« ForrigeFortsett »
and other days of your session, given to me of| APPORTIONMENT.
THURSDAY, MAY 3, 1832.
was referred the amendments of the Senale
to the bill (H. R. No. 208) for the apportion. at home; and to uphold, with vigor, and
ment of Representatives among the several
States, according to the Fifth Census, made
the following Report:
the bill passed by the House of Representa.
tives, entitled "An act for the apportion. the present generation, whether it shall be pre.
ment of Representatives among the several served and transmitted to posterity, as the most
Stales according to the Fifth Census," which precious of all earthly possessions. Next to
was returned from the Senate with a proposa that, in importance, is our Union, indissolubly
ed amendment thereto, have had the subject connected with it, also derived from the
under consideration, and ask leave to report: fathers of our country. But what we want is a That the bill passed by this House, like eve. practical, efficient, and powerful Union-one ry other upon the same subject which has bethat shall impartially enforce the laws towards come a law, assumes a common divisor or ratio all, whether individuals or communities, who of representation, which, being applied to the are justly subject to their authority; a Union separate population of the respective States, which, if it shall ever be deemed necessary to and rejecting fractions, the number of Repre. chide one member of the confederacy, fo. rash sen atives allotted to each is ascertained." it and intemperate 'expressions, threatening its provides that there shall be one Ripresentative disturbance, will snatch violated laws and in this House for each 47,700 of federal poputreaties from beneath the feet of another mem-lation in the respective States; and, according ber, and deliver free. citizens of ine United to this ratio, apportions to each State the numStates from unjust and ignominious imprison. ber of Representatives to which its population ment,
may entitle it, excluding from representation all
The amendment of the Senate proposes a
, happy, and illustrious!
by striking out all after its enacting clause , and
substituting a new scheme of representation (of An honest Hibernian, who has been appoint- the people in the popular branch of Cufted 10 office under the present administration, gress, and is, in effect, an entire new bill. The meeting an acquaintance a few minutes after the amendment fixes the number of representatives assault upon Mr. Arnold, said: “The scoun-Jin tb's House at 251 members; and, it is :o be drel ought to have been killed." "Why so?" observed, that there is no ratio or common disaid the other. “Oh, he will do the old Pre. visor that can be selected which, when applied sident so much injury,” replied the Irishman. to the respective population of the respective
States, will yield the number and allotment EDITORIAL CHANGES. of representatives's proposed by it. The aThe Focus and Journal, at Louisville, Ken- mendment of the Senate, unlike any former tucky; the Commentator and Kentuckian, al taw on this subject, fixes not on a ratio of re. Frankfort, and the Reporter and Observer, at presentation, but assumes the whole number Lexington, have been amalgamated. These of representatives of which the House shall be are the leading papers devoted to the support composed, and, on principles vf consolidation, of Mr. Clay.
aggregates the whole population of the sever to be subjected on account of its numbers. It al States, divides this consolidated mass of fe- is to be observed that the apportionment dideral population by the proposed number of rected to be made, is among States regarded as tbe House; and, having thus obtained a ratio of separate distinct communi jes, or masses of porepresentation, proceeds, by it, to apportion to pulation, and not as parts of the consolidated each State such number of representatives as populaion of the Union melie d down into one is equal to the number of times the ratio is con- mass or community. We are never at liberty tained in its population, and if, in this manner, to consider the people of the United States as there remain any of the number of representa- a mass, and to apportion the representatives atives proposed as the proper number of the mong the States as if the whole was one nation, House, such numbers are apportioned one to bui must continually keep in mind that ours is each State having a traction larger than the a federative republic, and that the peuple of moiety of the ratio so obtained. The princi- each memher or State must be considered and ple of the amendment, as the committee under-acted upon as an independent community in all stand it, is, first, to fix the number of the respects where their sovereignty has not been House, and then to apportion them to the expressly surrendered. This being the case, States on a ratio ascertained from the consoli- it at once occurs to the committee, and they dated federal population of the United States, lay it down as a leadmg principle, a departure 80 as to give to each State a representative for from wbich is not permitted by the obvious each number of times the population of such meaning of the clause in the constitution to State may contain such ratio, and, also, one which they have referred, that, whatever rule additional representative to each State for any of apportionment is adopted, whether it be the fraction of its population greater than one-half rule of proportion, a ralio, or common diviser; that ratio; and to leave unrepresented all frac- whatever it be, it ought to be just; and, to be tions in each State less than one-half such ra- constitutional, it must be a uniform rule oper. tio, though the aggregate of such minor should ating in all the States, and producing some pracexceed the aggregate of such major fractions. tical result in each State. such a rule bas been
pon this principle, the amendment of the Se- uniformly arlopied in all preceging appor ionnale allots, to eleven of ihe States, each one ments. The amendment of the Senate conrepresentative for fractions; and the ques- tains no one rule applying alike to all the tion presented by it is, shall fractions be repre. States, and operating in each; but, on the conbented, or can they be represented according trary, it arbitrarily assigns a representative to to the constitution?
fractions in some of the States, and withholds The committee believe that the principle a. any representative to fractions in oiher States, dopted by the House of fixing on a ratio, ap- and, in fact, and in effect, makes the unrepreplying it to the federal population of the sevea sented fractions in some of the States a part of ral states, respectively, without any reference the constituency of the representatives of fracto fractions, is constitutional and expedient; tions in other States in whose e.ection they and that the principle now sought to be esta have, and can have, no voice. blished by the amendment of the Senate, is
The most natural process of apportionment unconstitutional and entirely inexpedient. That would s«em to be that of fixing in the mind the the apportionment adopted by the bill of the number of constiuents which each representaHouse is constitutional, and that provided in tive shall have; and, by a ratio or common dithe Senate's amendment unconstitutional, will, visor thus found, assign to each siate its numit is believed, equally appear
ber of members, by dividing its representative 1st. From the express provisions of the federal population by this common divisor, and constitution applicableto the subject-and letting each State submit to the loss of its own 2d. From the cotemporaneous construction fraction, be it great or small. This must have given to the constitution, and all the legislation been the rule in the mind of the convention, ever had under it.
because they allude to the number of constitue By the second section of the first article of ents which may entitle to a representative: the constitution, it is provided that corepresen- thirty thousand Suppose Congress to take tatives and direct taxes shall be apportioned a- that number as a convenient ratio, what then mong the several States which may be included would be the rule! Most certainly we would within this Union according to their respective take thirty thousand as a common divisor, and numbers."
apportion to each State its number of repre" The number of Representatives shall not sentatives by dividing its whule number of fed. exceed one for every thirty thousand, but each eral population by this common divisor; and, State shall have at least one representative." in every instance, compelling each State to lose
In giving practical effect to this clause of the its own fraction, be it greater or less than that
stituency entitled to a representative. The only representative, it thereby impliedly prohibits restriction is that the number shall not be less the allowing one to any fraction in any other than thirty thousand; it may be as much greater case; for if, according to the understandling as Congress chooses. No matter, then what which the convention bad of their own work, greater number is selected as a ratio, it immer any other fraction might be represented condiately as much becomes a common divisor forsistently with the provisions of the constitution, all the States, as thirty thousand is when that this special limitation of the possible effects of number is selected, and when applied to the apportionment would have been useless. States respectively, each is as much bound to Moreover, can it be said that a rule of apporlose its own fraction, be it great or small, as it tionment is constitutional, which, in any apporwould be when the thirty thousand was select- tionment before the last, as conceded by the ed; and any representative for a less number principles of the amendment itself, might have than the ratio or common divisor is as much a operated unconstitutionaliy. This objection violation of the constitution in the one case as it may beurged against the rule proposed by the is in tbe other. If the ratio or common divisor Senate; for, at the rate of 33,000, which was selected, was thirty thousand, it is admitted the raio of the two first apportionments, every that it would be unconstitutional to assign a re. State having a less population than 150,000, presentative to fractions. Now, it is clear to might have had more than one representative The committee, that a change of the ratio or for every thirty thousand; and at the ratio of common divisor cannot change a constitutional 35,000, which was that of the thiril apportionprinciple.
ment, 'every State baving less than 90,000, In fixing the sense and construction of this might, in like manner, have had more than one section of the constitution, it is necessary, fur. representative for every 30,000. And the same ther to remark, that representatives are quanti- objection applies to any ratio less than 40,000 ties incapable of indefinite division, but are in. At any ratio, therefore, under 40,000, the rule tegral numbers, each of which is incapable of assuined by the Senate's amendment might ope. division; and that the population of the respec- rate unconstitutionally; and, at the first apporrive States are also integral numbers, ascertained tionment, this rule of the Senate, of representby the census, and incapable of being fixed by jog major fractions, would have produced the Congress. At the adoption of the constitution, unconstitutional effect of apportioning to each the population of each State exceeded thirty or the States of Vermont and Delaware, a re. thousand, and there was not the least probability presentative for less than thirty thousand. that, at any future period, any State in the Since, then, the rule of apporsiomnent must be Union would have a population less than thirty universal and equally applicable to the popula
. thousand. As the constitution fixed the mini. tion of every State; and that adopted by the mum ratio, or constituency, for a representative, Senate's amendment might in the given, and and in the most direct terms, made it applica would in the specified case, baye resulted in a ble not to the aggregate population of all the apportionment clearly unconstitutional, tije States, but to the population of the severul Stales commitee are of opinion, that the rule itsel respectively, the just, natural, and irresistible partakes of ihe unconstitutional character of its conclusion is that ine convention who framed the effects. constitution, intended that Congress should ap.
To illustrate and enforce the correctness of portion representatives among the States, by the conclusion to which they have come, the fixing a ratio of representation, not of the po- com'distee beg leave further io add, that fracpulation of the United States as a whole, but tions or remainders of population in the respee. applicable, and to be applied, to the federal tive States, less than the common divisor or rapopulation of the several States respectively. to assumed, cannot be represented As the convention must have foreseen that Con. 1st. Because it is not representatives only, gress might, and propably would, at the early bui direct taxes also, which are required by the apportionments, adopt the minimum ratio fixed constitution to be apportioned; and, in the apo by the constitution; and as, in that event, no portionment of such taxes, no Srate has ever fraction of population could be represented, borne, or would agree to bear, a greater share the just inference is, that it was intended that of these burthens than that indicated by the acany such fraction never should be regarded in tual number of ils people, and not by tbe #cany such apportionment; and so clear and irre- tual number of its members in the House of Resistible, in the minds of the convention, was presentatives. For example, the population of this conclusion from the words employed, that, the State of Delaware is about a one hundred to a void a mere possible, not a probable result, and sixtieth part of the whole population of the it was added that each Slate,” though its po United States. If the scheme of the amendpulation might be less than the ratio fixed on, ment of giving a representative to fractions • shall have at least one representative.” As it should obtain, she would then bave two memwas entirely improbable that any State would bers out of a House of two hundred and fiftyever have a population less than thirty thousand, ode, or about a one hundred and twenty-fith the provision of one representative for each part of the whole number of representatives State, could have reference only to a ratio to be she would not pay a one hundred and twentyfixed in future time higher than the population fifin part, but only a one hundred and sixtiell
. of some State; and as, in that case, the consti part of the taxes. Now, is there any justice in tution provides that each State shall have one giving to her such a large share of representa.
tives, when she ought not to bear, and would the constitution is thereby directed to be made not bear, a similar share of a direct lax, and anong the several States;” and no process of this, too, under a rule prescribed by the consti- apportionment can conform to this command tution, whereby both representatives and direct which does not include and apply the same rule taxes are to be apportioned in like manner? to all the States. But if you give a representa
2d. Because the requirement of the consti- tive to tractions, some of the States must netution is to apportion representatives, and not the cessarily be excluded from the apportionment, fractional parts of representatives, for the plain although they are contributors to the fund to be reason that the latter was physically impossible. distributed. You cannot have the fraction of a representa 5th. Because the constitution requires that tive. Each representative must have a consti. representatives should be apportioned among tuency, and as you cannot have the fraction of the several States “according to their respecta representative, so the fraction of a cons:ituen-five numbers;" but by this, or any other scheme cy cannot have an entire representative. of representing fractions which can be con
3d. Because, if such an apportionment was ceived, we are compelled to disregard the repermissible, it would violate its own fundamen-speclive numbers of the several States, in the tal prinsiples, and be contrary to justice; fir,as apportionment, and to give to some only what there are lwenty-four Statés, each of which will, belongs to all. We are obliged to consolidate in all probability, ever have a fraction at any into one mass the fractional population of all the ratio, the fractions of some of these must be ta. States, and instead of giving to them, several. ken to make up the fractions of others. Thus, ly, what they are entitled to according to their for illustration, suppose that' twelve of the respective numbers, we force some to contriStates had each a major fraction, or a fraction bute to the benefit of others. a unit greater than the moiety of the ratio as It has been argued that, as exact equality can sumed, and the remaining twelve States have not be attained in the apportionment of repreeach a minor fraction, or a fraction a unit less senlatives, the rule of construction is, that it than the moiety of the ralio assumed, the twelve must be made as nearly equal as may be. WithStates, according to the principle assumed by out admitting that a representation of fractions the amendment, þaving minor fractions a unit fapproximates to equality, and believing that it less than the moiety of the ratio, must contri- tends to greater inequality than the r rejection, bute the fractional parts of their population to this argument appears inaumissible; and, if make up the larger fractio parts of the adopted in our legislation on this subject, may twelve other States, each having fractions a unit lead to the worst consequences-for if, in greater than the moiety of the ratio assumel, the apportionment, Congress must make the and so give to the latter twelve Staies each ay apportionment as nearly equalras may be, Conaxlditional representative. That is to say, in the grass must fix the numbers of the House and the Case supposed, (and if it be an extreme case, it ratio of representation so as to attain this sup. will not be denied that approximations to it posed equality. In practice, it will be found in may and must occur, according to the principle almost, perhaps every case, that the lowest ratio of the amendment,) if the ratio assumed be fifty will make the most equal apportionment; and, thousand, and twelve of the States have each according to this argument, Congress must, a fraction of 25,001, and (welve other States adopt that ratio, to whatever extent the increas. have each a fraction of 24,999, the fractions of ing population of the country might swell the the latter twelve States must contribute to the numbers of the House. The minimum ralio forcer the whole of their fractional numbers, fixed by the convention, and their knowledge so as to give them twelve additional represen- that the numbers of the House could not keep tatives. And can any one, the committee ask, pace with the increase of population, are, in consider as apporti»nment ibat process which ihe opinion of the committee, a conclusive regives all of the subject to be apportioned 10 futation of the argument which interpolates on some, and none to others of the contributors, or the constitution the words as near as may be; which makes a whole of equal value with a waere the Convention thought proper to omit fractional part of itself?
ther. The inequality and injustice of giving to a
The view already taken, it would appear, is Stute a representative for a major fraction, musi the natural and just interpretation of the conbe apparent to all, when it is considered that, stitution, and that which ought to be placed upin practice it may, and probably will, so hap- on it, if, for the first time, we were about to tia pen that only a few States whose aggregate po. its meaning. But such is not the case. The pulation may be equal to one-tenth of the whole very question involved by the amendment oc. population of the Union, may each be entitled curred at the very commencement of this goto a representative for its major fraction, and vernment, and was then fully discussed and set. the resiclue of the States, containing eight. tled.
The decision then made has regulated tenths of the whole population, each having mi the proceedings of Congress, in reference to nor fractions, in the aggregate, much greater this matter, ever since, and, if practice or prethan the aggregate of such major fractions, will cedents can settle any qnestion arising under bedenied a representative, not only for their the constitution, this, it would seem, is now selseveral fractions, but for the total aggregate of Lied in the strongest possible manner. It may them.
not be altogether unprofitable to trace the his. 4th. Because the apportionment required by Story of this question, the discussion and the de
cision upon it at the first apportionment of ro respect to individual States? We find, too presentatives. The constitution had required that numerous tables of calculation were then, an actual enumeration of the people to be made as now, prepared, and with the same view, tu within three years after the first meeting of wit: to show the nearer approach to equality Congress, in order that the representatives which it was then, as now, contended would might be apportioned among the several States be attained by adopting the principle of repreaccording to their respective numbers. senting fractions in some of the States, than
The first census having been taken, Con- could be attained in any other mode. The gress, at their session of 1791–2, undertook to House at first disagreed io the Senate's amendmake the required apportionment of represen- ment; the Senate insisted; and, finally, the tatives. Great difficulties were found to, exist House, 'when all its members were not present, between the House and the Senate in agreeing receded from their disagreement to the amend. upon any bill of apportionment. The first bill ment by a majority of i wo votes, and the bill passed by the House fixed the ratio of 30,000, passed. When this bill was presented to Prethe Senate amended it by striking out 30,000, siuent Washington, he refused to approve it, and inserting 33,000, but in neither was any and, returning it to Congress, assigned two provision made for representing fractions; both reasons for the veto which he interposed. the House and the Senate adhered, and this These reasons the committee will here give in bill was lost by the disagreeing votes of the bis own words, to wit: two bodies. A new bill was immediately
“ UNITED STATES, April 5th, 1782. brought into the House and passed. In the Senate, this same principle of representing frac.
" Gentlemen of the House of Representalives: tions was proposed and carried by a majority of
“ I have maturely considered the act passed one vote, as an amendment to the House bill. by the two Houses, entitled • An act for an apIt is proper here to remark that the amendment portionment of representatives among the serof the Senate then, as now, fixed, not the ratio eral States according to the first ellumeration,' of representation, but the numbers of the House. and I return it to your House, wherein it origiUpon its return to the House, it gave rise to nated, with the following objections: much discussion. It was sustained by its advo
“ First. The Constiiution bas prescribed cates by precisely the same arguments now that representatives shall be apportioned among urged in support of the amendment now under the several States according io their respective consideration. It was then, as now, contend- numbers, and there is no one proportion or die ed, that the true meaning of the Constitution visor which, applied to the respective num. was, that the apportionment should be made, bers of the States, will yield the number and "' as nearly as may be,” according to the num- allotment proposed by the bill. bers of the States. To show that the questionSecond, The Constitution has also provid. we are now considering is the identical ques. ed that the number of representatives shall not tion then considered, discussed, and decided, exceed one for every thirty thousand, which the committee beg leave to make an extract or restriction is, by the context, und by fair and two from the debates of that period. One of obvious construction, to be applied to the sepa. the advocates of the principle of representing rate and respective numbers of the States, and fractions, (N. Niles) “observed that there the bill has alloted to eight of the States more were evidently wanting to complete the sentence than one for every thirty thousand. (of the Constitution] these words, ' as neurly as
"GEORGE WASHINGTON." may be;' with this explanation added, he 'went Upon the return of the bill, accompanied by on to show that the principle of equality would this message, the constitutional majority rebe more strictly adhered to by admitting tius quired to pass it could not be obtained; but, on amendment than by rejecting it; for, if Dela- the contrary, a majority of five of the House ware contains 58,000 inhabitants, 28,000'were voted against it, and so it failed to become a certainly nearer to 33,000 than 33,000 were to law. Immediately after the failure of this, a 58,000. He recited other passages of the Con. third bill was brought in, which, adopting a stitution to show that his idea was compatible ratio of 33,000, and rejecting all the fractions with it." Mr. Madison, then a member of the in every state produced by this divisor, passed House of Representatives, in the course of the both Houses of Congress, received the sancdebate, expressed his opinion in the following tion of the President, and so became a law, strong language: “We are called on to vio- which gave the first apportionment of repre. late the Constitution, by adopting a measure sentalives under the Constitution. that will give representatives for these sepa The committee are aware that it has been rate and distinci fractions in the respective urged in argument, that the chief, if not the States, and afterwards are told it is not io the sole reason why President Washington refused fractional numbers in the States that they refer, to approve the bill containing the principle of but to the aggregate of the fractions in the giving a representative to fractions, was, be. United States. If this reasoring is good, wby cause that bill allotted to some of the States do the gentlemen stop at this boundary of a re- more representatives than one for every 30,000 presentation by Siates? why not proceed to of their people, and that this objection does not erect the whole of the United States into one apply to the amendment now under consideradistrict, without any division, in order to pre- tion. The committee are not of that opinion. vent the inequality they conceive to exist in It is admitied that the second objection does not