From Southwest Ledger
Article I, Section II of the United States Constitution deals with the U.S. House of Representatives. A previous article discussed qualifications for membership in the House and the methods used for choosing representatives. In Clause III of Section II, the framers more instruct how the members of the House are to be divided among states. This is a longer clause, and much of it has been amended, but it is also possibly the most controversial clause in the entire Constitution.
Clause III of Section II reads, “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.”
This clause, known as the ‘Enumeration Clause,’ reflects the “Great Compromise” that members of the House are to be chosen based on their state’s population. More populated states have more power, but the power may shift every 10 years as the states’ population changes. This is important as new states are able to compete with the original 13 down the road. It also determines that taxation is decided on the same basis. The Enumeration Clause makes a point to show that the federal government—and not the individual states—will conduct the census to better guarantee its accuracy. The clause directs the first census be made in 1790, and every 10 years after, 1800, 1810, 1820 and so on.
There has been some debate over the years regarding whether the census can and should ask demographic questions or should it just be a count, an enumeration. Recently the big question is “can the census ask about citizenship?” In 2019, the U.S. Supreme Court ruled in the Department of Commerce v. New York that the Enumeration Clause affords virtually limitless authority to Congress in conducting the census. The Court found that the very first census was used to collect information—which I will add that every historian and genealogist is grateful for—and as such, collecting data does not go against the spirit of the clause.
Now for the controversial part. If you have ever heard that the Constitution is racist, this is often the part referred to. Clause III is specific on who counts toward population. “[A]dding 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.” So, everyone—men, women and children—is included, including indentured servants who signed a contract to work for a landowner for a specific number of years in exchange for passage to America. This was not as common by 1789, but there were enough to be included in the Constitution. Back in the 1600s indentured servitude was a much larger practice.
Excluded from the population count were Indians who were seen as sovereign subjects to their own tribes and not American citizens. Even when we get to the 14th Amendment, it reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The “subject to the jurisdiction thereof” means not Indians who were subject to different jurisdiction. Later on, the amendment specifically mentions that Indians should not be counted for population. It will not be until 1924, exactly a 100 years ago, that Natives were given citizenship and allowed to vote and be counted for representation.
Even more controversial is the “three fifths of all other Persons” part. Who were the other Persons? Slaves. A word the Founders will never actually use in the Constitution even though they are mentioned three times. According to the document, slaves where only worth three-fifths of a free man. It is a fight that came out of an earlier disagreement while our country was still under the Articles of Confederation. Taxation was based on land value so states undervalued their property to pay less in federal taxes. When they debated to change taxation to be based on population, the South did not want their slaves counted so they could pay less in taxes.
The North and South argued over the slave population, and it was ultimately determined that three of every five slaves would count for taxation. While the tax proposal was defeated when the argument came up again for representation, this time the South changed their minds and wanted all their slaves to be counted. When the North balked, the same compromise was applied at three of every five. The Three-fifths Compromise remained in place until slavery ended in 1865, but its affects were long-lasting.
The rest of the Enumeration Clause is straightforward. Each state must have at least one representative—Wyoming, Vermont, D.C., Delaware and the Dakotas today still only have one apiece; all other states were assigned a certain number of representatives. These congressional allocations would last until after the first census when representation could be properly divided based on population.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com.
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