logistical justification for territorially small districts, it nevertheless is a different issue than the interest justification.

157. The Anti-Federalists, lvi–lxi. See also Rakove, Original Meanings, 203–43.

158. Ibid., lxi.

159. Morris here is concerned with the election of local representatives, rather than the separable though related issue of organizing constituents on a local basis. See the discussion below on “local knowledge.” 160. George Mason, 11 July 1787, Madison's notes, in FC, Vol. 2, 1:2:3, no. 2, p. 103; Gouveneur Morris, 11 July 1787, Madison’s notes, in FC, Vol. 2, 1:2:3, no. 2, p. 104; James Madison, 11 July 1787, Madison's Notes, in FC, Vol. 2, 1:2:3, no. 2, p.

105.

161. This may be an oversimplification. The Anti-Federalists were committed to small local government, and were often suspicious that the federal system would place the interests of the community in the hands of a small elite. But it is less clear that territorially defined interests, as compared with the more important securing of individual liberty, motivated their concern. See The Anti-Federalists, and Storing, What the Anti-Federalists Were For, 15–23.

162. The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents, Dec. 18, 1787, Storing 3.11.34–37, in FC, Vol. 2, 1:2:3, no. 8, 117.

163. Luther Martin, Genuine Information 1788, in FC, Vol. 2, 1:2:3, no. 9, 119, emphasis in the original.

164. Ibid., 119, emphasis in the original.

165. Hume, Enquiry Concerning the Principles of Morals, ed. J.B. Schneewind (Indianapolis: Hackett, 1983).

166. See section 1.3.

167. Montesquieu, Spirit of the Laws, 1:8:16, 124.

168. Ibid., 2:9:1, 131.

169. Ibid., 2:9:3, 133.

170. Ibid., 2:11:6, 159. Note that Montesquieu's argument presupposes territorial districts that are coextensive with a defined community.

171. For example, see, his discussion of the Germanic peoples (ibid., 6:28:2, 535); the interplay of local customs and Roman law (ibid., 6:28:12, 547); and the use Charlemagne made of local loyalty when governing a vast empire (ibid., 6:31:19, 699).

172. Edmund Burke, Reflections on the Revolution in France, ed. J.G.A. Pocock (Indianapolis: Hackett, 1987), 41.

173. Ibid., 152.

174. Ibid., 162. Burke's comments on the geometrical formation of France's system were apparently erroneous. Pocock, in his notes to the text, writes, “All critics of Burke point out that this is incorrect; departments were not geometrically constructed” (ibid., 225 n. lxxxviii). Burke's theoretical points still hold for obvious reasons.

175. Ibid., 152.

176. Ibid., 162.

177. Ibid., 153.

178. Ibid., 173.

179. Tacitus, Annales 1.14, sect. 27, in Burke, Reflections, 161 n. 46, trans. J.G.A. Pocock, 225–26.

180. Wood, Creation, 228.

181. Wood, Creation, 288, quoting from A Public Defence of the Right of the New-Hampshire Grants … to Associate Together, and form Themselves into an Independent State (Dresden, VT., 1779), in Bouton et al., eds., State Papers of N.H., X, 312–13.

182. Benjamin Franklin, Boston Independent Chronicle, May 10, 1787, quoted in Wood, Creation, 432.

183. Concerning the strength of the New York constitution, and the argument that it should have served as a “standard for the United States,” Hamilton wrote, “I answer that it is not very probable the other states should entertain the same opinion of our institutions which we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference” (Hamilton Federalist 83, 571). Even more explicit arguments follow in the text.

184. “ Virtue, placed at such a distance, is like a fixed star, which though to the eye of reason, it may appear as luminous as the sun in his meridian, is so infinitely removed, as to affect the senses, neither with light nor heat. Being this virtue nearer, by our acquaintance or connexion with the persons, or even by an eloquent recital of the case; our hearts are immediately caught, our sympathy enlivened, and our cool approbation converted into the warmest sentiments of friendship and regard.” (David Hume, Enquiry Concerning the Principles of Morals, Sec. V, 50) Hume also praises Harrington's Oceana for its nested system of government, though not explicitly for the attachment this nesting expected to accrue to its head. See David Hume, “Idea of a Perfect Commonwealth,” in David Hume, Essays: Moral Political and Literary, ed. Eugene F. Miller (Indianapolis: Liberty Fund, 1987), 512–29. Hume ultimately endorses nesting in government for both the attachment it engenders and the hesitation it builds into the actions of government. See Hume, “Of Some Remarkable Customs,” in David Hume, Essays, 366–76. Also see, Epstein's treatment of Hume and Madison in Epstein The Political Theory of the Federalist, 101–2.

185. Diamond, “The Federalist,” 663–64. In his discussion of Federalist 14, Diamond rightly emphasizes the fallacious reasoning that the states formed a small republic in any meaningful way. The American states, “were not small republics as that term had been traditionally understood; they were already extensive republics” (667). As I mentioned above, even Rhode Island was too large to be considered a small republic.

186. Hamilton, Federalist 17, 107.

187. “Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt, that the first and most natural attachment of the people will be to the governments of their respective States” (Madison, Federalist 46, 316).

188. Ibid., 321–22.

189. Hamilton, Federalist 59, 402.

190. Madison, Federalist 41, 273.

191. Madison, Federalist 46, 317.

192. Madison, Federalist 63, 422.

193. See also Jay, Federalist 2, 12, in which Jay argues that the people's “universal and uniform attachment to the cause of the Union, rests on great and weighty reasons.” His support of the Union (versus various confederations) continues in Jay, Federalist 5, 23–27.

194. Hamilton, Federalist 27, 173–74.

195. Madison, Federalist 57, 388.

196. Madison, Federalist 63, 431.

197. Gordon Wood argues that social nesting was part of The Federalist: For as Hamilton's social analysis in The Federalist, Number 35, suggested, what justified elite rule, together with the notion of virtual representation and the idea of the homogeneity and unity of the people’s interest, was the sense that all parts of the society were of a piece, that all ranks and degrees were organically connected through a great chain in such a way that those on the top were necessarily involved in the welfare of those below them. (Wood, Creation, 498) This seems right to me, though it obviously contributes nothing to a justification for territorial representation.

198. Reid, The Concept of Representation in the Age of the American Revolution, 83.