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Article 1, Section 2, Clause 3



Document 22

Joseph Story, Commentaries on the Constitution 2:§§ 630--35, 641--47, 673--80

1833

§ 630. . . . It is obvious, that the question, how the apportionment should be made, was one, upon which a considerable diversity of judgment might, and probably would, exist. Three leading principles of apportionment would, at once, present themselves. One was to adopt the rule already existing, under the confederation; that is, an equality of representation and vote by each state, thus giving each state a right to send not less than two, nor more than seven representatives, and in the determination of questions, each state to have one vote. This would naturally receive encouragement from all those, who were attached to the confederation, and preferred a mere league of states, to a government in any degree national. And accordingly it formed, as it should seem, the basis of what was called the New-Jersey Plan. This rule of apportionment met, however, with a decided opposition, and was negatived in the convention at an early period, seven states voting against it, three being in its favour, and one being divided.

§ 631. Another principle might be, to apportion the representation of the states according to the relative property of each, thus making property the basis of representation. This might commend itself to some persons, because it would introduce a salutary check into the legislature in regard to taxation, by securing, in some measure, an equalization of the public burthens, by the voice of those, who were called to give most towards the common contributions. That taxation ought to go hand in hand with representation, had been a favourite theory of the American people. Under the confederation, all the common expenses were required to be borne by the states in proportion to the value of the land within each state. But it has been already seen, that this mode of contribution was extremely difficult and embarrassing, and unsatisfactory in practice, under the confederation. There do not, indeed, seem to be any traces in the proceedings of the convention, that this scheme had an exclusive influence with any persons in that body. It mixed itself up with other considerations, without acquiring any decisive preponderance. In the first place, it was easy to provide a remedial check upon undue direct taxation, the only species, of which there could be the slightest danger of unequal and oppressive levies. And it will be seen, that this was sufficiently provided for, by declaring, that representatives and direct taxes should be apportioned by the same ratio.

§ 632. In the next place, although property may not be directly aimed at, as a basis in the representation, provided for by the constitution, it cannot, on the other hand, be deemed to be totally excluded, as will presently be seen. In the next place, it is not admitted, that property alone can, in a free government, safely be relied on, as the sole basis of representation. It may be true, and probably is, that in the ordinary course of affairs, it is not the interest, or policy of those, who possess property, to oppress those, who want it. But, in every well-ordered commonwealth, persons, as well as property, should possess a just share of influence. The liberties of the people are too dear, and too sacred to be entrusted to any persons, who may not, at all times, have a common sympathy and common interest with the people in the preservation of their public rights, privileges, and liberties. Checks and balances, if not indispensable to, are at least a great conservative in, the operations of all free governments. And, perhaps, upon mere abstract theory, it cannot be justly affirmed, that either persons or property, numbers or wealth, can safely be trusted, as the final repositaries of the delegated powers of government. By apportioning influence among each, vigilance, caution, and mutual checks are naturally introduced, and perpetuated.

§ 633. The third and remaining principle was, to apportion the representatives among the states according to their relative numbers. This had the recommendation of great simplicity and uniformity in its operation, of being generally acceptable to the people, and of being less liable to fraud and evasion, than any other, which could be devised. Besides; although wealth and property cannot be affirmed to be in different states, exactly in proportion to the numbers; they are not so widely separated from it, as, at a hasty glance, might be imagined. There is, if not a natural, at least a very common connexion between them; and, perhaps, an apportionment of taxes according to numbers is as equitable a rule for contributions according to relative wealth, as any, which can be practically obtained.

§634. The scheme, therefore, under all the circumstances, of making numbers the basis of the representation of the Union, seems to have obtained more general favour, than any other in the convention, because it had a natural and universal connexion with the rights and liberties of the whole people.

§ 635. But here a difficulty of a very serious nature arose. There were other persons in several of the states, than those, who were free. There were some persons, who were bound to service for a term of years; though these were so few, that they would scarcely vary the result of the general rule, in any important degree. There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states. It was necessary, therefore, to provide for these cases, though they were attended with no practical difficulty. There seems not to have been any objection in including, in the ratio of representation, persons bound to service for a term of years, and in excluding Indians not taxed. The real (and it was a very exciting) controversy was in regard to slaves, whether they should be included in the enumeration, or not. On the one hand, it was contended, that slaves were treated in the states, which tolerated slavery, as property, and not as persons. They were bought and sold, devised and transferred, like any other property. They had no civil rights, or political privileges. They had no will of their own; but were bound to absolute obedience to their masters. There was, then, no more reason for including them in the census of persons, than there would be for including any brute animals whatsoever. If they were to be represented as property, the rule should be extended, so as to embrace all other property. It would be a gross inequality to allow representation for slaves to the southern states; for that, in effect, would be, to allow to their masters a predominant right, founded on mere property. Thus, five thousand free persons, in a slave-state, might possess the same power to choose a representative, as thirty thousand free persons in a non-slave-holding state.

. . . . .

§ 641. The truth is, that the arrangement adopted by the constitution was a matter of compromise and concession, confessedly unequal in its operation, but a necessary sacrifice to that spirit of conciliation, which was indispensable to the union of states having a great diversity of interests, and physical condition, and political institutions. It was agreed, that slaves should be represented, under the mild appellation of "other persons," not as free persons, but only in the proportion of three fifths. The clause was in substance borrowed from the resolve, passed by the continental congress on the 18th of April, 1783, recommending the states to amend the articles of confederation in such manner, that the national expenses should be defrayed out of a common treasury, "which shall be supplied by the several states, in proportion to the whole number of white, or other free inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons, not comprehended in the foregoing description, except Indians, not paying taxes, in each state." In order to reconcile the non-slave-holding states to this provision, another clause was inserted, that direct taxes should be apportioned in the same manner as representatives. So, that, theoretically, representation and taxation might go pari passu. This provision, however, is more specious than solid; for while, in the levy of direct taxes, it apportions them on three fifths of persons not free, it, on the other hand, really exempts the other two fifths from being taxed at all, as property. Whereas, if direct taxes had been apportioned, as upon principle they ought to be, according to the real value of property within the state, the whole of the slaves would have been taxable, as property. But a far more striking inequality has been disclosed by the practical operations of the government. The principle of representation is constant, and uniform; the levy of direct taxes is occasional, and rare. In the course of forty years, no more than three direct taxes have been levied; and those only under very extraordinary and pressing circumstances. The ordinary expenditures of the government are, and always have been, derived from other sources. Imposts upon foreign importations have supplied, and will generally supply, all the common wants; and if these should not furnish an adequate revenue, excises are next resorted to, as the surest and most convenient mode of taxation. Direct taxes constitute the last resort; and (as might have been foreseen) would never be laid, until other resources had failed.

§ 642. Viewed in its proper light, as a real compromise, in a case of conflicting interests, for the common good, the provision is entitled to great praise for its moderation, its aim at practical utility, and its tendency to satisfy the people, that the Union, framed by all, ought to be dear to all, by the privileges it confers, as well as the blessings it secures. It had a material influence in reconciling the southern states to other provisions in the constitution, and especially to the power of making commercial regulations by a mere majority, which was thought peculiarly to favour the northern states. It has sometimes been complained of, as a grievance; but he, who wishes well to his country, will adhere steadily to it, as a fundamental policy, which extinguishes some of the most mischievous sources of all political divisions,--those founded on geographical positions, and domestic institutions. It did not, however, pass the convention without objection. Upon its first introduction, it was supported by the votes of nine states against two. In subsequent stages of the discussion, it met with some opposition; and in some of the state conventions it was strenuously resisted. The wish of every patriot ought now to be, requiescat in pace.

§ 643. Another part of the clause regards the periods, at which the enumeration or census of the inhabitants of the United States shall be taken, in order to provide for new apportionments of representatives, according to the relative increase of the population of the states. Various propositions for this purpose were laid, at different times, before the convention. It was proposed to have the census taken once in fifteen years, and in twenty years; but the vote finally prevailed in favour of ten. The importance of this provision for a decennial census can scarcely be overvalued. It is the only effectual means, by which the relative power of the several states could be justly represented. If the system first established had been unalterable, very gross inequalities would soon have taken place among the states, from the very unequal increase of their population. The representation would soon have exhibited a system very analogous to that of the house of commons in Great-Britain, where old and decayed boroughs send representatives, not only wholly disproportionate to their importance; but in some cases, with scarcely a single inhabitant, they match the representatives of the most populous counties.

§ 644. In regard to the United States, the slightest examination of the apportionment made under the first three censuses will demonstrate this conclusion in a very striking manner. The representation of Delaware remains, as it was at the first apportionment; those of New-Hampshire, Rhode-Island, Connecticut, New-Jersey, and Maryland have had but a small comparative increase; whilst that of Massachusetts (including Maine) has swelled from eight to twenty; that of New-York, from six to thirty-four; and that of Pennsylvania, from eight to twenty-six. In the mean time, the new states have sprung into being; and Ohio, which in 1803 was only entitled to one, now counts fourteen representatives. The census of 1831 exhibits still more striking results. In 1790, the whole population of the United States was about three millions nine hundred and twenty-nine thousand; and in 1830, it was about twelve millions eight hundred and fifty-six thousand. Ohio, at this very moment, contains at least one million, and New-York two millions of inhabitants. These facts show the wisdom of the provision for a decennial apportionment; and, indeed, it would otherwise have happened, that the system, however sound at the beginning, would by this time have been productive of gross abuses, and probably have engendered feuds and discontents, of themselves sufficient to have occasioned a dissolution of the Union. We probably owe this provision to those in the convention, who were in favour of a national government, in preference to a mere confederation of states.

§ 645. The next part of the clause relates to the total number of the house of representatives. It declares, that "the number of representatives shall not exceed one for every thirty thousand." This was a subject of great interest; and it has been asserted, that scarcely any article of the whole constitution seems to be rendered more worthy of attention by the weight of character, and the apparent force of argument, with which it was originally assailed. The number fixed by the constitution to constitute the body, in the first instance, and until a census was taken, was sixty-five.

§ 646. Several objections were urged against the provision. First, that so small a number of representatives would be an unsafe depositary of the public interests. Secondly, that they would not possess a proper knowledge of the local circumstances of their numerous constituents. Thirdly, that they would be taken from that class of citizens, which would sympathize least with the feelings of the people, and be most likely to aim at a permanent elevation of the few, on the depression of the many. Fourthly, that defective, as the number in the first instance would be, it would be more and more disproportionate by the increase of the population, and the obstacles, which would prevent a correspondent increase of the representatives.

§ 647. Time and experience have demonstrated the fallacy of some, and greatly impaired, if they have not utterly destroyed, the force of all of these objections. The fears, which were at that period so studiously cherished; the alarms, which were so forcibly spread; the dangers to liberty, which were so strangely exaggerated; and the predominance of aristocratical and exclusive power, which were so confidently predicted, have all vanished into air, into thin air. Truth has silently dissolved the phantoms raised by imaginations, heated by prejudice or controversy; and at the distance of forty years we look back with astonishment at the laborious reasoning, which was employed to tranquillize the doubts, and assuage the jealousies of the people.

. . . . .

§ 673. As a fit conclusion of this part of the subject it may be remarked, that congress, at its first session in 1789, in pursuance of a desire expressed by several of the state conventions, in favour of further declaratory and restrictive amendments to the constitution, proposed twelve additional articles. The first was on the very subject now under consideration, and was expressed in the following terms: "After the first enumeration required by the first article of the constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred; after which the proportion shall be so regulated by congress, that there shall not be less than one hundred representatives, nor less than one for every forty thousand persons, until the number of representatives shall amount to two hundred; after which, the proportion shall be so regulated by congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand." This amendment was never ratified by a competent number of the states to be incorporated into the constitution. It was probably thought, that the whole subject was safe, where it was already lodged; and that congress ought to be left free to exercise a sound discretion, according to the future exigencies of the nation, either to increase, or diminish the number of representatives.

§ 674. There yet remain two practical questions of no inconsiderable importance, connected with the clause of the constitution now under consideration. One is, what are to be deemed direct taxes within the meaning of the clause. The other is, in what manner the apportionment of representatives is to be made. The first will naturally come under review in examining the powers of congress, and the constitutional limitations upon those powers; and may, therefore, for the present, be passed over. The other was a subject of much discussion at the time, when the first apportionment was before congress after the first census was taken; and has been recently revived with new and increased interest and ability. It deserves, therefore, a very deliberate examination.

§ 675. The language of the constitution is, that "representatives and direct taxes shall be apportioned among the several states, &c. according to their respective numbers;" and at the first view it would not seem to involve the slightest difficulty. A moment's reflection will dissipate the illusion, and teach us, that there is a difficulty intrinsic in the very nature of the subject. In regard to direct taxes, the natural course would be to assume a particular sum to be raised, as three millions of dollars; and to apportion it among the states according to their relative numbers. But even here, there will always be a very small fractional amount incapable of exact distribution, since the numbers in each state will never exactly coincide with any common divisor, or give an exact aliquot part for each state without any remainder. But, as the amount may be carried through a long series of descending money fractions, it may be ultimately reduced to the smallest fraction of any existing, or even imaginary coin.

§ 676. But the difficulty is far otherwise in regard to representatives. Here, there can be no subdivision of the unit; each state must be entitled to an entire representative, and a fraction of a representative is incapable of apportionment. Yet it will be perceived at once, that it is scarcely possible, and certainly is wholly improbable, that the relative numbers in each state should bear such an exact proportion to the aggregate, that there should exist a common divisor for all, which should leave no fraction in any state. Such a case never yet has existed; and in all human probability it never will. Every common divisor, hitherto applied, has left a fraction greater, or smaller, in every state; and what has been in the past must continue to be for the future. Assume the whole population to be three, or six, or nine, or twelve millions, or any other number; if you follow the injunctions of the constitution, and attempt to apportion the representatives according to the numbers in each state, it will be found to be absolutely impossible. The theory, however true, becomes practically false in its application. Each state may have assigned a relative proportion of representatives up to a given number, the whole being divisible by some common divisor; but the fraction of population belonging to each beyond the point is left unprovided for. So that the apportionment is, at best, only an approximation to the rule laid down by the constitution, and not a strict compliance with the rule. The fraction in one state may be ten times as great, as that in another; and so may differ in each state in any assignable mathematical proportion. What then is to be done? Is the constitution to be wholly disregarded on this point? Or is it to be followed out in its true spirit, though unavoidably differing from the letter, by the nearest approximation to it? If an additional representative can be assigned to one state beyond its relative proportion to the whole population, it is equally true, that it can be assigned to all, that are in a similar predicament. If a fraction admits of representation in any case, what prohibits the application of the rule to all fractions? The only constitutional limitation seems to be, that no state shall have more than one representative for every thirty thousand persons. Subject to this, the truest rule seems to be, that the apportionment ought to be the nearest practical approximation to the terms of the constitution; and the rule ought to be such, that it shall always work the same way in regard to all the states, and be as little open to cavil, or controversy, or abuse, as possible.

§ 677. But it may be asked, what are the first steps to be taken in order to arrive at a constitutional apportionment? Plainly, by taking the aggregate of population in all the states, (according to the constitutional rule,) and then ascertain the relative proportion of the population of each state to the population of the whole. This is necessarily so in regard to direct taxes; and there is no reason to say, that it can, or ought to be otherwise in regard to representatives; for that would be to contravene the very injunctions of the constitution, which require the like rule of apportionment in each case. In the one, the apportionment may be run down below unity; in the other, it cannot. But this does not change the nature of the rule, but only the extent of its application.

§ 678. In 1790, a bill was introduced into the house of representatives, giving one representative for every thirty thousand, and leaving the fractions unrepresented; thus producing an inequality, which was greatly complained of. It passed the house; and was amended in the senate by allowing an additional representative to the states having the largest fractions. The house finally concurred in the amendment, after a warm debate. The history of these proceedings is summarily stated by the biographer of Washington, as follows:--"Construing," says he, "the constitution to authorize a process, by which the whole number of representatives should be ascertained on the whole population of the United States, and afterwards apportioned among the several states according to their respective numbers, the senate applied the number thirty thousand, as a divisor, to the total population, and taking the quotient, which was one hundred and twenty, as the number of representatives given by the ratio, which had been adopted in the house, where the bill originated, they apportioned that number among the several states by that ratio, until as many representatives, as it would give, were allotted to each. The residuary members were then distributed among the states having the highest fractions. Without professing the principle, on which this apportionment was made, the amendment of the senate merely allotted to the states respectively the number of members, which the process just mentioned would give. The result was a more equitable apportionment of representatives to population, and a still more exact accordance, than was found in the original bill, with the prevailing sentiment, which, both within doors and without, seemed to require, that the popular branch of the legislature should consist of as many members, as the fundamental laws of the government would admit. If the rule of construing that instrument was correct, the amendment removed objections, which were certainly well founded, and was not easily assailable by the advocates of a numerous representative body. But the rule was novel, and overturned opinions, which had been generally assumed, and were supposed to be settled. In one branch of the legislature, it had been already rejected; and in the other, the majority in its favour was only one."

§ 679. The debate in the two houses, however, was purely political, and the division of the votes purely geographical; the southern states voting against it, and the northern in its favour. The president returned the bill with two objections. "1. That the constitution has prescribed, that representatives shall be apportioned among the several states according to their respective numbers; and there is no proportion or divisor, which, applied to the respective numbers of the states, will yield the number and allotment of representatives proposed by the bill. 2. The constitution has also provided, that the number of representatives shall not exceed one for thirty thousand, which restriction is by the context, and by fair and obvious construction, to be applied to the several and respective numbers of the states, and the bill has allotted to eight of the states more than one for thirty thousand." The bill was accordingly lost, two thirds of the house not being in its favour. It is understood, that the president's cabinet was greatly divided on the question.

§ 680. The second reason assigned by the president against the bill was well founded in fact, and entirely conclusive. The other, to say the least of it, is as open to question, as any one, which can well be imagined in a case of real difficulty of construction. It assumes, as its basis, that a common ratio, or divisor, is to be taken, and applied to each state, let the fractions and inequalities left be whatever they may. Now, this is a plain departure from the terms of the constitution. It is not there said, that any such ratio shall be taken. The language is, that the representatives shall be apportioned among the several states according to their respective numbers, that is, according to the proportion of the whole population of each state to the aggregate of all the states. To apportion according to a ratio, short of the whole number in a state, is not an apportionment according to the respective numbers of the state. If it is said, that it is impracticable to follow the meaning of the terms literally, that may be admitted; but it does not follow, that they are to be wholly disregarded, or language substituted essentially different in its import and effect. If we must depart, we must depart as little as practicable. We are to act on the doctrine of cy pres, or come as nearly as possible to the rule of the constitution. If we are at liberty to adopt a rule varying from the terms of the constitution, arguing ab inconvenienti, then it is clearly just as open to others to reason on the other side from opposing inconvenience and injustice.


The Founders' Constitution
Volume 2, Article 1, Section 2, Clause 3, Document 22
http://press-pubs.uchicago.edu/founders/documents/a1_2_3s22.html
The University of Chicago Press

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.

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