Article I, Section 2, Clause 3 specifies the apportionment of House members by state, to be consistent with the Great Compromise and Three-fifths Compromise at the Convention: “Representatives and direct Taxes shall be apportioned…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.”
Article I, Section 2 presents the method of apportioning House members for each state, requires that each state have at least one member, and specifies the numbers of House members for the First Congress:
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.
The number of representatives and the allocation of representatives for each state was initially proposed by Gouverneur Morris of Pennsylvania as a committee motion at the Constitutional Convention on July 9. The committee proposed a ratio of one representative for every 40,000 inhabitants. Under this formula, the first meeting of the House of Representatives would have 56 members, including: 2 from New Hampshire, 7 from Massachusetts, 1 from Rhode Island, 4 from Connecticut, 5 from New York, 3 from New Jersey, 8 from Pennsylvania, 1 from Delaware, 4 from Maryland, 9 from Virginia, 5 from North Carolina, 5 from South Carolina, and 2 from Georgia. The Legislature would be authorized “from time to time to augment ye. number of Representatives.” Roger Sherman of Connecticut questioned the “principles or calculations” in the report. Luther Martin of Maryland asked whether wealth was a consideration. Morris blithely said: “The Report is little more than a guess. Wealth was not altogether disregarded by the Committee….. The Committee meant little more than to bring the matter to a point for the consideration of the House.” (Records of the Federal Convention 1787, 9 July)
The question of apportioning seats in the House, including numerous amendments regarding the total number of House members and the number for each state, was debated for weeks. The debate focused on whether wealth as well as population should be considered in allocating the number of representatives to the House and whether slaves should be counted as persons. On July 13, the delegates voted to remove “wealth” as a consideration for apportioning House seats. Ultimately, the size of the House was increased from 56 in the original motion to 65, one for every 30,000 inhabitants and passed with the allocation of seats for the first Congress in Article I, Section 2 on August 6. The delegates also settled on ten years as the length of time for reapportionment.
During ratification, Madison explained how the size the House, the allocation of seats for each state, and the process for reallocating House seats in the future would be safeguards to liberty. (Federalist, No. 55) First, while “no political problem is less susceptible of a precise solution,” a body of sixty-five members is large enough “to secure the benefits of free consultation and to guard against too easy a combination for improper purposes;” but small enough “to avoid confusion and intemperance of the multitude.” Secondly, Madison noted that the number would be adjusted within the first three years and every ten years thereafter, resulting in an increase in numbers over time. Thirdly, Madison expressed confidence in the ability of the people to check tyranny and of the representatives to avoid it. Thus, he was “….unable to conceive that the people of America, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery.” He continued: “I am equally unable to conceive that there are at this time, or can be in any short time, in the United States, any sixty-five or a hundred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the solemn trust committed to them.”
The original terms of Article I Section 2, Clause 3 have been altered by constitutional amendment, legislative statutes, and court cases over two issues:
In the Apportionment Act of 1842, Congress increased membership in the House of Representatives to 223 and required states to create only single-member districts, although population sizes varied substantially across districts. The 3/5ths provision was modified after the Civil War by the Fourteenth Amendment (Section 2) in 1868, which required that “Representatives shall be apportioned among the several States according to the respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Using the standard that no district would be greater than 30,000, Congress used various methods every ten years for resolving unequal ratios of seats per state. In 1872, Congress required states to create districts with equal numbers of people “as nearly as practical.” After the 1910 Census, the size of the House had grown to 435 under the Apportionment Act of 1911. After failing to reapportion seats after the 1920 Census, Congress passed the Permanent Apportionment Act of 1929 that capped the number of House seats at 435.
Historically, states had wide discretion in terms of drawing district lines, and unequal distributions of people across districts were common. The problem of an unequal voter-to-representative ratio was addressed in the case Wesberry v. Sanders (1964). Wesberry (the plaintiff), a voter in the 5th Congressional District of Georgia, argued that his vote was diluted because the district was 2-3 times larger than other districts in the state. The Court sided with Wesberry, thus establishing the standard that “as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” Today, the average number of people in each congressional district is approximately 710,000.