The Congressional Apportionment Clause

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.

—Michael R. Dimino

Introduction

The Framers’ “Great Compromise” yielded a Senate with equal representation for all states and a House of Representatives with seats allocated by population. The adoption of a population-based House led to two important questions: How many Representatives would there be in the new Congress, and how many people would a state have to gain, or lose, before its allocation of congressional seats would be altered? The Apportionment Clause established the states’ initial allocation of House seats pending the first census, which would be conducted in 1790. The clause mandated that at least one Representative be allocated to each state. It also provided that a congressional district must have at least 30,000 persons, although, because of the Three-Fifths Clause (see Essay No. 9), not every resident was counted as a full person.

History Before 1787

Under the Articles of Confederation, each state was represented in Congress by between two and seven delegates, yet the Articles specified that “each state shall have one vote.”¹ Thus, the number of delegates representing each state did not affect the state’s voting power in Congress, as each state’s voting power was equal to that of every other state. This system created some resentment because it meant that more populous states had the same voting power as less populous states. The Constitution would remedy this problem, at least in part.

The Constitutional Convention

Early in the Philadelphia Convention, Edmund Randolph’s Virginia Plan proposed that states be allocated votes in Congress based on their respective populations.² Small states objected that population-based apportionment would result in a national government that favored the interests of more populous states. The competing New Jersey Plan offered by William Paterson would have created a one-house Congress in which each state had equal representation.³ The conflict was resolved with the adoption of the so-called Great Compromise, which called for a two-house Congress: a House of Representatives with representation based on population and a Senate with equal representation for each state.⁴

The draft version of the Apportionment Clause had provided that Congress would “regulate the number of representatives by the number of inhabitants, according to the rule hereinafter made for direct taxation. . . .”⁵ When the Committee on Style subsequently combined the Apportionment and Direct Taxation Clauses, the result was the language that appears in the ratified Constitution.⁶

The Apportionment Clause provides that population should be the basis for representation in the House but does not specify how population is to be used to allocate seats. Instead, the clause places some limits on the method of apportionment, including the requirement that each state be allocated at least one Representative.

Further, the clause provides that “[t]he Number of Representatives shall not exceed one for every thirty Thousand.” By contrast, some of the state legislatures in the late eighteenth century had much-smaller districts. For example, in 1776, the New Hampshire House of Representatives had 87 members—one for every 100 families.⁷

The meaning of “shall not exceed one for every thirty Thousand” is not entirely clear. Professor David Currie has argued that the “most natural reading” of the Apportionment Clause is as a limit on “the total number of seats” in the House.⁸ For example, if the population of the United States was three million people, the House could have no more than 100 members, and Congress could allocate those members however it saw fit as long as each state had at least one member.

The generally accepted view, however, is that 30,000 represents the smallest number of constituents that can be assigned to a single Representative. In other words, a district with a single Representative cannot have fewer than 30,000 constituents. Under this prevailing interpretation, the Apportionment Clause not only effectively places an upper limit on the size of the House, as Professor Currie suggested, but also imposes a lower limit on the size of each district.

As a result of a compromise among the Convention’s delegates, the House of Representatives in the First Congress would have sixty-five members: eight each for Massachusetts and Pennsylvania; one each for Delaware and Rhode Island; three each for New Hampshire and Georgia; four for New Jersey; five each for Connecticut, North Carolina, and South Carolina; six each for New York and Maryland; and ten for Virginia.⁹

The Ratification Debates

Some opponents of the Constitution complained that the Apportionment Clause would require districts to be so large that Representatives would be unable to reflect the variety and interests of their constituents. One New York Anti-Federalist, the Federal Farmer, argued that “free and good government” required “full and equal representation of the people in the legislature.”¹⁰ As a result, he contended, the legislature should have “the same interests, feelings, opinions, and views [of] the people themselves.”¹¹ More specifically, he argued that the House should be much larger so that it could include “a just proportion” of “professional men, merchants, traders, farmers, mechanics, etc.”¹² In Pennsylvania, members of the minority anti-ratification faction warned that the people chosen for service in a small House would disproportionately be “men of the most elevated rank in life.”¹³ They argued that even the most democratic part of the proposed national government—the House—would not sufficiently represent the interests of the common people.

Still other Anti-Federalists warned that the House could have even fewer members. While there could not be more than one Representative for every 30,000 people under the Apportionment Clause, there was nothing in the Constitution to prevent House districts from being even larger (for example, one representative for every 100,000 residents), meaning that the House could have even fewer than 65 members after the first census.¹⁴ Melancton Smith, another prominent Anti-Federalist, argued that a small House “would be more liable to corruption” than a larger one would be.¹⁵

James Madison responded to these arguments. In Federalist No. 58, he argued that the size of the House was likely to increase greatly as the population of the United States grew over the ensuing decades. More importantly, he defended large House districts that represented many constituents in terms that echoed his famous defense of large republics in Federalist No. 10. Contrary to Smith’s argument that a large legislative body would be security against corruption, Madison maintained that a large legislative body would be controlled by a small number of leaders. In Federalist No. 55, Madison observed that a larger number of districts would have a greater tendency to be consumed with “the confusion and intemperance of a multitude.” With an increase in the number of members of the legislature, he added in Federalist No. 58, “[t]he countenance of the government may become more democratic; but the soul that animates it will be more oligarchic.” The optimal number, then, required a balance, as Madison explained in Federalist No. 55. On the one hand, a House with too few members could make it easy for Representatives to act corruptly and would fail to represent the country’s different interests. On the other hand, a House with too many members would risk the “confusion and intemperance of a multitude.” Madison memorably warned that in large assemblies, “passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob.”

Responding to the Anti-Federalists’ argument that a larger House would better represent society’s differing interests, Madison argued in Federalist No. 58 that “the larger the number [of Representatives], the greater will be the proportion of members of limited information and of weak capacities.” Madison also made an argument grounded in federalism. He explained in Federalist No. 56 that members of the House needed to represent their constituents’ views only as to matters within the jurisdiction of the national government. In Federalist No. 45, he contended that the national government would be limited to its “few and defined” powers. He surmised that because the number of congressional seats would be small, the chosen Representatives would likely be experienced politicians familiar with attitudes and interests throughout their states. That small number of elite Representatives, Madison wrote in Federalist No. 56, would have a “sufficient degree” of knowledge concerning the matters within the national government’s competence.

Early Practice

The first census was taken in 1790 and 1791 and reported a U.S. population of 3.9 million.¹⁶ The sixty-five members of the House that assembled in 1789 increased to 105 members in 1791. The first proposed amendment to the Constitution would have required an expansion of the House as the nation’s population grew, but that amendment was never ratified.¹⁷

Congress sought to allocate one Representative for every 30,000 people—the smallest districts (and therefore the greatest number of Representatives) permitted by the clause. Because state populations were not evenly divisible by 30,000, however, the question arose of what to do with the remainder. If a state had a population of 135,000, should it receive four Representatives or five? Should a state with 90,000 residents receive the same representation as a state with 119,999 residents?

Congress’s 1792 apportionment bill granted an extra Representative to nine states with the largest “remainders”—that is, those whose populations were more than the number necessary to entitle them to a certain number of representatives but not quite large enough to entitle them to another.¹⁸ That bill was vetoed by President George Washington.¹⁹ (In fact, it was the first bill vetoed under the Constitution and one of only two that Washington vetoed during his presidency.) Washington’s veto message explained that the bill exceeded the ratio of one Representative for every 30,000 constituents.²⁰ The apportionment that was subsequently adopted awarded one Representative for every 30,000 people, disregarding fractional remainders.

Modern Practice

America’s population expansion soon made it impractical to have one Representative for every 30,000 people. As a result, the total number of Representatives was limited to 105 Representatives and periodically raised to account for population expansion. The limit was set at 435 in 1929 and, except for a brief period when Alaska and Hawaii were admitted as states, has remained in place ever since then.²¹ Accordingly, the number of constituents per district has increased significantly: The average size of a congressional district is now more than 750,000 persons.

There is no danger that the Apportionment Clause will ever be violated by congressional districts that have too few people. To the contrary, the vast increase in population since 1787 has rendered that provision almost ludicrous in the twenty-first century. If there still was one Representative for every 30,000 people, the House of Representatives would contain 11,000 members. The Apportionment Clause provides only a minimum number of constituents; there is no upper limit on the number of people the districts may contain.

The 435-Representative cap also does not mandate how many Representatives each state shall have. The Apportionment Clause requires that each state have at least one Representative, but there are several ways that the remaining 385 Representatives might be allocated. For example, a system might require each district to have 1,000,000 people, with states not receiving a second Representative until their populations reached 2,000,000. In such a system, a state with 1,000,000 people and a state with 1,999,999 people would each receive one Representative. Alternatively, a state’s population could be rounded up or down so that states with fewer than 1,500,000 people would receive one Representative, while states with between 1,500,000 and 2,499,999 people would receive two members each.

In 1941, after a century of wrangling over the matter, Congress adopted the “method of equal proportions” for allocating House seats.²² Under this complicated method, the goal is to minimize the relative (not absolute) difference in average population per district.²³ “Relative” in this sense means that the population of the smaller district is subtracted from the population of the larger district and the difference is then divided by the size of the smaller district.²⁴ Thus, the method of equal proportions would require a seat to be moved from State A to State B if that would reduce the relative difference in the average sizes of the states’ districts.

To understand the method of equal proportions, consider a simplified version of the facts of Department of Commerce v. Montana (1992), which is discussed below. After the 1990 census, the population of the 50 states was divided by 435 members to yield an average ideal district size of 570,000. Montana had a population of 800,000 and was given one Representative. Its single district thus had 230,000 more people than the ideal district. Had Montana been given two Representatives, each of those 400,000-person districts would have been closer to the ideal district than its actual single district was. Washington State, on the other hand, was given eight districts with an average population of 540,000 people—only 30,000 fewer than the ideal size. If Washington had seven districts, each of those districts would have had 610,000 people—40,000 more than the ideal. Accordingly, a different method of allocating Representatives could have improved absolute population equality by giving Montana an extra district and taking one away from Washington. This would have meant that the two states’ districts would have had a population difference of 210,000 (610,000 minus 400,000) rather than the actual difference of 260,000 (800,000 minus 540,000). Nevertheless, such a shift would have increased the relative difference because the relative difference between Washington and Montana districts would have been 0.525 with a second Montana district, compared to 0.481 with a single Montana district. Given these numbers, under the method of equal proportions, Montana properly received one member, and Washington received eight members.

Judicial Precedent

In Department of Commerce v. Montana, the U.S. Supreme Court considered a challenge to the equal-proportions method.²⁵ Montana demonstrated that the method resulted in the state receiving one fewer Representative than it would have received if Congress had used a different formula for dealing with fractional remainders.

The Court unanimously held that Congress had the constitutional authority to use the method of equal proportions. Inevitably, some methods produce smaller disparities in absolute numbers of district residents, and other methods produce smaller disparities in relative sizes of districts. As a result, the Court observed, the choice of one method over the other is bound to lead to an allocation of congressional seats that leaves some states unhappy. The Court explained that “[t]he polestar of equal representation does not provide sufficient guidance to allow us to discern a single constitutionally permissible course.”²⁶ The choice was left to Congress’s discretion.

There also have been legal disputes over the status of Department of Defense employees who temporarily lived overseas. The 1990 census counted those employees as residents of the states where they lived before their overseas assignments, but Massachusetts argued that these employees should not be counted as residents for purposes of apportionment. The Supreme Court upheld the Census Bureau’s decision.²⁷ The Court explained that the decision to count those employees as if they were still living in the states of their prior homes did “not hamper the underlying constitutional goal of equal representation.”²⁸ To the contrary, “assuming that employees temporarily stationed abroad have indeed retained their ties to their home States,” counting those employees would “actually promote[] equality.”²⁹

The Apportionment Clause allocates congressional seats among states but does not give any representation to residents of territories such as Puerto Rico or to residents of the District of Columbia. That difference in representation has been attacked as violating the equal protection component of the Fifth Amendment’s Due Process Clause. These challenges, however, have failed.³⁰ The reviewing courts have noted that it would be anomalous for the allocation of members of Congress (and, relatedly, the Electoral College)—which is, after all, specified in the Constitution itself—to be found unconstitutional.

Open Questions

• Who must be included in the population tally that is the basis of apportionment? Under Section 2 of the Fourteenth Amendment, districts are allocated to states based on their “respective Numbers” of “Persons.” The clause thus implies that the allocation should be made based on the total number of residents rather than on, for example, a more limited subset of people who are eligible to vote. In City of San Jose v. Trump (2020),³¹ a three-judge district court held that the Constitution demanded that a state’s population include all residents, including those present in the United States illegally. The case was not appealed to the Supreme Court.
• Can a 435-member House ably represent the diversity of people and interests in the United States? On the other hand, would a larger House dilute the quality and accountability of the Representatives and, as Madison feared, further increase the power of the leadership at the expense of individual members? In an age when members of the House already give voice to widely divergent governing philosophies, would increasing the number of Representatives exacerbate polarization and make governance even more difficult?

1. 1 Articles of Confederation, art. V, § 4. ↩︎
2. 1 Farrand’s 20–22. ↩︎
3. 3 Farrand’s 611–14. ↩︎
4. 1 Farrand’s 196. ↩︎
5. 2 Farrand’s 566. ↩︎
6. Id. at 590. ↩︎
7. New Hampshire House of Representatives, House History, https://perma.cc/Z2XT-6ZES. ↩︎
8. David P. Currie, The Constitution in Congress: The Second Congress, 1791–1793, 90 Nw. U. L. Rev. 606, 613 (1995). ↩︎
9. Congress Profiles: 1st Congress (1789–1791), U.S. House of Representatives: History, Art & Archives, https://perma.cc/9M9K-6ZMQ; 1 Farrand’s 566–70. ↩︎
10. Storing 2.8.15. ↩︎
11. Id. ↩︎
12. Id. ↩︎
13. Storing 3.11.35. ↩︎
14. Storing 4.13.25, 6.12.8. ↩︎
15. Storing 6.12.9. ↩︎
16. National Archives, 1790 Census Records, at https://perma.cc/R59M-EXGM; U.S. Dep’t of Commerce, United States Census Bureau, Decennial Census History (Oct. 31, 2023), https://perma.cc/YZ49-2L9R. ↩︎
17. National Archives, The Bill of Rights: A Transcription, https://perma.cc/L4XD-24MP. ↩︎
18. 3 Annals of Cong. 482–83 (1792); Currie, supra at 607–15. ↩︎
19. 3 Annals of Cong. 539 (1792). ↩︎
20. H.R. Jour., 2d Cong., 1st Sess. 563–64 (Apr. 5, 1792). ↩︎
21. Permanent Apportionment Act of 1929, 2 U.S.C. § 2a. ↩︎
22. Id. ↩︎
23. Laurence F. Schmeckebier, The Method of Equal Proportions, 17 L. & Contemp. Probs. 302 (1952). ↩︎
24. Dep’t of Com. v. Montana, 503 U.S. 442, 455 n.29 (1992). ↩︎
25. 503 U.S. 442 (1992). ↩︎
26. Id. at 463. ↩︎
27. Franklin v. Massachusetts, 505 U.S. 788 (1992). ↩︎
28. Id. at 806. ↩︎
29. Id. ↩︎
30. Igartua v. United States, 626 F.3d 592 (1st Cir. 2010); Castanon v. United States, 444 F. Supp. 3d 118 (D.D.C. 2020); Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C. 2000). ↩︎
31. 497 F. Supp. 3d 680 (N.D. Cal. 2020). ↩︎