Chapter: The Apportionment of Members Among the States

From the New York Packet. Tuesday, February 12, 1788.

MADISON

To the People of the State of New York:

THE next view which I shall take of the House of Representatives relates
to the appointment of its members to the several States which is to be
determined by the same rule with that of direct taxes.

It is not contended that the number of people in each State ought not
to be the standard for regulating the proportion of those who are to
represent the people of each State. The establishment of the same rule
for the appointment of taxes, will probably be as little contested;
though the rule itself in this case, is by no means founded on the same
principle. In the former case, the rule is understood to refer to the
personal rights of the people, with which it has a natural and universal
connection. In the latter, it has reference to the proportion of wealth,
of which it is in no case a precise measure, and in ordinary cases a
very unfit one. But notwithstanding the imperfection of the rule as
applied to the relative wealth and contributions of the States, it is
evidently the least objectionable among the practicable rules, and had
too recently obtained the general sanction of America, not to have found
a ready preference with the convention.

All this is admitted, it will perhaps be said; but does it follow, from
an admission of numbers for the measure of representation, or of slaves
combined with free citizens as a ratio of taxation, that slaves ought
to be included in the numerical rule of representation? Slaves are
considered as property, not as persons. They ought therefore to be
comprehended in estimates of taxation which are founded on property,
and to be excluded from representation which is regulated by a census of
persons. This is the objection, as I understand it, stated in its full
force. I shall be equally candid in stating the reasoning which may be
offered on the opposite side.

"We subscribe to the doctrine," might one of our Southern brethren
observe, "that representation relates more immediately to persons, and
taxation more immediately to property, and we join in the application of
this distinction to the case of our slaves. But we must deny the
fact, that slaves are considered merely as property, and in no respect
whatever as persons. The true state of the case is, that they partake of
both these qualities: being considered by our laws, in some respects, as
persons, and in other respects as property. In being compelled to labor,
not for himself, but for a master; in being vendible by one master to
another master; and in being subject at all times to be restrained
in his liberty and chastised in his body, by the capricious will of
another--the slave may appear to be degraded from the human rank,
and classed with those irrational animals which fall under the legal
denomination of property. In being protected, on the other hand, in
his life and in his limbs, against the violence of all others, even the
master of his labor and his liberty; and in being punishable himself for
all violence committed against others--the slave is no less evidently
regarded by the law as a member of the society, not as a part of
the irrational creation; as a moral person, not as a mere article
of property. The federal Constitution, therefore, decides with great
propriety on the case of our slaves, when it views them in the mixed
character of persons and of property. This is in fact their true
character. It is the character bestowed on them by the laws under
which they live; and it will not be denied, that these are the proper
criterion; because it is only under the pretext that the laws have
transformed the negroes into subjects of property, that a place is
disputed them in the computation of numbers; and it is admitted, that
if the laws were to restore the rights which have been taken away, the
negroes could no longer be refused an equal share of representation with
the other inhabitants.

"This question may be placed in another light. It is agreed on all
sides, that numbers are the best scale of wealth and taxation, as they
are the only proper scale of representation. Would the convention have
been impartial or consistent, if they had rejected the slaves from
the list of inhabitants, when the shares of representation were to
be calculated, and inserted them on the lists when the tariff of
contributions was to be adjusted? Could it be reasonably expected, that
the Southern States would concur in a system, which considered their
slaves in some degree as men, when burdens were to be imposed, but
refused to consider them in the same light, when advantages were to be
conferred? Might not some surprise also be expressed, that those who
reproach the Southern States with the barbarous policy of considering as
property a part of their human brethren, should themselves contend,
that the government to which all the States are to be parties, ought to
consider this unfortunate race more completely in the unnatural light of
property, than the very laws of which they complain?

"It may be replied, perhaps, that slaves are not included in the
estimate of representatives in any of the States possessing them. They
neither vote themselves nor increase the votes of their masters. Upon
what principle, then, ought they to be taken into the federal estimate
of representation? In rejecting them altogether, the Constitution would,
in this respect, have followed the very laws which have been appealed to
as the proper guide.

"This objection is repelled by a single observation. It is a fundamental
principle of the proposed Constitution, that as the aggregate number of
representatives allotted to the several States is to be determined by
a federal rule, founded on the aggregate number of inhabitants, so the
right of choosing this allotted number in each State is to be exercised
by such part of the inhabitants as the State itself may designate. The
qualifications on which the right of suffrage depend are not, perhaps,
the same in any two States. In some of the States the difference is
very material. In every State, a certain proportion of inhabitants are
deprived of this right by the constitution of the State, who will be
included in the census by which the federal Constitution apportions the
representatives. In this point of view the Southern States might
retort the complaint, by insisting that the principle laid down by
the convention required that no regard should be had to the policy of
particular States towards their own inhabitants; and consequently, that
the slaves, as inhabitants, should have been admitted into the census
according to their full number, in like manner with other inhabitants,
who, by the policy of other States, are not admitted to all the rights
of citizens. A rigorous adherence, however, to this principle, is waived
by those who would be gainers by it. All that they ask is that equal
moderation be shown on the other side. Let the case of the slaves be
considered, as it is in truth, a peculiar one. Let the compromising
expedient of the Constitution be mutually adopted, which regards them as
inhabitants, but as debased by servitude below the equal level of free
inhabitants, which regards the SLAVE as divested of two fifths of the
MAN.

"After all, may not another ground be taken on which this article of the
Constitution will admit of a still more ready defense? We have hitherto
proceeded on the idea that representation related to persons only, and
not at all to property. But is it a just idea? Government is instituted
no less for protection of the property, than of the persons, of
individuals. The one as well as the other, therefore, may be considered
as represented by those who are charged with the government. Upon this
principle it is, that in several of the States, and particularly in
the State of New York, one branch of the government is intended more
especially to be the guardian of property, and is accordingly elected
by that part of the society which is most interested in this object of
government. In the federal Constitution, this policy does not prevail.
The rights of property are committed into the same hands with the
personal rights. Some attention ought, therefore, to be paid to property
in the choice of those hands.

"For another reason, the votes allowed in the federal legislature to the
people of each State, ought to bear some proportion to the comparative
wealth of the States. States have not, like individuals, an influence
over each other, arising from superior advantages of fortune. If the
law allows an opulent citizen but a single vote in the choice of his
representative, the respect and consequence which he derives from his
fortunate situation very frequently guide the votes of others to the
objects of his choice; and through this imperceptible channel the
rights of property are conveyed into the public representation. A State
possesses no such influence over other States. It is not probable that
the richest State in the Confederacy will ever influence the choice of
a single representative in any other State. Nor will the representatives
of the larger and richer States possess any other advantage in the
federal legislature, over the representatives of other States, than what
may result from their superior number alone. As far, therefore, as their
superior wealth and weight may justly entitle them to any advantage, it
ought to be secured to them by a superior share of representation. The
new Constitution is, in this respect, materially different from the
existing Confederation, as well as from that of the United Netherlands,
and other similar confederacies. In each of the latter, the efficacy
of the federal resolutions depends on the subsequent and voluntary
resolutions of the states composing the union. Hence the states,
though possessing an equal vote in the public councils, have an unequal
influence, corresponding with the unequal importance of these subsequent
and voluntary resolutions. Under the proposed Constitution, the
federal acts will take effect without the necessary intervention of the
individual States. They will depend merely on the majority of votes in
the federal legislature, and consequently each vote, whether proceeding
from a larger or smaller State, or a State more or less wealthy or
powerful, will have an equal weight and efficacy: in the same manner
as the votes individually given in a State legislature, by the
representatives of unequal counties or other districts, have each a
precise equality of value and effect; or if there be any difference in
the case, it proceeds from the difference in the personal character of
the individual representative, rather than from any regard to the extent
of the district from which he comes."

Such is the reasoning which an advocate for the Southern interests
might employ on this subject; and although it may appear to be a little
strained in some points, yet, on the whole, I must confess that it fully
reconciles me to the scale of representation which the convention have
established.

In one respect, the establishment of a common measure for representation
and taxation will have a very salutary effect. As the accuracy of the
census to be obtained by the Congress will necessarily depend, in a
considerable degree on the disposition, if not on the co-operation, of
the States, it is of great importance that the States should feel as
little bias as possible, to swell or to reduce the amount of their
numbers. Were their share of representation alone to be governed by this
rule, they would have an interest in exaggerating their inhabitants.
Were the rule to decide their share of taxation alone, a contrary
temptation would prevail. By extending the rule to both objects, the
States will have opposite interests, which will control and balance each
other, and produce the requisite impartiality.

PUBLIUS

 Madison defends the constitution's system for apportioning representatives among the States according to population. He also discusses the decision to count slaves as three-fifths of a person. He gives several reasons for the compromise: that the laws regard slaves as both property and persons; that southern states would consider it unfair to include slaves in calculating tax burdens but not for the number of representatives apportioned to the states; and that it would take into account the different levels of wealth of the states. Madison admits that this reasoning is somewhat of a stretch; however, it asserts that it was a "compromising expedient" necessary to pass a constitution acceptable to all states. Finally, Madison suggests that by basing both taxes and number of representatives on population, the Constitution ensures states do not have an incentive to manipulate the numbers. If states claim too small a population, they will benefit in terms of taxes, but suffer in terms of the number of representatives they are allotted.

