Compensation Clause - Article 1, Section 6, Clause 1

  The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. 

                                                                                             ARTICLE I, SECTION 6, CLAUSE 1

COMMENT: There were two critical questions that the Framers attempted to solve: Would federal legislators be paid at all? And, if so, would they be paid by their respective states, or by the federal government?

The first question was whether the federal legislators would be paid at all. The Framers feared that unpaid legislators would turn corrupt in order to supplement their very own incomes. They thought that not paying legislators might attract candidates without a sense of duty to their country, and limit the candidates to being wealthy – inadvertently creating a legislative plutocracy.

The second question dealt with the source of payment. Most of the Framers wanted the legislators to be paid by the Federal Government verses by the States, which was the case under the Articles of Confederation. They thought that being paid by federal funds would make them less beholden to the states since they were being called to a national service.

Currently, Congress has broad flexibility is designing legislative compensation schemes; however, it is subject to the Twenty-Seventy Amendment that prevents a sitting congress from giving itself a raise that takes effect during its term.

Adjournment - Article 1, Section 5, Clause 4

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.  Adjournment - Article 1, Section 5, Clause 4

Comment: The Framers made sure that the two Congressional chambers had equity regarding the operations of the Legislative Branch, which was an important check on their power. For example, the Framers did not want one House to prevent the other from meeting and performing its duties.  Also, under this provision, neither the House of Representatives nor the Senate would be able use its power to adjourn to another time or place in order to check the actions of the other. 

Moreover, at the Convention, some were worried that the two Houses of Congress would move the "government" by simply agreeing upon the place to meet. So, the Convention decided that Congress could by "law" establish the seat of government (See Article 1, Section 8, Clause 17), but the Framers did leave Congress the ability to make temporary moves in the event of emergency circumstances. For example, during the 1790s, the three branches moved from Philadelphia to Trenton and during the  War of 1812, the government moved to Washington.

While the President can adjourn Congress under Article II, Section 3, in the event Congress cannot agree, the two chambers have always come to an agreement as to when to adjourn. However, these provisions have not been without unintended consequences. For example, one of the first instances was when the Southern states seceded from the Union. They deprived the sitting Congress of a quorum. In order to continue governing, President Abraham Lincoln issued the very first Presidential Order on April 15, 1861, Executive Order 1.

The most complex consequence of Clause 4 relates to when Congress takes a recess and when it adjourns. A recess is a temporary halt to activity on the floor. Everything stops, and when the recess ends, the chamber resumes from where it left off. A recess might last 10 minutes or it might last weeks. The length of time does not matter. An adjournment is a formal end to business in the chamber, and upon return the chamber does not resume from where it left off. Just like a recess an adjournment can be for one minute or for three weeks. However, unlike a recess, an adjournment creates a new legislative day.

House Journal - Article I, Section 5, Clause 3

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

COMMENT: The House Journal Clause requires each house to keep a journal of its proceedings. A journal is a book that records the actions and ideas of a person or group. This was to "ensure publicity" and "responsibility...to their...constituents" as stated by Justice Joseph Story.

To be sure, the requirement to keep a journal was not controversial; however, the provision allowing certain matters to be kept secret did cause concern. For example, Patrick Henry stated, "The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them." Others were concerned that publishing only "from time to time" would further conceal their actions. However, Madison argued that it was only to allow for flexibility, accuracy, and convenience.

In any event, the journal did not publish all that useful of information; it usually published lists of bills and resolutions, etc., not word for word debates and testimony. As a result, the secrecy matter really applied to whether the proceedings would be open to the public.

Although both houses have complete discretion over what proceedings will be secret, Congress has not used its privilege of keeping information secret all that much (the Senate has used it more than the House) - keeping such matters private as to impeachment, classified information, and national defense as a general rule.

While not required to do so, in 1873 Congress implemented the Congressional Record, which includes debates and undelivered remarks and documents. In addition, journals, newspapers, radio, and television (like C-SPAN) have made most of the actions of Congress open to the public as a whole.

Primary Source - The Heritage Guide to the Constitution

Rules and Expulsion Clause - Article I, Section 5, Clause 2

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Comment:  The Constitution permits the House and the Senate to determine their own rules of proceedings. To that end, it helped secure the independence of the Congress from the executive and judicial branch. Under this provision, representatives and senators may be expelled for inappropriate behavior with two-thirds vote. Originally, there was not a two-thirds requirement; however, Madison was concerned that the majority party would abuse its power and expel minority members if only a majority vote was required.

While impeachment is a process of accusing an official of wrongdoing before a tribunal - i.e., a president could be impeached for committing a crime. Expulsion, however, means being removed from office and is the only Constitutional tool to remove a sitting Member from office.

Qualifications and Quorum - Article1, Section 5, Clause 1

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Comment: This provision gives to the House and Senate the power to determine whether an election of a member is valid, and whether the person elected meets the Constitutional requirements for service. This type of provision was common throughout England and America - e.g.,eight states had similar clauses in their constitutions. In any event, 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. Moreover, in Morgan v. United States, Judge Scalia held that the House's determination as to which candidates had been elected was not within the court's power to review (i.e. the issue was nonjusticiable).

Regarding the Quorum provision, there was a two-thirds requirement under the Articles of Confederation, which was a major onstacle that they did not want anymore. As a result, the Framers settled on a majority - and some even thought that was too high as well.  The day-to-day adjournment provision allows the business of the Congress to carryon with a majority needing to be present. As a result, in todays' Congress a quorum is not usually considered, unless a member requests a quorum.

A real threat to the quorum requirement exists if a sufficient number of members decided to not attend so as to prevent a quorum and keep business from being done - e.g., Wisconsin. As a result, the Framers saw fit, thankfully, to permit each house "to compel the attendance of absent members," which passed without debate. Currently, fifteen Member of the House may order the Sergeant at Arms to compel the attendence of the absent Members.

Primary Source - The Heritage Guide to the Constitution.

Meetings of Congress- Article 1, Section 4, Clause 2

"The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day."

Comment: The Framers were careful to make sure that the executive branch did not control Congress. As a result, they did not consider adopting the British model, which the executive called Parliament to meet. Although the Framers did permit a provision allowing the President to call a special session of Congress for "extraordinary Occasions" as stated in Article 2, Section 3, the Framers maintained a bright separation-of-powers line.

Initially, the Framers argued over "when" to meet. Some wanted to meet in May because Europe met during the winter, which such result would arrive in the U.S. around spring; and it would be more conducive to travel. In the end, they decided on December because it would be more convenient for business owners and would coincide with State elections.

Election Regulations - Article 1, Section 4, Clause 1

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

Comments: This provision delegates to the state legislatures (not the executive or judicial branch) the authority to determine the time, place and manner of electing Senators; however, the provision also granted Congress the authority to supersede state law.

Regarding the authority for Congress to supersede the States, the Anti-Federalist were troubled that Congress would manipulate election laws so that they could stay in office longer.

Countering, Hamilton stated in The Federalist No. 59, "every government ought to contain within itself the means of its own preservation." He thought, however, that Congress would exercise this power only "whenever extraordinary circumstances might render that interposition necessary to its safety."

Furthermore, the provision requires that "Congress," (i.e., both sides) as a whole was needed to supersede state law. As a result, because the Constitution was originally ratified with the House representing the people and the Senate representing the States - having both houses of Congress agree, meant a national consensus was met, which provided additional safety.

However, despite Hamilton's thoughts of Congress acting only in "extraordinary circumstances," it has actually had a significant foot print. Congress has passed many Voting Rights Acts, such as the Enforcement Act of 1870 (curbed the abusive electoral process), Voting Rights Acts of 1965 (prohibitions on racial discrimination in voting), 1970 Voting Rights Act (reduced the voting age to 18 in state and federal elections); and it has passed numerous amendments, such as the Fifteenth Amendment (prohibited voter discrimination on the basis of race), Seventeenth Amendment (popular election for Senators), Nineteenth Amendment (prohibited voter discrimination on the basis of sex), Twenty-fourth Amendment (prohibited poll taxes in federal elections), and Twenty-sixth Amendment (gave 18 year olds the right to vote).

State laws are still important; however. As States, for example, are still in control of the rules for recounts and for replacing candidates who drop out shortly before the election, etc.

Primary Source. The Heritage Guide to the Constitution. 

Punishment for Impeachment - Article 1, Section 3, Clause 7

Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Comment:  This provision deals with the punishment that the Senate may impose in an impeachment trial. For the most part, the Framers followed the States' constitutional format vs. the British system, which included a broad range of punishments - including a death sentence.

In any event, a few questions have developed under this provision - the first of which is whether the Senate may impose sanctions separately. That is, is the "removal" and "disqualification" vote mutually exclusive from the "conviction" vote. The Senate believed that it was and defended its position on grounds that the punishment clause does not specify a requisite vote.

The next question deals with which proceeding comes first -  impeachment or criminal proceedings. The short answer is that neither is required first. In Federalist No. 69, Hamilton interpreted the clause, as it applied to the President, as requiring impeachment first, then they would be "liable to prosecution and punishment in the course of law." However, in practice many judges have been prosecuted, and some even imprisoned, before impeachment proceedings took place. Regarding the President, the Supreme Court ruled that the President is not immune to "subpoenas" in a federal criminal trial or from "civil litigation" for his personal conduct. See. US v. Nixon and Clinton v. Jones.

Another question dealt with whether a lesser punishment could be handed down - like a Censure. There are strong arguments for and against; however, historically, the House and the Senate have passed many resolutions condemning Presidents and the like.

Primary Source. The Heritage Guide to the Constitution.

Trial of Impeachment - Article 1, Section 3, Clause 6

"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present."

Comment: This clause vests to the Senate the powers and procedures regarding impeachment trials. The Senate has the "sole" power to try Impeachments for a couple of reasons. First, the Framers thought that the Senate would be smarter and more level-headed than the House of Representatives. Second, the Framers thought the Judiciary was too small to trust and that a "numerous court for the trial of impeachment" was more appropriate, as explained in The Federalist No. 65.

There are three requirements for impeachment trials. First, the Senators must be under Oath or Affirmation, which is to impress upon the Senator the importance of the occasion. Second, the Chief Justice must preside over the presidential impeachment trial, which avoids the potential conflict of interest of having the Vice President presiding over the Senate, as  (the VP normally presides as provided in Article 1, Section 3, Clause 4). Third, to convict there must be a super-majority, which is designed to make sure the consensus would transcend party lines.

A couple of issues have arisen regarding the impeachment authority. One was the Chief Justice's authority to hand down unilateral rulings. In the first presidential impeachment trial Chief Justice Chase had many rulings challenged and two were overruled. However, during President Client impeachment trial, Chief Justice Rehnquist was neither challenged nor overruled for any of his rulings. 

Another issues had to do with which procedures the Senate must utilize during trials. Under Article 1, Section 5, Clause 2, the Senate has the power to determine the Rules of its Proceedings. To that end, Thomas Jefferson, while Vice President, formulated the Senates impeachment trial procedures, which have subsequently been amended - but have largely remained intact ever since and were followed in President Clinton's impeachment trial.

Two U.S. Presidents have been impeached: Andrew Johnson and Bill Clinton. Both were acquitted at trial.

Primary Source. The Heritage Guide to the Constitution.

President Pro Tempore - Article 1, Section 3, Clause 5

"The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of the President of the United States."

Comment: This clause is designed to allow the Senate to maintain its legislative order by appointing a temporary presiding officer for when the Vice President is absent. This is similar to the House's appointment of the Speaker. In the beginning the Senate would elected the President Pro Tempore each time the Vice President was absent. Shortly there after (1792), John Adams began vacating the position prior to the end of the day so that another could be elected in the event he passed away or took over as President. Approximately 100 years later, the Senate began appointing the President Pro Tempore that would hold office until replaced.

While in office, the President Pro Tempore supervises the Senate, hands down procedural rulings, and often appoints younger Senator Members as substitutes in his stead to acquaint them with the rules and procedures of the Senate. The "other officers" includes, but is not limited to, the majority and minority leaders (who are in charge of directing legislation).

Primary Source. The Heritage Guide to the Constitution.

Vice President as Presiding Officer - Article 1, Section 3, Clause 4

"The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."


Comment: Article I of the Constitution creates the office of Vice President and assigns to it two legislative functions: to preside over the Senate and to vote in the Senate in case of ties. George Mason argued that allowing this violated the separation of powers structure of the constitution. However, Roger Sherman replied: "If the Vice President were not to be President of the Senate, he would be without employment."

Allowing the Vice President to (1) preside over the Senate and (2) vote in the Senate in case of ties - solved to issues. First, a definitive resolution would always be reached. Second, the representation of the states would remain equal; otherwise, if a Senator were to be chosen, then that State's representation would be increased.

Although the Constitution specifies that the Vice President “shall be President of the Senate,” it is silent regarding what that indeed entails. Early on, the Vice Presidents took their role seriously; however, today, under the rules and precedents of the Senate, presiding over the Senate involves simply recognizing Senators to speak in debate, maintaining order in the Senate, occasionally ruling on a question of parliamentary procedure, administering the oath of office to Senators, and making an appointment to a legislative entity based on the advice of party leaders. To that end, the Vice President rarely presides over the Senate.

Regarding casting tie-breaking votes, it can have great impact over the country where the Senators are evenly split. John Adams cast tie-breaking votes in the Senate 29 times. Richard B. Cheney cast tie-breaking votes 8 times and effectively gave a majority to the Republicans. There have been over 200 tie-breaking votes, with most of them occurring early in the republic's history.

Primary Source. The Heritage Guide to the Constitution.

Qualifications for Senators - Article 1, Section 3, Clause 3

"No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen."

Comment: This section deals with the qualifications for becoming a member in the Senate. To that end, the Framers determined that the following three qualifications would apply: 1. one must be at least 30 years old (vs. 25 for the House), 2. one must be a United States citizen for 9 years (vs.7 for the House), 3. one must be an inhabitant of the state where he is chosen.

The Framers wanted the Senate to be calm and deliberate of thought and action. At first, some argued for a 14-year period of citizenship because it would take that long to learn the American system of laws. However, Madison, Franklin, and others opposed such a long requirement.

This provision has not been the subject of judicial review. However, as noted when we reviewed the House of Representatives qualifications, in Powell v. McCormack, the Court held that the Constitution 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 either. 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.

The Federalist No 62

The Federalist No 63

Senatorial Classes and Vacancies - Article 1, Section 3, Clause 2

"Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies."

Comment: On April 6, 1789, the Senate reached a quorum. On May 13, the Senate then divided themselves into three (3) classes.  Senators were then separated into three geographically balanced classes. However, Senators from the same State were in different classes. To create the staggered terms of the Senate, three equal sized pieces of paper numbered 1, 2, and 3 rolled up and placed in a box. The Senator drawing "1" would end his term at the end of two years. The Senator drawing "2" would end his term at the end of the fourth year. And, the Senator drawing a "3," his term would end on the sixth year.


The last section of the clause grants the State's governor the authority to make Senate appointments in the event there was a vacancy and the legislature was not in session.


Primary Source. The Heritage Guide to the Constitution.


http://theconstitutionallawblog.blogspot.com

Senate - Article 1, Section 3, Clause 1

"The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote."

Note: Amended by the Seventeenth Amendment.

Comment: While the Framers created the House of Representatives to protect the "People's" interests; they created the Senate to represent and protect the interests of the States. To that end, each state was afforded two (2) Senators, regardless of that State's population, which provided equal representation to the smaller States so that they would be protected. The Senators for each state were elected by its legislature, who then served staggered six-year terms. The Framers believed that by having the terms staggered, and giving each Senator a vote, that the Senators would more closely reflect the political sentiment of the State at any given time. As a result of this bicameral system, the Constitution would end up requiring two independent sources to ratify legislation.

Article 1, Section 3 was amended by the Seventeenth Amendment. Several factors explain its ratification - e.g., from legislative deadlocks, to scandals brought on by charges of bribery in the election of a Senator, etc.. The Seventeenth Amendment was State ratified in less than eleven months by overwhelming numbers.  However, congressional approval came slow – i.e., eighty-six years later. During that time period, however, what actually happened was that the States started having non-binding primary (or "advisory") elections to select their Senators, and then the State legislators would promise to vote for that Senator.

In any event, by changing to a "direct" election, the amendment terribly altered the main mechanism used by the Framers to protect federalism. Remember, as originally designed, the Senators were elected and "re-elected" by the legislators, which preserved the loyalty of Senators to the States.


Primary Source. The Heritage Guide to the Constitution.


http://theconstitutionallawblog.blogspot.com

Impeachment - Article 1, Section 2, Clause 5

"The House of Representatives...shall have the sole Power of Impeachment."


Comment: The Framers were concerned that federal officials would not monitor each other. As a result, the Framers wanted a tool that would allow Congress to discipline those who abused their constitutional duties, while at the same time preserving the separation of powers between the branches. In working their way through the issue, one delegate made a proposal that allowed for Congress to remove the President if requested by a majority of the State legislators. However, that proposal was rejected on the grounds that it would subject the President to the manipulation of the States. In the end, the Framers decided to go with what most of the States' constitutions were following.

As expected, the Framers wanted the "sole Power" of bringing charges of impeachment to be vested in the Legislature, because that branch is closest to the people. The Constitution is silent on how the House is to initiate impeachment proceedings; so, early on a Member would rise on the floor and propose impeachment, which would then be assigned to a committee. Currently, Members of the House Judiciary Committee initiate impeachment proceeding with recommendations to the whole House. If the House approves an impeachment resolution, then the Chairman of the Judiciary Committee recommends "managers," which the House also approves by resolution, who then become prosecutors in the trial in the Senate.

Although it seems reasonable to presume that House has some sort of affirmative duty to monitor officials, most experts agree that because the House is vested with the "sole Power," a decision whether to initial impeachment proceeds is not reviewable by the Courts. In any event, only a few impeachments have occurred. In fact, the House has only moved seriously to impeach 18 officials in the more than 200 years since the Constitution was ratified, including two presidents (Andrew Johnson and William Clinton, both acquitted in the Senate; Nixon resigned prior to the House voting), one cabinet member, one senator, and 13 judges.

Primary Source. The Heritage Guide to the Constitution.


http://theconstitutionallawblog.blogspot.com

Speaker of the House - Article 1, Section 2, Clause 5

"The House of Representatives shall chuse their Speaker and other Officers...."

Comment: This provision was generally taken from the Massachusetts Constitution of 1780. It clearly establishes the House's power to choose its own leadership. The House of Representatives elects its Speaker first before the House formally adopts its rules of procedure for the legislative term. A candidate must receive a majority of the votes cast. The Speaker is the primary legislative leader of the body - as a result, the Speaker declares and defends the agenda of the majority party. The Speaker's role has largely been shaped by traditions and customs as the Constitution does not state the duties of the Speaker. Therefore, traditionally, the Speaker does not usually debate, vote, or sit on any standing committees. The Speaker has enormous power, which includes the power to appoint members and chairmen of committees, and the power to control the timing and content of bills brought before the house.

Primary Source. The Heritage Guide to the Constitution.

Executive Writs of Elections - Article 1, Section 2, Clause 4

"When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." 

Comment: The Framers did not want to see "the people" go unrepresented.  As a result, this clause provides the power to fill a vacant House seat by a special election. The Constitution vests that power with the State Executive - i.e., the State's Governor. The Governor has substantial discretion as to the timing of special elections; but, as a general rule, has affirmative duty to issue writs of election to fill vacancies unless the unexpired term were exceedingly short.


Primary Source. The Heritage Guide to the Constitution.

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

“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 choose 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.”

Comment:  Remembering back to Article 1, Section 2, Clause 1, the Framers wanted the people to be represented in the House of Representatives (cf. the States were represented by the Senate). To that end, the Framers spent many hours discussing the structure of representation. Here, this provision deals with the number of Representatives to be elected from each state.  Madison wanted the initial number to be 130; however, the majority of delegations decided that 65 Representatives would be a sufficient starting point. The Framers drafted this provision with some flexibility, which allowed for increased representation as the population grew; but, the provision did not allow for more than 1 Representative for every 30,000 persons. The Anti-Federalist were very concerned about the small number of Representatives. Madison answered their objection by explaining that the number of Congressmen would increase as the population increase and that there would be sufficient amount of checks and balances against corruption within the Constitution. Madison, however, argued against any “built-in” increase to the numbers of Representatives. In the end, in 1929 Congress decided to cap the number of Representatives at 435. Since then Congress has applied five different methods of apportioning Representatives among the states.  The present “Hill Method” (a complex formula), which determines when a state may gain or lose a seat, has been used since 1940. See Federalist Paper 10 and 55.

Primary Source. The Heritage Guide to the Constitution.

Enumeration Clause - Article 1, Section 2, Clause 3

"The actual Enumeration shall be made within three Years after the first Meeting of the Congress ofthe United States, and within every subsequent Term often Years, in such Manner as they shall by law direct."

Comment: The Constitution requires that a census be taken every ten years for the purpose of apportioning the House of Representatives. The main issue is whether this provision requires an actual count of every individual or whether an estimate may be used. Those who have concluded that an "estimate" may be used argue that "actual Enumeration" means ''the most accurate possible calculation"; and when further read in conjunction with "in such manner as they shall by Law direct," they believe the Framers intended for Congress to have complete discretion over the method to use to obtain the most accurate count possible. On the other hand, those who argue that "actual Enumeration" means an actual counting of individuals argue that the words mean to count "singly," "separately," "particularly." In debates between the Colonies and England over population figures, the parties would ask that an enumeration - or actual count - be taken, not an estimate. In The Federalist No. 36, Hamilton, discussing taxation issues, stated that "an actual census or enumeration of the people must furnish the rule, a circumstance which effectively shuts the door to partiality or oppression." Also, the Census Act of 1790 (the first census), required an actual counting. However, in Utah v. Evans (2002), the Census Bureau, when it was unsure of the number of residents at an address, inferred population characteristics from its nearest similar neighbor; the Supreme Court ruled that advanced statistical methods were constitutional valid.

Primary Source. The Heritage Guide to the Constitution.

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