From Edmund Randolph
[Philadelphia] April 4. 1792.
The attorney general of the U.S. has the honor of reporting to the President of the U.S., on the representation-bill, as follows:
The points, which involve the question of constitutionality, are three:
- 1. to ascertain the process, by which the bill fixes the total number of representatives at 120:
- 2. to ascertain the process, by which the bill distributes that number among the states:
- and 3. to try both of them by the standard of the constitution.
The bill does not announce in terms the principle of proceeding, either in the establishment of the total number of 120, or its apportionment among the states. Some principle, however, it must have; otherwise the omission would of itself be glaringly unconstitutional, as creating a precedent for leaving the number of the house of representatives, and the distribution of that number, at the mere will of each different congress. It must therefore be sought by calculation.
1. From calculation then it appears, that neither 30,000, the lowest constitutional limit, nor any higher number, if assumed as the divisor of the fœderal numbers in each state, separately considered, will produce to each state such a number of representatives, as, when added together, shall amount to 120.
We then naturally turn to the aggregate fœderal number of the U.S.; to wit, 3,615,825; and the only divisor, which can draw 120 members from that number, is 30,000.
This too is the only mode, by which 120 members can be obtained by any act of arithmetic.
2. One hundred and twenty members are, in the next place, to be distributed.
Here too we are informed by calculation, that no common divisor, applied to the fœderal number in each state, will allot as many members, as the bill prescribes. Thirty thousand will fail with respect to eight out of fifteen states: a greater number how little soever above 30,000, will at least be as far from that result; and every number beyond a certain point would be farther and farther still. The other seven states have the exact number of representatives, which arises from a division of their fœderal numbers by 30,000. But, as 30000, taken as the divisor of the fœderal population in each state, gives 112 members; as the remainder of the 120 members is 8; and to each of the eight states, having the highest fractions, one member is added; it may be safely concluded, that congress distributed the 120 members in this form.
3. In trying this double process by the standard of the constitution, we must first determine, whether congress were at liberty to fix the total number of representatives, by dividing the aggregate fœderal population of the U.S., instead of the separate fœderal population of each state.
The following passages in the constitution are material on this head.
“Representatives and direct taxes shall be apportioned among the several states, according to their respective numbers.”
“The number of representatives shall not exceed one for every 30,000; but each state shall have at least one representative, and until such enumeration shall be made, the state of New-Hampshire shall be intitled to choose three” &c.
Hence it is argued, that as in laying direct taxes the sum must be resolved upon, before it can be apportioned; so a number of representatives must be established, before they can be apportioned; and this number can be procured only from the aggregate fœderal population.
It is not doubted, that this number must be the effect of some rule; and in fact we find the constitution declaring it to be, “according to their respective numbers”; that is the numbers of each state.
Let it then be seen, how direct taxes and representatives can be in proportion to numbers; for “proportion” and “apportion” may be accepted on this occasion, as synonimous. Direct taxes may be apportioned according to numbers by the rule of three thus; as the whole population is to the sum required; so is a particular population of a state to the sum, to be paid by that state. Thro’ this means every individual enters into the estimate; and not a cent is lost. But it is not so with representatives. For with what propriety can it be stated with respect to representatives, in a manner analogous to direct taxes? Can it be said, as the whole fœderal population is to the whole number of representatives; so is the particular number of representatives to the particular fœderal population of each state? It cannot be so contended for two reasons; first, because when the inquiry itself is, what shall the whole number of representatives be, it is false reasoning to assume that number as actually known already; and secondly, because, as representation is the deputation of one man to act for many, more than one must be combined in the account, before a representative can exist. Of course the constitution looked for a ratio as to representation; whereas it computed individuals in taxes; that is, numbers shall govern in both cases; but they govern each subject, acccording to its nature; so at least as not to beget an absurdity.
Could congress increase the house of representatives to 240 members? No. Why? Because they must not exceed one for thirty thousand. What 30,000?—of the respective numbers; namely, of each state. If aggregate or collective numbers had been contemplated, how much easier would it have been, and how much more proper, to have substituted other words which were so obviously at hand? It seems to have been designed to make up the total number of representatives, just as a stock in trade is created: each state is a contributor to it; and the contributions added together, furnish the whole. In this way the first house of representatives is composed under the constitution: New Hampshire is to have three &c.
Why are states to have any representatives, as states, if the aggregate fœderal population is to decide the number? It ought rather to have been said, in the constitution, that the boundaries of the states should not be an obstacle; but that the ratio should yield a member, wherever the numbers should be found to fill up that ratio.
This never was intended. Are not the states distinct in their rights of election? Can the numbers of one county even in the same state assist another county in procuring a member? Is it not repugnant to the spirit of the constitution, to tack the numbers of one state to those of another, for the purpose of procuring a member? Is it not unexampled, that New-York should with its numbers contribute towards a member for New Jersey; when an elector of the former can have no fellow-interest or sympathy with the electors of the latter; and, without a freehold in the latter, would probably be debarred of a suffrage therein?
The fractions, it is true, are very large in many of the states; but such fractions are familiar in practice. In some states representatives are according to a certain ratio of population; but the number above one integer, and not equal to another, has always been laid aside. In the management too of the national bank, many shares between two numbers, constituting a vote, are unrespected. If the fraction of one state can raise a member for another, it may often happen, that the balance, which the states wish to preserve among themselves, may be destroyed unexpectedly by their own act. What would the sensations of South Carolina be, if her blacks should cooperate in giving a member to Connecticut?
It is remarkable, that most of the advocates of the bill do themselves admit, that the constitution is susceptible of the construction abovementioned, as well as of their own.
The argument, deduced from the amendment, proposed to the constitution on the subject of representation, might be shewn to be inapplicable, even if it were admissible. But it is inadmissible; because the amendment has not as yet become the sense of the U.S. It is inapplicable. For altho’ it has been observed, that without recurring to the aggregate fœderal population, it might happen that three millions of persons would not give one hundred members; the answer is full as strong, to reply, that congress would not be called upon to have one hundred members, unless one hundred times 30,000 should be contained in the separate fœderal populations of the several states. Indeed the amendment proves nothing either way.
In short, it is wonderful, that, after admitting the necessity of applying some ratio, and after perceiving, that the application of that ratio to the aggregate fœderal population, will produce such a number of representatives, as cannot be distributed by any ratio whatever, the friends to the bill should not have abandoned it upon their own principles.
Here lies the radical objection, and the violation of the constitution.
If it be not here, the attorney general must in candor own, that it is no where, in his opinion. For if the 120 members can be established, the subdivision cannot be executed in any other, or in any fairer manner. The ratio of 30,000 is carried thro’ the particular, as well as the aggregate fœderal population, as far as it can; and the remaining eight members are distributed equitably.
This is the best judgment therefore, which the attorney-general has been able to form without longer premeditation. Whether the reasoning on the opposite side ought to weigh against the interposition of a negative, it is not for him to decide.