House of Representatives - Article 1, Section 2, Clause 3

"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."

Replaced by: Amendment 14. Section 2. "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State..."


Comment: This provision is called the Three-fifths Clause; it is a rule for counting slaves. At the time many people believed that slaves were just property, not persons, and should not be counted. The North resisted counting slaves for many reasons (e.g., it might cause a reason to have more slaves). As a result, deadlock ensued.  In Federalist No. 54, Madison argued that "we must deny the fact, that slaves are considered merely as property, and in no other respect whatever as persons." He did write, however, that the issue of slaves was a "peculiar" one. In the end, he stated that slaves retain both qualities (personhood and property). In any event, a provision linking direct taxes and representation with apportionment provided a compromise. Slaves were counted as 3/5ths for representation, which did not benefit the South as much had each slave been counted as a whole person; however, the South benefited from the 3/5ths rule for direct tax apportionment, which reduced their total tax liability. The silver lining in this mess is that in the end the Constitution did (in some way) recognize slaves as persons, and not merely as property.


Primary Source. The Heritage Guide to the Constitution.
Federalist Paper No 54

House of Representatives - Article 1, Section 2, Clause 2

"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."

Comment: This section deals with the qualifications for becoming a member in the House of Representatives. To that end, the Framers determined that the following three qualifications would apply: (1) one must be at least 25 years old (allowing some life experience for a member), (2) one must be a United States citizen for 7 years (to prevent foreign influence), (3) one must be an inhabitant of the state where he is chosen. They rejected property, wealth, and indebtedness qualifications.

This clause was not litigated in court for almost 200 years until the House refused to seat Adam C. Powell because he had allegedly embezzled House funds and lied to the House. Powell sought a judicial declaration of the matter. In Powell v. McCormack, the Court held that although Article I Section 5 provided that "Each House shall be the Judge of the...Qualifications of its own Members," Article 1 Section 2 specifies exactly three qualifications -- age, citizenship, and residency -- and that implies that there can be no more qualifications added by Congress.

In a subsequent holding, the Court ruled in United States Term Limits v. Thornton that the state may not impose its own qualifications. Justice Stevens, writing for the majority, argued that the States can not impose additional qualifications because the Constitution was a creature of the People, and not of the States; and that the States did not retain any power under the 10th Amendment.


 Primary Source. The Heritage Guide to the Constitution.