Article 1, Section 2, Clause 3: Apportionment

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.The number of Representatives shall not exceed one for every thirty Thousand, 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 three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

The Apportionment Clause sets forth the principle that Representatives are apportioned by state by population, except that every state is entitled to at least one Representative. The manner in which population is determined is also specified, and, interestingly, there is a requirement that direct taxes must be in proportion to representation. Finally, the clause sets out the initial apportionment of Representatives, necessary because the government under the Articles of Confederation had no authority to conduct a uniform census and the initial apportionment had to rely on state censuses that were not necessarily uniform in their procedures.

Let us deal first with the link between representation and taxation. Direct taxes have been defined by the courts as including capitation taxes, real property taxes, and personal property taxes. Capitation taxes, in turn, are taxes imposed on persons of a certain class (such as adult males) that are a fixed sum for each person. Real and personal property should be familiar concepts to most readers. The Constitution requires that all direct taxes be imposed on the states in proportion to their representation in Congress. This seems straightforward enough for capitation taxes, but for property taxes, it implies that the tax rate must be adjusted from state to state to ensure each state pays total tax in proportion to its representation in Congress. This proved awkward enough to become a major driver of the 16th Amendment establishing an income tax, which in turn broke the close relationship between representation and rate of taxation. We will say more about that when, in due course, we consider the 16th Amendment.

Representation was to be tied as closely as possible to population, except that each State was guaranteed at least one Representative. The effect is that large states have an apportionment quite closely matching their population, but as the population of the state becomes smaller, the match is more irregular. At present, Alaska, Montana, North Dakota, Delaware, South Dakota, Vermont, and Wyoming have one representative, but their population ranges from 578,759 for Wyoming to 1,068,778 to Montana. The Framers accepted that a precise match of population to apportionment was unattainable at the lower end of the population range, except by apportioning a rather large number of Representatives. We are of the view that 435 Representatives is already between a rock and a hard place; large enough to be unwieldy as a deliberative body, small enough that the ratio of Representatives to population (currently about 1:700,000) is undesirably low. Our preference is to sacrifice deliberation in favor of representation closer to the voters, a topic we will discuss further in a future post.

The population was divided into three categories: Free citizens plus indentured servants (the latter constituting “those bound to Service for a Term of Years”); native Americans not regarded as American nationals and not subject to taxation (“Indians not taxed”); and all other persons, which in practice meant slaves. The exclusion of native Americans not subject to taxation from the census is yet another reinforcement of the concept that taxation was to be in proportion to representation, and seems to us not particularly controversial. (This is not to say that relations between the new government and the First Nations generally are not controversial.) The Three-Fifths Compromise has engendered quite a lot of controversy, which is understandable even if we think it can be overstated.

Slavery was an evil that the Constitution did not create and which we believe it did not expand. One can argue that the Constitution ought to have restricted or abolished slavery — but, in fact, both some specific provisions of the Constitution and its overall internal logic worked against slavery from the start. It was the slave states, and not the free states, that ultimately abandoned the Constitution in the crisis of 1860.

The Three-Fifths Compromise was a  political compromise, based on expediency rather than any guiding principle — more so than any other major compromise reached at the Convention. There is a logic to the Great Compromise (creating a bicameral Congress) exceeding its practical political aspects, as we have discussed elsewhere and will discuss again when we consider the Senate. The same is true of other compromises reached at the Convention. The Three-Fifths Compromise stands out precisely because it was unprincipled.

The positions of the two factions were in stark contrast. The northern States would have preferred to have slaves omitted entirely from the population count, on the grounds that so long as they had no vote, they should not give their state any added apportionment of Representatives. We see here that the concept of “one man, one vote” was already taking root in the North. The South wished to have slaves counted like any other member of the population. After all, women and children were included in the census, even though women rarely had the right to vote and children never did. The South was comfortable with the idea that a male voter voted for his entire household, which included his slaves. There is an obvious tension here that was not fully resolved until the passage of the 19th Amendment in 1920. (We maintain that continuing to include children in the census while denying them the right to vote, in effect giving their vote to their elders, is rational and defensible.)

The effect of the compromise politically was to diminish but not eliminate the “slave vote” exercised by southern free citizens. But because taxes were also tied to representation, the effect was also to diminish but not eliminate the tax on slave labor. A slave was taxed at three-fifths the rate of a free citizen (though of course it was his master who payed the tax.) We do not have reliable economic figures for the states of 1787; we doubt they exist; but it is a truism among modern economists that slave labor is much less productive than free labor. It may well be that a slave in 1787 was less than three-fifths as productive as a free citizen, and in general the South of 1787 was likely much poorer on a total per capita basis than the North. So the South arguably lost more economically than it gained politically from the compromise.  If true, this would be ironic justice.

We can be grateful that the Three-Fifths Compromise is now moot, repealed by the 14th Amendment.

Apportionment was to be based on a census that was to be conducted every ten years. Both the manner of the census and the subsequent reapportionment were left to Congress, and in 1920 no reapportionment act was ever enacted. A self-executing statute was enacted in 1941 that fixed the representation at 435 Representatives and ensured that reapportionment would take place automatically.