{ subscribe_url: '/share/sites/library-of-congress-blogs/law.php' }

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.

2 Comments

  1. Scott Neuman
    November 7, 2014 at 8:15 pm

    Interesting read. I’m surprised you didn’t mention the Congressional Apportionment Amendment of the Bill of Rights but you also might not have been familiar with it since our Government has worked hard since the 1850’s to remove it from our history. Two years ago, the Library of Congress displayed the 12 amendments from the Bill of Rights and mentioned that if the amendment was ratified by 75% of the states (or rounded up like most amendments) we’d have 6300 Representatives. The amendment only allowed for local representatives and created a plan to lower the amount of the Representatives per population per district but equal across the states. When the Country hit 8,000,000 people, the districts were to be locked at 50,000 per district. This destroyed Gerrymandering also would have the affect of lowering the cost to run for office. Today, Citizens United would take a major punch in the face from this amendment. Here comes the fun part. You can search till you are blue in the face and you won’t find what states did and did not vote for this amendment based on “History”. I say that because the amendment was short 1 states vote with Georgia, Connecticut, Massachusetts and Georgia. Four States. So if any of the four states voted, we’d have a ratified amendment. Turns out, Connecticut did vote and passed all 12 amendments in 1790. The vote was filed in 1788 with Revolutionary War documents. We aren’t sure why that happened but in 2011. the vote was discovered and the archivist of Connecticut certified the vote (he was stunned it existed). Here comes more fun. Jefferson thought it was ratified. So there can be no disagreement. Connecticut voted yes for all 12 amendments. This is plain history. Our 15th State was Kentucky. They also voted for all 12 amendments in 1792. What again was special is no one asked Kentucky if they voted. Notification isn’t needed to have an amendment from the Bill of Rights ratified. Just the vote. The 11th amendment was ratified for 3 years by vote before anyone knew it passed. Time is not a reason to not accept a ratified amendment. Congress also has no say in the matter which is way the 2nd of the 12 amendments, when enough states were to have found to have voted for it, was than presented to the Archivist of the USA who presented it to Congress in 1992 and we had the 27th Amendment to the Constitution. At this point, and with Kentucky and Connecticuts votes counted, we have 80% of the states voting for the Congressional Apportionment Amendment. The amendment only needs to be presented to Congress at this point and we’ll have our 28th Amendment to the Constitution. At that point, based on the census, we’ll have to make a little room and get much better representation and kill of Gerrymandering. This will open the door for more independents that aren’t bought and paid for by big corporations and can focus more on the Middle Class in the USA. The way the amendment was meant to be followed. There will be push back. No one wants to give up power but if you are willing to stand for the amendment of the Bill of Rights, picking and choosing isn’t an option. Scott Neuman – Democratic Republican Organization of NJ. Google Ratified Congressional Apportionment Amendment for the true bold facts. There are some sites popping up trying to make you believe this isn’t ratified. It is. Now what???

  2. Margaret Wood
    November 14, 2014 at 1:58 pm

    Thank you for your comments. For more information on the history of the Bill of Rights you can go to the National Archives website. They provide information about the original 12 proposed amendments you can go. The Archives website also has a more in-depth page with information about the Constitutional Convention, the draft Constitution and the Bill of Rights. If you would like to read the debates in Congress concerning the Bill of Rights you can find them through the Library of Congress’ website, A Century of Lawmaking for a New Nation in the Annals of Congress. James Madison introduced a proposed Bill of Rights on June 8, 1789: see the bottom of page 440 for the first volume of the Annals for the beginning of these debates. After debate, Congress approved 12 amendments to the Constitution which were then sent to the states for Ratification.

Add a Comment

This blog is governed by the general rules of respectful civil discourse. You are fully responsible for everything that you post. The content of all comments is released into the public domain unless clearly stated otherwise. The Library of Congress does not control the content posted. Nevertheless, the Library of Congress may monitor any user-generated content as it chooses and reserves the right to remove content for any reason whatever, without consent. Gratuitous links to sites are viewed as spam and may result in removed comments. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on the Library site. Read our Comment and Posting Policy.

Required fields are indicated with an * asterisk.