Opinion on Apportionment Bill
The Constitution has declared that ‘Representatives and direct taxes shall be apportioned among the several states according to their respective numbers,’ that ‘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 entitled to chuse 3. Massachusets &c.
The bill for apportioning representatives among the several states, without explaining any principle at all, which may shew it’s conformity with the constitution, or guide future apportionments, says that New Hampshire1 shall have three members, Massachusets 16, &c. We are therefore to find by experiment what has been the principle of the bill, to do which it is proper to state the federal or representable numbers of each state, and the members allotted to them by the bill. They are as follows:
It happens that this representation, whether tried as between great and small states, or as between North and South, yeilds, in the present instance, a tolerably just result, and consequently could not be objected to on that ground, if it were obtained by the process prescribed in the Constitution. But if obtained by any process out of that, it becomes arbitrary, and inadmissible.
The Ist member of the clause of the constitution above cited is express that representatives shall be apportioned among the several states according to their respective numbers. That is to say, they shall be apportioned by some common ratio. For proportion, and ratio, are equivalent words; and it is the definition of proportion among numbers, that they have a ratio common to all, or in other words a common divisor. Now, trial will shew that there is no common ratio, or divisor, which, applied to the numbers of each state, will give to them the number of representatives allotted in this bill. For trying the several ratios of 29. 30. 31. 32. 33. the allotments would be as follows:
Then the bill reverses the Constitutional precept, because, by it, ‘representatives are not apportioned among the several states according to their respective numbers.’
It will be said that though, for taxes, there may always be found a divisor which will apportion them among the states according to numbers exactly, without leaving any remainder, yet, for representatives, there can be no such common ratio, or divisor, which, applied to the several numbers, will divide them exactly, without a remainder or fraction.—I answer then, that taxes must be divided exactly, and representatives as nearly as the nearest ratio will admit; and the fractions must be neglected: because the constitution wills absolutely that there be an apportionment, or common ratio; and if any fractions result from the operation, it has left them unprovided for. In fact it could not but foresee that such fractions would result, and it meant to submit to them. It knew they would be in favor of one part of the union at one time, and of another at another, so as, in the end, to balance occasional inequalities.—But instead of such a single common ratio, or uniform divisor, as prescribed by the constitution, the bill has applied two ratios, at least, to the different states; to wit that of 30,026 to the seven following R. Island, N. York, Pensylvania, Maryland, Virginia, Kentuckey and Georgia, and that of 27,770 to the eight others, namely Vermont, N. Hampshire, Massachusets, Connecticut, N. Jersey, Delaware, N. Carolina, and S. Carolina, as follows:
|N. York||352,915||11||N. Hampshire||141,823||5|
and if two ratios may be applied, then 15 may, and the distribution become arbitrary, instead of being apportioned to numbers.
Another member of the clause of the constitution, which has been cited, says ‘the number of representatives shall not exceed one for every 30,000, but each state shall have at least one representative.’ This last phrase proves that it had in contemplation that all fractions, or numbers below the common ratio, were to be unrepresented; and it provides specially that in the case of a state whose whole number shall be below the common ratio, one representative shall be given to it. This is the single instance where it allows representation to any smaller number than the common ratio, and by providing specially for it in this, shews it was understood that, without special provision, the smaller number would, in this case, be involved in the general principle.
The first phrase of the above citation, that ‘the number of representatives shall not exceed one for every 30,000’ is violated by this bill which has given to 8. states a number exceeding one for every 30,000. to wit, one for every 27,770.
In answer to this, it is said that this phrase may mean either the thirty thousands in each state, or the thirty thousands in the whole union, and that in the latter case it serves only to find the amount of the whole representation: which, in the present state of population, is 120. members.—Suppose the phrase might bear both meanings: which will Common sense apply to it? Which did the universal understanding of our country apply to it? Which did the Senate and Representatives apply to it during the pendency of the first bill, and even till an advanced stage of this second bill, when an ingenious gentleman found out the doctrine of fractions, a doctrine so difficult and inobvious, as to be rejected at first sight by the very persons who afterwards became it’s most zealous advocates?—The phrase stands in the midst of a number of others, every one of which relates to states in their separate capacity. Will not plain common sense then understand it, like the rest of it’s context, to relate to states in their separate capacities?
But if the phrase of one for 30,000. is only meant to give the aggregate of representatives, and not at all to influence their apportionment among the states, then, the 120 being once found, in order to apportion them, we must recur to the former rule which does it according to the numbers of the respective states; and we must take the nearest common divisor, as the ratio of distribution, that is to say, that divisor which, applied to every state, gives to them such numbers as, added together, come nearest to 120. This nearest common ratio will be found to be 28,858. and will distribute 119. of the 120 members, leaving only a single residuary one. It will be found too to place 96,648 fractional numbers in the 8. Northernmost states, and 105,582 in the 7. Southernmost. The following table shews it:
|ratio of 28,858||fractions|
Whatever may have been the intention, the effect of rejecting the nearest divisor, (which leaves but one residuary member) and adopting a distant one (which leaves eight) is merely to take a member from New York and Pensylvania each, and give them to Vermont and New Hampshire.
But it will be said, ‘this is giving more than one for 30,000.’ True: but has it not been just said that the one for 30,000 is prescribed only to fix the aggregate number, and that we are not to mind it when we come to apportion them among the states? That for this we must recur to the former rule which distributes them according to the numbers in each state? Besides does not the bill itself apportion among 7. of the states by the ratio of 27,770? which is much more than one for 30,000.
Where a phrase is susceptible of two meanings, we ought certainly to adopt that which will bring upon us the fewest inconveniencies. Let us weigh those resulting from both constructions.
From that giving to each state a member for every 30,000 in that state, results the single inconvenience that there may be large fractions unrepresented. But, it being a mere hazard on which states this will fall, hazard will equalize it in the long run.
From the other results exactly the same inconvenience. A thousand cases may be imagined to prove it. Take one.—Suppose 8 of the states
had 45,000 inhabitants each, and the other seven each, that is to say each one less than each of the others. The aggregate would be 674,993. and the number of representatives at one for 30,000 of the aggregate, would be 22. Then, after giving one member to each state, distribute the 7. residuary members among the 7. highest fractions, and tho’ the difference of population be only an unit, the representation would be the double. Here a single inhabitant the more would count as 30,000. Nor is this case imaginable only: it will resemble the real one whenever the fractions happen to be pretty equal through the whole states. The numbers of our census happen by accident to give the fractions all very small, or very great, so as to produce the strongest case of inequality that could possibly have occurred, and which may never occur again. The probability is that the fractions will generally descend gradually from 29,999 to 1. The inconvenience then of large unrepresented fractions attends both constructions: and while the most obvious construction is liable to no other, that of the bill incurs many and grievous ones.
- 1. If you permit the large fraction in one state to chuse a representative for one of the small fractions in another state, you take from the latter it’s election, which constitutes real representation, and substitute a virtual representation of the disfranchised fractions: and the tendency of the doctrine of virtual representation has been too well discussed and appreciated by reasoning and resistance, on a former great occasion, to need development now.
- 2. The bill does not say that it has given the residuary representatives to the greatest fractions; tho’ in fact it has done so. It seems to have avoided establishing that into a rule, lest it might not suit on another occasion. Perhaps it may be found the next time more convenient to distribute them among the smaller states; at another time among the larger states; at other times according to any other crotchet which ingenuity may invent, and the combinations of the day give strength to carry; or they may do it arbitrarily, by open bargain and cabal. In short this construction introduces into Congress a scramble, or a vendue, for the surplus members, it generates waste of time, hotblood, and may at some time, when the passions are high, extend a disagreement between the two houses to the perpetual loss of the thing, as happens now in the Pensylvania assembly: whereas the other construction reduces the apportionment always to an arithmetical operation, about which no two men can ever possibly differ.
- 3. It leaves in full force the violation of the precept which declares that representatives shall be apportioned among the states according to their numbers, i.e. by some common ratio.
Viewing this bill either as a violation of the constitution, or as giving an inconvenient exposition to it’s words, is it a case wherein the President ought to interpose his negative? I think it is.
- 1. The Non-user of his negative begins already to excite a belief that no President will ever venture to use it: and consequently has begotten a desire to raise up barriers in the state legislatures against Congress throwing off the controul of the constitution.
- 2. It can never be used more pleasingly to the public, than in the protection of the constitution.
- 3. No invasions of the constitution are so fundamentally dangerous as the tricks played on their own numbers, apportionment, and other circumstances respecting themselves, and affecting their legal qualifications to legislate for the Union.
- 4. The majorities by which this bill has been carried (to wit of 1. in the Senate, and 2. in the Representatives) shew how divided the opinions were there.
- 5. The whole of both houses admit the constitution will bear the other exposition, whereas the minorities in both deny it will bear that of the bill.
- 6. The application of any one ratio is intelligible to the people, and will therefore be approved: whereas the complex operations of this bill will never be comprehended by them, and tho’ they may acquiesce, they cannot approve what they do not understand.
Apr. 4. 1792.
MS (DLC: Washington Papers). PrC (DLC).
TJ’s legal opinion helped to resolve a long and bitter congressional controversy over the reapportionment of seats in the House of Representatives in accordance with the first federal census. TJ himself took a lively interest in the progress of this dispute, which at various times pitted North against South, free states against slave states, and small states against large states, because of his conviction that an expansion in the size of the House would weaken what he perceived to be Hamilton’s unwholesome influence on its deliberations (Notes on Conversation on Rufus King, 25 Dec. 1791; TJ to Washington, 23 May 1792). The conflict originated in November 1791 when the House agreed overwhelmingly to increase its membership from 67 to 112 by giving each state one representative for every 30,000 of its representable population, while disregarding any fraction of its population below 30,000 for the purpose of apportionment. In an effort to reduce the size of these fractions, the Senate amended the bill and changed the ratio of representation to one per 33,000 of each state’s population. But the House rejected this amendment, which would have increased its membership to only 105, and thus the bill failed to pass Congress (JHR description begins Journal of the House of Representatives of the United States, Washington, D.C., 1826, 9 vols. description ends , i, 456, 459, 462, 470, 472–4, 475–7, 478; JS description begins Journal of the Senate of the United States, Washington, D.C., 1820–21, 5 vols. description ends , i, 342, 345, 347, 349–51, 354, 356, 358; Annals description begins Annals of the Congress of the United States: The Debates and Proceedings in the Congress of the United States … Compiled from Authentic Materials by Joseph Gales, Senior, Washington, Gales & Seaton, 1834–56, 42 vols. All editions are undependable and pagination varies from one printing to another. The edition cited here has this caption on both recto and verso pages: “History of Congress.” Another printing, with the same title-page, has “Gales & Seatons History” on verso and “of Debates in Congress” on recto pages. Those using the latter printing will need to employ the date or, where it is lacking, to add approximately 52 to the page numbers of Annals as cited in this volume. description ends , iii, 200–4, 243–50, 254–74; Rutland, Madison, xiv, 108, 135, 155, 156).
In order to overcome this impasse, the House approved an apportionment bill in February 1792 that was identical to the first except for the crucial addition of a new clause calling for another federal census and reapportionment of the House by 1797. However, the Senate rejected this plan and simply apportioned 120 representatives among the states without specifying the ratio used to arrive at this result. In effect, as contemporary evidence makes clear, the Senate first determined the size of the House by applying the ratio of one representative per 30,000 to the aggregate U.S. population. It then applied the same ratio to each state individually, producing a total of 112 representatives, and assigned the remaining seats to the eight states with the largest fractions. Despite objections that its lack of a specific ratio of representation was unconstitutional and its use of the aggregate national population a violation of states’ rights, the bill as amended by the Senate narrowly passed both houses of Congress and was sent to the President for signature on 26 Mch. 1792. Since the Senate version of the bill gave six of the eight extra representatives to the North, the votes on this measure were cast almost strictly along sectional lines (JHR description begins Journal of the House of Representatives of the United States, Washington, D.C., 1826, 9 vols. description ends , i, 495–7, 503, 509–14, 516, 535, 538–40, 543–6, 549; JS description begins Journal of the Senate of the United States, Washington, D.C., 1820–21, 5 vols. description ends , i, 394, 396–7, 405–6, 408–9, 412, 414, 416; Annals description begins Annals of the Congress of the United States: The Debates and Proceedings in the Congress of the United States … Compiled from Authentic Materials by Joseph Gales, Senior, Washington, Gales & Seaton, 1834–56, 42 vols. All editions are undependable and pagination varies from one printing to another. The edition cited here has this caption on both recto and verso pages: “History of Congress.” Another printing, with the same title-page, has “Gales & Seatons History” on verso and “of Debates in Congress” on recto pages. Those using the latter printing will need to employ the date or, where it is lacking, to add approximately 52 to the page numbers of Annals as cited in this volume. description ends , iii, 331–6, 403–5, 407–14; Rutland, Madison, xiv, 195, 236, 252–3, 262, 269; “Lucius” essays, National Gazette, 22 Mch., 2 Apr. 1792; “Federalist” essay, same, 2 Apr. 1792).
Washington was deeply troubled about the constitutionality of the apportionment bill and the sectional divisions it had engendered in Congress. Accordingly, on 3 Apr. 1792, he asked the cabinet for advice on the course of action he should take with respect to this legislation. The cabinet thereupon divided along the same sectional lines as Congress. TJ and the Attorney General held that the apportionment bill was unconstitutional and urged Washington to veto it. The Secretary of Treasury and the Secretary of War argued in favor of the bill’s constitutionality and advised Washington to sign it (Edmund Randolph to Washington, 3 Apr. 1792; Hamilton to Washington, 4 Apr. 1792; Knox to Washington, 4 Apr. 1792; Summary of Cabinet Opinions by Tobias Lear, [4 Apr. 1792], all in DLC: Washington Papers; texts printed in John C. Hamilton, ed., The Works of Alexander Hamilton …, 7 vols. [New York, 1851], iv, 196–215, where Lear’s summary is incorrectly ascribed to TJ). After learning that U.S. Supreme Court Justice James Wilson also had grave reservations about the constitutionality of the apportionment bill, Washington yielded to the entreaties of the Secretary of State and the Attorney General and agreed to cast his first presidential veto. In a message jointly drafted by TJ, Randolph, and James Madison and submitted to Congress on 5 Apr. 1792, Washington announced that he was vetoing the apportionment bill for the following reasons: “1. The Constitution has prescribed that Representatives shall be apportioned among the several states according to their respective numbers: and there is no one proportion or divisor which, applied to the respective numbers of the states will yeild 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 every thirty thousand: which restriction is, by the context, and by fair and obvious construction, to be applied to the separate and respective numbers of the states: and the bill has allotted to eight of the States more than one for thirty thousand” (PrC in DLC; entirely in TJ’s hand; see also Fitzpatrick, Writings description begins John C. Fitzpatrick, ed., The Writings of George Washington, Washington, 1931-44, 39 vols. description ends , xxxii, 16–7; Edmund Randolph to Washington, 5 Apr. 1792, DLC: Washington Papers; TJ, Summary of Conversations, 11 Mch.-9 Apr. 1792). Congress thereupon passed, and Washington signed, an apportionment bill that created a House of 105 members by applying the ratio of one representative per 33,000 to the respective populations of the states and disregarding the left-over fractions-the very same bill the House had rejected when recommended by the Senate in December 1791. The so-called “Method of Rejected Fractions” continued to be used in every decennial reapportionment of seats in the House until 1840 when the inequities of this system became too great to be ignored (JHR description begins Journal of the House of Representatives of the United States, Washington, Gales & Seaton, 1826- description ends , i, 563–6, 571; JS description begins Journal of the Senate of the United States, Washington, Gales, 1820-21, 5 vols. description ends , I, 422–4, 426; Zechariah Chafee, Jr., “Congressional Reapportionment,” Harvard Law Review, xlii , 1021–3).
Fisher Ames was almost certainly the ingenious Gentleman criticized by TJ for advocating that the size of the House of Representatives be determined by dividing the ratio of representation into the aggregate population of the U.S. rather than into the respective population of each state (see Ames’ 16 Feb. 1792 speech on this issue in Annals description begins Annals of the Congress of the United States: The Debates and Proceedings in the Congress of the United States … Compiled from Authentic Materials by Joseph Gales, Senior, Washington, Gales & Seaton, 1834–56, 42 vols. All editions are undependable and pagination varies from one printing to another. The edition cited here has this caption on both recto and verso pages: “History of Congress.” Another printing, with the same title-page, has “Gales & Seatons History” on verso and “of Debates in Congress” on recto pages. Those using the latter printing will need to employ the date or, where it is lacking, to add approximately 52 to the page numbers of Annals as cited in this volume. description ends , iii, 409–11). But Ames was not the person who found out the doctrine of fractions during consideration of the second bill, as this issue had already been raised in the House during debate over the first apportionment bill in November 1791 (same, p. 243).
1. That is, Vermont.
2. New York’s representable population was actually 331,591. TJ mistakenly added 3/5 of New York’s slave population to its total population when, under the terms of the federal constitution, he should have subtracted 2/5 of the slave population from the state’s total population.
3. The number of representatives assigned North Carolina in the March 1792 apportionment bill was actually 12, rather than 11 as TJ indicated throughout the document.
4. Since New York’s representable population was actually 331,591, this figure should be 3,304,721.
5. That is, Georgia.