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Apportionment and the First Presidential Veto

I love history and recently I have been researching congressional apportionment.  But what you ask, is apportionment?  According to Merriam Webster’s online dictionary, one of the definitions is to “divide and share out according to a plan.”   I can see how this might apply to pizza and pie but what does this have to do with Congress?  To answer that question, I turn to one of  my favorite documents, the Constitution of the United States of America.  Article I covers Congress, its composition and its powers and duties.  According to Article I, section  3, clause 1 every state is to have have two senators.  However, there is no set figure for the number of representatives per state.  Rather Article I, Section 2, Clause 3 of the U.S. Constitution provides a method for calculating the number of representatives on a regular basis:

Representatives … 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;

This means that, based on the number of persons in each state as determined by a census, Congress is directed to pass a law which will calculate the number of representatives per state.  This is known as apportionment.  This constitutional clause instructed Congress to conduct the first census within its first three years (1798-1792), and then conduct a census every ten years thereafter in order to apportion representatives as the populations in each state might grow or diminish.  This apportionment of representatives was to be embodied in a law – “as they shall by Law direct.”

Although Congress had three years from the date of its first meeting (September 1789) to conduct a census, the first census was conducted in 1790.  Based on the information from this first census, Congress passed a bill apportioning representatives in every state and presented the bill to President Washington on March 26, 1792.  The bill provided a total number of members for the House and listed the number of members per state:

Be it enacted … That, … the House of Representatives shall be composed of one hundred twenty members, elected within the several States, according to the following apportionment, that is to say: With the State of New Hampshire, five; with the State of Massachusetts, sixteen; .. Vermont, three; … Rhode Island, two; … Connecticut, eight; … New York, eleven; … New Jersey, six; … Pennsylvania, fourteen; … Delaware, two; … Maryland, nine; … Virginia, twenty-one; … Kentucky, two; … North Carolina, twelve; … South Carolina, seven; … Georgia, two.

However President Washington was concerned about the constitutionality of Congress’ method of apportionment.  At issue were two differing methods of calculating the apportionment.  One is known as the Hamilton/Vinton method.  The other is the Jefferson method and was suggested by Thomas Jefferson.  Congress had followed the Hamilton method in its first apportionment legislation.  On April 5, 1792 Jefferson provided the president with a draft memorandum with a rational for vetoing the bill.  Persuaded by this argument, President Washington exercised the veto power granted to him in the Constitution and sent a message to Congress on the same day.  This message vetoed the bill and explained his reasons for the veto.  On the following day, April 6, 1792, the House of Representatives proceeded to debate and a vote to override the veto.  They were not successful in voting to override the veto by the necessary two-thirds vote.  Later in the month, Congress drafted and passed another apportionment bill specifying 105 seats, which the president approved and which became law on  April 14, 1792 (ch. XXIII, 1 Stat. 253).  On the average, this law reduced the number of members by one or two for each state except Rhode Island, Kentucky and Georgia.  The Jefferson method for apportionment of members continued to be used through the 1830 census, but after that different methods were employed until after the 1940 census when in 1941 when Congress passed a law (ch. 470, 55 Stat. 761) providing for the automatic apportionment of representatives according to the Huntington-Hill Method.

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