Editor’s Note: From time to time, Bearing Drift will publish essays designed to raise important questions about how Virginia governs herself. These long-form essays are more in-depth and lengthier than typical articles published on the site.
In 1776, Virginia’s newly adopted Constitution created the Virginia General Assembly and dissolved the House of Burgesses, effectively ending over two centuries of ties to the British crown. The new Constitution provided one Delegate in the House of Delegates for every 3,353 residents, and one Senator for every 19,280 residents.
Today, a member of the House of Delegates represents over 80,000 residents, and a member of the Virginia Senate represents over 200,000. These numbers represent the largest ratio of elected representatives to residents in the history of the Commonwealth. For most of Virginia’s history, from Jamestown to today, the ratio was far smaller. Given this history and our shared ideals of republican democracy and accessibility, is it time to increase the size of our General Assembly? Is today’s General Assembly too small?
This essay will argue the answer to both questions is yes.
Walking Through History – Parliament’s Impact on American Legislatures
The size of a legislature has a significant impact on both politics and policy, but size also means more than simply how easy or difficult lawmaking will be, or how many citizens may partake in government. Legislature size and composition has long represented the ideals and beliefs about self-governance the people it represents hold and cherish. As James Madison noted in Federalist 51, “[i]n republican government, the legislative authority necessarily predominates,” thus how a legislature is composed, what interests it represents, and its role as a reflection of the people themselves is critical. A small legislature made up solely of landed elites would send a far different signal as to the priorities of a people than a large legislature made up of common men (and later women).
Parliament, the model for colonial assemblies, demonstrated this philosophy through its long and slow descent into dysfunction over the period between 1660 and the 1830s. Mired in tradition, with no pay and without a real reapportionment from its restoration after the revolutionary period until the middle 19th century, Parliament was dominated by the landed gentry and petty nobility. Ratios of governed to elected fluctuated wildly, with some burroughs having tens of the thousands of electors, while others had fewer than a dozen. Those boroughs, referred to as “pocket” or “rotten” boroughs, were up for grabs to whomever could pay off the electors to support them at election time. One of the most notorious was Gatton, a constituency in Surrey, just southwest of London, which had a total of 7 qualified voters, yet sent two men to Parliament. In 1830, one of those seats was reportedly sold for £180,000, the equivalent of almost half a billion dollars – yes, billion with a B – today. Another, Winchelsea, had a total of 11 qualified voters. There was no residency qualification for election to Parliament either (which remains to this day), which meant that some, if not most, members could be elected and serve without ever having set foot in the area of territory they were supposedly representing. While Parliament was large – the Commons boasted 558 seats in 1776 – it was by no means representative of the people of Great Britain.
As the colonies began throwing off the yoke of imperial British rule, they began reforming their own legislatures and colonial assemblies. A wide variety of sizes and compositions resulted, from Delaware’s tiny legislature composed of 21 legislators as noted by James Madison in Federalist 55, to the Massachusetts General Court’s House of Representatives, which numbered 749 at its largest in 1812 (including over 200 legislators from what became Maine). The goal, however, was the same – to provide for a legislature that reflected the people, and gave a wide cross-section of citizens (albeit, propertied white men for the most part) the ability to participate in government in a meaningful way.
The Creation and Right-Sizing of Congress – The “People’s House”
Legislature size was always a difficult subject, as Madison noted in Federalist 55, saying “[i]n general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature[.]” Madison knew of what he was speaking, as he was front and center during the debate over the size of the federal Congress during the Constitutional Convention.
From a federal perspective, there were few issues as fraught with political and sectional conflict than how to determine the size and apportionment of the legislative branch. Beyond the large state versus small state arguments that culminated in the bicameral compromise that resulted in the federal Congress, the debate over the size of the lower House was heated and contentious. So potent and contentious was the issue, the size of the House of Representatives became one of the most effective arguments Anti-Federalists wielded against the Constitution during the ratification debates. Numbering only 65, Anti-Federalists complained it was too small to be a truly representative “people’s house,” and its small size would result in the creation of an elite body that would quickly fall out-of-touch with its constituents. James Madison wrote four letters in the Federalist Papers, #55-58, addressing the size of the House in the new Constitution – only taxation, as a discreet issue, got more ink from Madison, Jay and Hamilton.
The pressure to increase the size of the House was based on a number of philosophies held by the founding generation, and many of these philosophies have been passed down to us. Those include the idea that elected representatives should be capable of knowing their constituents, that a larger body defuses power and makes it harder for a body to be bribed and corrupted, and that a larger number of representatives give more citizens the opportunity to serve. The Maryland constitution in 1776, for example, openly stated that it was a foundational to free government that the right of the people to participate in the legislature be preserved and protected.
The pressure for a large lower House in Congress was so great that the final draft of the Constitution saw a last minute change, advanced by George Washington, to lower the maximum number of citizens per every house member from 40,000 to 30,000. It was such a last minute change, it was written over in the final copy of the Constitution – you can still see where Jacob Shallus altered it. During the ratification debates, most states made clear during their conventions that the size of the House of Representatives was insufficient and needed to rise dramatically. Virginia’s own ratification instrument included suggested amendments to the body of the document. Listed second, behind the idea that all powers not granted to the federal government be reserved to the states (which would be codified in the 10th Amendment), was a provision regarding the size of the federal House. Virginia’s Delegates recommended that the first Congress pass an amendment ensuring “that there shall be one representative for every thirty thousand, according to the Enumeration or Census mentioned in the Constitution, until the whole number of representatives amounts to two hundred; after which that number shall be continued or encreased as the Congress shall direct, upon the principles fixed by the Constitution by apportioning the Representatives of each State to some greater number of people from time to time as population encreases[.]”
In response to the demands for a significantly enlarged House of Representatives, Federalists argued that after that the first enumeration following the first census in 1790, the size of the House was virtually guaranteed to rise from 65 to over 100. They were correct, and the House of Representatives continued to increase in size as the Union grew, from 65 in 1789 to 103 by 1793, and finally hitting Virginia’s desired 200 in 1821. It reached its current size of 435 in 1913 (except for brief periods following the addition of Alaska and Hawaii to the Union that increased the House briefly before reverting back to 435 in 1963).
Colonial Legislature Size – A Cause of Action Against British Tyranny
While Colonial assemblies existed in most states, by the time Americans began chafing under the control of a distant potentate, their size was generally fixed. Larger colonial assemblies were viewed by the British Crown as potential hotbeds for sedition. American agitation for increased opportunities to represent themselves percolated through the period following the end of the Seven Years’ War.
This led to the King finally putting his foot down and prohibiting any increase in the size of colonial assemblies. In 1767, George III ordered all colonial Governors to exercise their absolute veto power on any legislation to increase the sizes of colonial assemblies (as well as fixing their meeting times and terms of office), thus bringing the issue to a head. The King’s prohibition on increasing assembly size became yet another example to the colonists of pernicious British rule. It was directly mentioned in the Declaration of Independence as one of the enumerated tyrannies of the Crown. Jefferson accused George III of “refus[ing] to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.”
Virginia’s legislature began small, but continued growing for its entire existence prior to independence. Virginia’s House of Burgesses was the first legislative assembly in the new world, being founded in 1619. It began with 22 elected representatives of the counties within the Virginia colony. By its last full session in 1774, before the 1776 Constitution abolished it and replaced it with the General Assembly, the House boasted 122 members. These members were apportioned based on county or city, with each county sending two Burgesses to Williamsburg. Among the famous names populating the body included George Washington (Fairfax), Thomas Jefferson (Albemarle), Patrick Henry (Hanover), and Richard Henry Lee (Westmoreland). The House of Burgesses faded away in 1775, with too few members left to conduct business, and it was soon supplanted.
The 1776 Virginia Constitution
Virginia’s new Constitution in 1776 did not innovate on the Burgesses system of apportionment. Membership in the House of Delegates was by county, regardless of population size, and as new counties were added and new cities formed, the Assembly created new Delegate seats to represent those areas. The Senate was by district, limited to 24, with specific counties lumped into districts and divided into four classes which were spaced out to help ensure the full Senate was never all up for reelection at the same time. Thus, the original size of the House of Delegates fluctuated as new counties were added, and the Constitution also gave the General Assembly the power to add Delegates for new cities incorporated over time.
At the beginning of the General Assembly, under the 1776 Virginia Constitution, the House of Delegates numbered around 138 members. The roll for 1776 lists the names of 130 members. The total population represented by these members was widely different as was the size of their legislative districts, which were based on counties – two Delegates per county or city. The Constitution specifically granted Norfolk and Williamsburg one Delegate a piece. The Senate was limited to 24 members, divided by specific districts as outlined in the Constitution. The Constitution also provided that in the event that city size dropped by a certain amount for a seven year period, a city would lose its seat in the House of Delegates.
Population estimates prior to the founding put Virginia’s total population, both free and slave, at somewhere slightly higher than 450,000, given that Kentucky was still considered part of Virginia and was represented in the General Assembly. Using the population data found here, we can roughly determine that in 1770, there were 462,716 residents in Virginia and with 138 members of the House of Delegates, each Delegate represented 3,353 residents. Each member of the Senate represented 19,280 residents.
Both the population of Virginia and the size of the General Assembly continued to rise throughout the first half century after the founding. Thanks to the federal Constitution mandating decennial census taking, we have good population numbers beginning in 1790. The 1790 census found 821,228 Virginians (in all territory considered Virginia – Eastern and Western Virginia, as well as Kentucky). The 1800 roll listed 184 Delegates in the House of Delegates, making the House’s ratio remain relatively low, at 1 Delegate for every 4,463 residents.
At its peak in 1828, the House of Delegates boasted 236 members, representing a population of around 1.2 million. That meant a ratio of 1 Delegate for every 5,517 residents and 1 Senator for every 34,218 residents.
The 1830, 1851, Civil War and Reconstruction Virginia Constitutions
Virginia’s new Constitution in 1830 changed the apportionment scheme for the General Assembly, mandating a total of 134 Delegates and increasing the size of the Senate to 32. The change nearly doubled the number of constituents for each Delegate, increasing the ratio up to 1 Delegate for every 9,112 residents. The Senate stayed relatively the same, increasing slightly to 1 Senator for every 38,155 residents, based on the higher 1830 census population of 1,220,978.
Two decades later, the 1851 Constitution again changed the make up of the General Assembly, increases the House of Delegates to 152, and increasing the size of the Senate to its historical largest size of 50 Senators. The 1860 census listed 1,596,318 Virginians, which gave us a ratio of Delegates to residents of 1 to 10,502 for the House of Delegates and 1 Senator for every 31,926 residents.
Near the end of the Civil War, Virginia rewrote her Constitution yet again, although the validity of this document – which was never presented to the voters – is questioned. In 1864 the apportionment scheme was changed to recognize the loss of Western Virginia to the Union, and the size of the General Assembly was altered to fit the downsized Commonwealth. The 1864 Constitution created a maximum sized House of Delegates at 104, with the Senate maximum to be no more than 1/3 the size of the House – which would be 34 Senators if the House was at its fully authorized size. The smaller Virginia boasted just 1.2 million Virginians – close to the same size it was in 1830 with Western Virginia still included – which left a ratio of 1 Delegate to ever 11,727 residents. The Senate ratio rose slightly to 1 Senator for every 34,847 residents. Clearly, the Civil War had a massive negative impact on Virginia’s population, negating over 30 years of population gain through loss of life and territory.
As required by the federal government as a condition on reentering the Union, Virginia rewrote her Constitution yet again in 1870. Noticeable changes included extending the franchise to former slaves as required by the 13th amendment, and additions to the 1776 Bill of Rights stating all Virginians were Americans, Virginia would remain in the Union and that the Union was indivisible. It also altered again the size of the General Assembly, creating a total of 136 Delegates and 40 Senators – the last time the size of the Senate changed. The population of the Commonwealth remained steady at around 1.2 million as a result of the catastrophe of the war, and the ratios of representatives to constituent dropped noticeably, with 1 Delegate to every 9,008 residents and 1 Senator to every 30,629 residents. The Delegate ratio dropped to its lowest since first reformation of the House of Delegates in 1830, and the Senate ratio dropped to its lowest since the decades after independence.
The 1902 Virginia Constitution – A Shameful Codification of Jim Crow
Thirty years later, Virginia met again to redraw her Constitution. Unlike past Constitutions, which were often the result of unrest in the citizenry demanding greater rights and representation, the opposite happened in 1901. The result of the 1901 Constitutional convention, the 1902 Constitution, was one of the worst and most anti-liberty documents produced in Virginia’s history.
The right to vote was severely restricted, with poll taxes, a civics test, and other schemes that effectively removed the franchise from poor whites, most blacks and effectively anybody who the Democratic machine chose to bar. The 1902 Constitution was Virginia’s codification of Jim Crow, and the result was a massive reduction in the voting populace. In 1900, 264,208 voters cast their ballots in the presidential election in Virginia, despite the fact that the 1900 census indicated over 1.95 million residents. In 1904, after the 1902 Constitution had been ratified and put into effect, less than half the 1900 number voted – 130,410 total votes cast. Despite being elected in a landslide, Theodore Roosevelt lost Virginia 61% to 36%, while going on to win the national popular vote 56% to 34% and the Electoral College by a 336 to 140 victory.
The 1902 Jim Crow Constitution also marked a massive increase in the number of residents for each Delegate and Senator. The House was set at its modern maximum of 100 Delegates and the Senate remained at 40. Given the population of 1.95 million, this ballooned the General Assembly ratios to 1 Delegate for every 19,548 residents – nearly double that of 1870 – and 1 Senator for every 48,870 residents. The 1902 Constitution was also the first Constitution that did not specify voting districts in the document itself, instead allowing the General Assembly to draw its own districts, an innovation that took control over the location of electoral districts out of the hands of the people (who generally had to ratify the state Constitutions and did so in 1776, 1830, 1851 and 1971) and placed it in the hands of those who had the most to lose or gain by changes in the electoral map.
It is not surprising that the 1902 Constitution was never submitted to the voters, few of whom would have been likely to ratify a document that took away their right to vote. It remains a stain on Virginia’s history to this day.
Comparing Virginia’s Modern Legislature With Neighboring States
Virginia’s modern Constitution, as adopted in 1971, kept the 1902 Jim Crow General Assembly’s size of between 90-100 Delegates and 33-40 Senators. But as our population has ballooned, the ratios only keep getting larger and larger. As noted in the opening, today’s Delegate represents a district with at least 80,000 residents and a Senator’s district includes over 200,000 residents.
Is that a good thing? Do we have too few legislators given our size, both population and geography?
Sizes of Modern State Legislatures
Comparing similar states to Virginia in both size and population, it appears that our General Assembly is on the small side.
Virginia is the 12th most populous state, and 35th in physical size. Georgia is the 9th most populous state, with over 1 million more residents than Virginia, and 25th in physical size. Georgia’s lower house has 180 members, and their State Senate has 56. Texas, one of the largest and most populous states, has a lower house of 150, but only 31 Senators. Other states near Virginia’s size in population like New Jersey (11th), have slightly smaller legislatures than ours (80 Assemblymen and 40 Senators), but New Jersey also has far denser districts given the small geographic size of the state (46th in size). Both our neighbors to the north and south have larger legislatures than ours. Maryland has a House of Delegates with 141 members and a Senate of 47. North Carolina has a House of Representatives with 120 members, and Senate of 50.
Status and Compensation of Legislators
It is also important to note that Virginia’s emphasis on citizen legislators and the limited time of our General Assembly sessions puts significant pressure on our elected officials, which many of their colleagues in other states do not have to face. Maryland, Pennsylvania and North Carolina, for instance, have arguably full time legislatures and do not limit the length of the legislative sessions at all. Pennsylvania has one of the largest of state legislatures with 203 members of their lower House and 50 members of their upper House.
While pay in Virginia is similar to that in Georgia and North Carolina, pay in Maryland triples and Pennsylvania quadruples the pay of Virginia legislators.
Thus, in Virginia, you have citizen legislators representing very large districts, in a General Assembly that pays less and has fewer members than many of our counterparts.
An Argument for Expanding the General Assembly
The legislative power in Virginia rests with the General Assembly – a General Assembly that remains at the same size as it was in 1902, when it was reformed as part of a systematic attempt to use the color of state law to discriminate against whole swaths of the population. Over one hundred years later, and despite the fact that the population of Virginia has quadrupled, the size of the General Assembly remains exactly the same.
Does this make sense?
No, it does not. For a variety of reasons, both ideological and practical, it is high time we start looking at increasing the size of Virginia’s legislature. A good start would be increasing both the House and Senate by 50% – raising the number of Delegates to 150, and the number of Senators to 60. This would put us closer to our market basket competition in terms of both houses. While it would be beneficial to increase the Senate even more, no state legislature has an upper house with more than 70 legislators. Given Virginia’s largely traditional mindset and tendency towards fiscal restraint, it is unlikely that legislators or voters would be willing to increase the Assembly to make either house the largest in the nation.
Supporting Expansion of the General Assembly
From an ideological perspective, as the framers made clear, it is important for any legislature to reflect the people that it is designed to represent, and be sufficiently numerous that it does not turn into an out-of-touch body filled with elites. While it is clear that Virginia’s General Assembly is not such a body, the current size – 100 and 40 out of over 8 million – should give us pause about the potential for future General Assemblies to lose touch with the governed. Some, mainly Democrats, would argue that is already the case now, given the popularity of, for instance, Medicaid expansion, yet the failure of the General Assembly to move in that direction. Increasing the size of the legislature would reduce the size of districts, both in terms of population and likely in terms of geography, and provide a more diverse (not merely in demographics but also in political ideology) group of legislators.
From a purely democratic perspective, reducing the number of residents to each elected official could help make the General Assembly more accessible and help provide greater opportunities for citizens to serve in their legislature. Right now, Delegate slots are rarely successfully contested, with fewer than a handful of truly competitive races in each district. This is not solely because of gerrymandering (although that plays a considerable role), it is also because of the time, money and effort needed to campaign every two years in a district with over 80,000 residents and where incumbency is a decided advantage. Even though fewer than half of those residents tend to vote in General Assembly elections, they are all constituents who must be represented. Reducing the ratios to get them back to what have historically been acceptable ratios throughout Virginia’s history makes good sense and would open up the General Assembly to more people.
The framers were also concerned with the potential for small bodies to be more susceptible to bribery and corruption than larger ones. Increasing the size of the legislature makes it all the more difficult for a future Jonnie Williams to buy the favor of enough Delegates and Senators to get legislation he desires enacted.
Reducing ratios to something closer to 1:40,000 or 1:50,000 for Delegates and 1:150,000 for Senators would provide not only more citizens the opportunity to serve, it would also help decrease the geographical size in some areas, particularly rural ones – finding 50,000 residents is easier than finding 80,000, especially in the southwest and southside areas of Virginia. A 150 person House of Delegates and 60 person Senate would bring the ratio down to 1 Delegate for every 53,000 voters, and 1 Senator for every 133,000 voters.
Anticipated Arguments Against Expansion of the General Assembly
Arguments against the expansion are obvious – this is how we have done things since 1902, and there’s little public clamor for change. Legislative inertia being one of the most powerful forces on Earth, this argument alone probably dooms any reform efforts from the start. As noted above, however, it makes little sense for us to maintain a legislative size that was original developed solely as part of the Jim Crow era’s successfully restricting of voting rights and representation to white Democrats.
Another argument against would likely be the claim that this change would benefit urban and high density localities at the expense of rural districts. This should not be an issue, however. The large population centers would not receive a larger proportion of Delegates because their districts are already population based, and reducing the population cap would not provide them with greater proportional representation than they would already receive.
Another obvious argument would be the impact on the partisan makeup of the house, but that argument would be based largely on conjecture. Even with an expanded General Assembly, district maps would still be drawn by the legislature, which means partisans would still have significant opportunities to draw maps that benefit their political party. Regardless of what the partisan shift would be, in a situation like this, where fundamental American philosophies like representation and democracy are implicated, the partisan impact should be less important than other, more fundamental, issues. At the same time, knowing that a legislature has to approve a Constitutional amendment twice prior to it being placed before the people, we cannot wholly ignore partisanship.
Cost, of course, is an additional issue. Given the limited cost of adding additional representation given the low salaries already afforded Virginia legislators, the increase in accountability and access from the citizenry should easily make up the difference in the additional cost necessary to expand the General Assembly. The largest immediate cost would be in the need for a new General Assembly building large enough to handle the increased number of offices needed. Given the multiple proposals to replace the existing General Assembly Building in Richmond, this is a cost that is likely going to be borne by the taxpayers anyway – at least in this situation, the expansion gives them something more by providing more space for more representation.
The Legislature of the 21st Century
Virginia has long been the cradle of American democracy. Five of the most important American founders and statesmen – Washington, Henry, Jefferson, Madison, and Marshall – hailed from Virginia. Our history has been one that has witnessed our willingness to innovate and create, whether it was the creation of the first statute of religious freedom, or the principle drafting of the Declaration of Independence and the Constitution, all of which flowed from the minds and hands of Virginians. Our General Assembly should reflect that heritage, and in these modern times, where the people are clamoring like never before for leadership and a voice in government, we could demonstrate our renewed commitment to the ideals of republican democracy, liberty and citizen government by expanding the size of Virginia’s legislature.
It is long overdue.
