Monday, June 11, 2007

"according to some equitable ratio of representation"

220 years ago today the founders at the Constitutional Convention passed a resolution to represent We the People in the new government "according to some equitable ratio of representation." Without question, this was a revolutionary idea - and one they made constitutional.

Here is an excerpt from my book Article the first of the Bill of Rights on the story of the "equitable ratio of representation":
The gathering in Philadelphia took a turn that some thought too much: instead of working on “fixing” or reforming the current government – the Articles of Confederation – the mood and momentum turned toward a new form of government altogether. You can see this change in the records from the convention. The convention began on 25 May. By 11 June, the first major change was underway. That was when the founders first passed a resolution on changing from the old system, equal representation and one state, one vote, to a new system and the “ratio of representation”:

Resolved that the right of suffrage in the first branch of the national Legislature ought not to be according to the rule established in the articles of confederation; but according to some equitable ratio of representation.[1]

The resolution passed. Seven states were for the change, three against, and the Maryland delegation divided. (That accounts for 11 of the 13 votes – as Rhode Island and New Hampshire did not have delegates present on this day.) In less than three weeks, the convention had made a fundamental change in the distribution of power: the new government would be based on “some equitable ratio of representation.”

This was not the first time a ratio had been proposed in the colonies for representation. On 7 October 1777, the Continental Congress, discussing the terms of the Articles of Confederation, had voted against two proposed representation ratios. One proposed ratio was one representative for every 50,000 inhabitants; the other was one for every 30,000 inhabitants. On this day, the newly independent states agreed to a third proposal for representation – the one state, one vote compromise – with only Virginia in dissent.[2] So the concept of a ratio for representation was familiar to the founders in 1787.

Two other votes of interest that day included one on ‘who was to be counted and how?’ as well as ‘what to do with the second branch of the national legislature?’ On the first question – Who counted and how? – They passed a resolution stating, “that the right of suffrage in the first branch be according to the whole number of white and three fifths of the other inhabitants.” This passed with nine for and two against – the states voting against were Delaware and New Jersey. The “three fifths” concept was also familiar to the founders: it had appeared in the Second Continental Congress, 18 April 1783, in an act to amend the Articles of Confederation. They used the measure to tax slaves as property. In effect, they created a 40 percent exemption by allowing “two fifths” of a slave to not be taxed as property.[3]

At the time, the influential Elbridge Gerry of Massachusetts offered a clear criticism of counting slaves in representation. Many other northerners would do the same. The slave representation, until its removal by the Fourteenth Amendment, would play the pivotal role in the federal government. From the beginning, some saw the problem. Here Gerry was forthright:

The idea of property ought not to be the rule of representation. Blacks are property, and are used to the southward as horses and cattle to the northward; and why should their representation be increased to the southward on account of the number of slaves, than horses or oxen to the north?[4]

This is a concise critique: the convention did address slavery even if the word is absent from the final document. Gerry and others were openly critical of counting property, slaves, in representation. In terms of power, this was a clear benefit to the slave states. It added “three fifths”, or 60 percent, to their total state representation. In terms of representation, slaves meant more power.

After Gerry spoke, it was Madison’s turn: he deflected. Madison, a slave owner, as were many others in the room, said he was of the “opinion at present, to fix the standard of representation, and let the detail be the business of a subcommittee.”[5]

On the second question – How to represent the second branch? – They voted for a resolution making the right of suffrage in the second branch just like the first – based on an equitable ratio. It passed with a vote of six for and five against. The equitable ratio for the second branch, the future Senate, became the one we are familiar with – two Senators per each state in the Union.

[1] Farrand’s Records, 1:192. Italics added.
[2] See de Grazia, 84.
[3] Joseph Story, ed., Commentaries on the Constitution of the United States, (Boston: 1833; rev. ed. 1991,), 2:641. Available online on The Founders’ Constitution website: Philip B. Kurland and Ralph Lerner, eds., University of Chicago Press, 2000.
[4] Farrand’s Records, 1:205-206.
[5] Ibid.

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