The United States Constitution Explained - Article 1 - The Legislature: Part 2
Today we continue our deep dive series on the United States Constitution. If you have not read our first post in this series, check it out here – The United States Constitution Explained: Article I - The Legislature: Part 1.
For those of us who read Part 1, Article 1 may seem like it will be a cake-walk. However, the section we will cover today is surrounded by some of the fiercest disinformation and intentional misreadings of any part of the Constitution. The ten-thousand-foot view version of this section is that there will be a House of Representatives consisting of citizens who are elected by the people every two years. Each state will receive a certain number of these based on the population breakdown of each state. This one is a little too large to gain much insight by looking at it as a whole first so let's break it down into its individual clauses.
Section 2 – Clause One
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
This clause is a little convoluted to read, as all legal documents are to people who aren't lawyers, but it is very straightforward in meaning. First, It sets up the two-year terms for Representatives. This was to ensure that they had to be responsive to their electorate and could be changed out frequently so that the district was best represented. Second, it states explicitly that the People will elect the representatives. As we will discuss in Section 3, this differs drastically from how Senators were originally placed in office. Lastly, the clause decrees that anyone eligible to vote for representation in the most numerous branch of the legislature in their State also has the right to vote for their United States Representative. Basically, this passed the power to determine voting eligibility to each State individually. The hope with this section was that the States would expand voting rights separately based on their citizens' morals and ideals. The secondary hope was the pressure of losing citizens to another State where they felt their voice could be heard more readily would encourage other States to follow without needing federal regulation to mandate it. For those of us who are at least causal scholars of American History, we know that this was not effective, and multiple Constitutional Amendments and federal laws were needed to expand the right to vote.
Section 2 – Clause Two
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
To effectively represent the people of a particular state, it is imperative that you are from that state to go home and work with your constituents. In addition, you are better positioned to understand their wants and needs because you are from the same area. One must be a long term citizen to be a Representative because he or she is part of decisions involving tariffs, trade, foreign policy, and declarations of war. There must be no one who is even perceived as partial to another home nation to make our government effective and genuinely sovereign. Also, there needed to be a minimum age, so they set twenty-five so that Representatives would be out on their own, supporting themselves, and mature enough to make decisions that affect the nation.
Section 2 – Clause Three
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.
Ok, so this is the really controversial section. First, I will explain the text, second, I will provide context around the issue from the period, and lastly, I will discuss the current media disinformation surrounding this clause.
Let's dive in! This clause is broken up into three sentences.
The first sentence aims to provide that taxes and representation will be divided amongst the States by their population. To best represent this, it was compromised that they would count all free People, including indentured servants, excluding the American Indians who belonged to their own nations instead of the United States, and including three-fifths of all other People. The phrase "other Persons" was mainly a way of including slaves. Persons and People are specifically capitalized to show that the framers recognized the inherent worth of the people living in the country endowed upon them by their Creator and continued recognition that all government power comes from the People. While the main focus most people place on this clause is around representation, the taxation piece became a major issue in the late 19th century when the National Government tried to institute an income tax. Multiple Supreme Court cases struck down the Constitutionality of an income tax because it did not apply evenly to the States according to their population. The taxation portion of this section was eventually Amended in 1913. Now that we know who will be counted, the second sentence determined how the federal government would do the counting. To ensure that actual population numbers governed the people after the first Presidential election cycle, they said that the first Census must happen within three years of the Congress's meeting to have it done before a Presidential election needed to happen. Actually, it only took one year for Congress to make the laws that governed the Census and Thomas Jefferson to act upon those as Secretary of State and have the first Census in 1790. This sentence also gives Congress the power to change the number of seats as time progresses to best represent the country.
The last sentence provides the minimum number of people needed per representative and ensures that each state will have at least one representative. This was a safeguard put in place so that Rhode Island and Providence Plantation (yes, that was its full name until a referendum that happened just this year in 2020!) would have some representation but not have an unfair amount of representation. Finally, the last part of the final sentence is where the Framers take their best-educated guess at each State's populations and give the initial numbers of representatives for the first election after the Constitution was ratified.
Ok, so now that we know what the text says, let's discuss where the controversy comes in. "and including three-fifths of all other People" The discussions around this phrase were one of the sticking points that almost sunk the hopes for a new US Constitution. To best lay it out, let's walk through the two main plans for setting up the Legislative branch.
While the Virginia Plan and the New Jersey plan expanded much past the legislature's description, to keep things to the point at hand, I am only going to focus on the legislative and representation sections of these plans and the Compromise. We will focus an entire later post on this Compromise in more detail.
The Virginia Plan
The Virginia Plan, proposed by James Madison, called for a bi-cameral legislature like we have today. The difference between our current legislature and this plan is it provided that the numbers of representatives of both houses to be proportional to the total population of each State.
The New Jersey Plan
After the Virginia Plan was proposed, delegates from New Jersey presented a plan that better represented the smaller States. They called for maintaining the unicameral legislature with equal, one-vote, representation for each State that the Articles of Confederation created.
The Connecticut Compromise
Eventually, after much deliberation, the delegates from Connecticut proposed a compromise between the two plans. This Compromise that was adopted became the basis for how our Legislature is constructed today. They called for a lower house with short terms whose numbers were decided by States' population and an upper house with longer terms in office where the States got equal representation.
The Three-Fifths Compromise
Now that they had determined that each State's population would play a role, they needed to agree on who to count. The delegates from Virginia and other large States wanted all human beings counted, including slaves. This would give these States massive influence in Congress, and therefore, they could gain the most power and ensure slavery, which was the basis for their economy, existed for a very long time. The delegates from New Jersey and other smaller States wanted no slaves to be counted, taking some of the power away from the larger states and bringing them closer to equal representation in the House of Representatives. Their main argument was that you cannot, at the same time, consider these people property and then count those who will not be represented the same as free people. For both sides, the other's plan was something they would never sign because it left the power scales unbalanced. After much debate from both sides, they reached an imperfect compromise that would count three-fifths of all people besides free citizens in the population for the purpose of determining representation.
Today, people are consistently using this Compromise as the basis for arguments that The United States has been systemically racist since it's inception. Their opinion is that the Framers specifically wanted to state that black people were less than human and, therefore, only counted as three-fifths of a person. However, when you break this down in the context it was written, that argument doesn't make much sense. Following this same logic, the larger slaveholding states who considered these people property also believed they were equally human and should each be counted in the total population. On the flip side, still following the same logic, smaller states, who wanted to delegitimize and shrink the impact of slavery, and abolitionists, who wished to eradicate slavery, would have believed that slaves should not count as people at all. This logic is absolutely ludicrous because if the abolitionists thought that the slaves were less than human, why would they want slavery eradicated? This is a bad-faith effort to undermine the founding of the nation for political gain.
We here at March Forth will be the first to tell you that the founders, just like you and me, are all less than perfect. We firmly believe that all of mankind are imperfect beings. Obviously, the ideal solution would have been for the Constitution to outlaw slavery and for the larger states to want to join the new nation so eagerly that they would radically change their economies and ways of life to do so. However, in the imperfect world that we live in, this solution was impossible.
As Madison describes in Federalist 10, preserving and the Union created by the Articles of Confederation in the United States Constitution was of paramount importance. We saw this theory proven correct during the American Civil War. Because the Framers knew that threats caused by separate factions on the same soil pose a much graver threat to American lives than the vast majority of foreign conflicts, they had to make compromises to preserve the Union. This Compromise allowed them to do so while also laying the foundations to fight against the moral evil of slavery.
Both bad-faith attacks and good-faith misunderstandings of this portion of the Constitution intensify America's societal and racial divide. We started this blog to attempt, through education, to heal this divide and help people understand that we can celebrate the Founders and Framers for what they worked to achieve and work to understand their logic while still criticizing them where it is necessary. Our belief is that a group of imperfect men sat down and made the promise of a nation that would recognize that all of mankind was created equal in the eyes of their Creator. Because these men were imperfect and, in turn, we are imperfect, we know that the nation has not always lived up to this promise but has continued to evolve to better fully represent this idea.
Section 2 – Clause Four
When vacancies happen in the representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
Now that I am off of my soapbox let's continue on. The issue of vacancies in the House of Representatives could easily be overlooked because the terms are only two years in length. If, for example, a Representative dies, resigns, or is removed eighteen months in, it would be silly to worry about filling that vacancy for such a short time. However, if the same vacancy happened one month in, it would leave a group of citizens unrepresented for almost an entire term. Clause Four was added to empower the States to have special elections to ensure these seats stay filled, and all citizens are represented.
Section 2 – Clause Five
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Once again with the changes to the English language! If you read the Preamble post, then you know how frustrated I get with spelling changes, and how I feel for non native English speakers because who would think that words would consistently change like this! I think I am going to start spelling choose, "chuse" in my every day writings just to confuse people.
Anyway, this clause gives the House the power to determine how its own operations run and who will lead the House as Speaker. Also, it provides the House with the sole power of Impeachment. While Impeachment is not defined here, Dictionary.com defines it as "the presentation of formal charges against a public official by the lower house, trial to be before the upper house." The criteria for impeaching a sitting official is specifically not given here so that the House has broad authority to fight corruption. Convictions for charges presented during an Impeachment have a higher standard that we will discuss in our next post on Section 3 and can only be for high crimes and misdemeanors.
In our next post, we will continue on with Article I, Section 3 – The Senate. Please remember to follow us on Instagram @marchforthfortheconstitution for other Constitution content and share us with your friends. When we reach 100 followers on our Instagram page, we will pick one lucky follower to give away a $25 Amazon gift card!