Tobias Lear’s Notes on the Opinions of the Cabinet
[Philadelphia, c.4 April 1792]1
The opinion of the Secretary of State
declares the bill unconstitutional—for it does not apportion the Representatives among the states strictly according to their numbers.
It provides for fractions—which the Constitution never intended.
It leaves the dertermination of apportioning the Representatives without any fixed principle—which may hereafter be productive of great evil, and admits of caballing & bargaining on the subjects.
Bill carried by a small majority—1 in Senate & 2 in the House.
The Whole of both Houses admit that the constitution will bear either to have the bill in its present state—or to have one for 30,000 in each state—leaving the fractions. But the minorities will not admit of the constitutionality of the present bill.
The Atty Genl of the U.S.
The Bill does not express the principle or rule by wh. the number of Representatives is ascertained—it is therefore to be sought by Calculation—which makes one to 30,000. taking the whole number in the U.S.—But it will be found that dividing the number in each state by 30,000, & there will be found 8 states that will have each a membr less than they now have, if divided according to the numbers in the states respectively.
The Constitution looks for a Ratio in Representation; but it computed individuals as to taxes. The bill destroys the distinction of states; for the Ratio yields to numbers.
The advocates of the bill admit that the Constitution is susceptible of another construction, as well as of their’s.
A Ratio is applied to the aggregate population of the U.S. as produces a number that cannot be distributed by any ratio whatever—and in this lays the unconstitutionality of the bill.
The Secretary of the Treasury
has not seen the bill; but presumes that the process, for forming the result of the bill, has been in a certain way, which he mentions.
Thinks either the division of the aggregate number in the U.S. by 30,000, or the particular number in each state by that ratio would be constitutional.
If a direct tax shd be imposed, the only way of apportioning it among the several States would be that which has been pursued in the bill & therefore, it is consonant to the clause in the constitution respectg Representation & taxation.
That there would be a residue arising upon the whole, after dividing the numbers in each state by 30,000, & that it is but right that the states having the greatest fraction should receive the benefit resulting from dividing the aggregate number in the U.S. by 30,000.
The bill performs every requisite in the Constitution in a manner most consistent with equality.
Altho’ the Bill cannot be said to be unconstitutional, yet there may be another construction of wh. the Constitution is capable. And where it may be taken in either sense, it is best to follow the legislative opinion.
The Secretary of War
It has been said that the Construction of the bill may be deemed within the letter, as well as the spirit of the Constitution—If that is the case, the assent of the President of the U.S. is to be governed by the political equity of the measure.
He approves the bill upon the principle of its giving a representation to the largest fractions.
The constitutionality of the bill being only doubted—not proved—it wd appear a delicate measure for the President to decide against the sense of the legislature.
1. Lear apparently prepared these notes after GW had received the various written opinions of the attorney general and department secretaries. GW later docketed the document “Opinions of the Secretaries of State Treasury & War—& Attorney General Respecting the Representation Bill negatived by the President of the United States April—1792.”