Apportionment Act of 1792

An earlier apportionment bill was vetoed by President George Washington on April 5, 1792 as unconstitutional, marking the first use of the U.S. President's veto power. Washington made two objections in a letter to the House describing the reason for his veto. The first objection made in the letter was that the bill did not have a uniform ratio to reach the numbers of representatives to population set forth in the bill. Secondly, the bill "allotted to eight of the States more than one for every thirty thousand" as delimited by Article I Section II of the United States Constitution.[6] The next day, the House attempted to override the President's veto but failed to reach the two thirds vote required and on April 10 efforts began to revise the bill a third time.[7]

On March 26, the bill was presented to the President. There was great disagreement among Washington's advisors, and therefore he called upon Edmund Randolph, Thomas Jefferson, Alexander Hamilton, and Henry Knox to give him their opinions of the bill. Randolph and Jefferson both said, as the bill established the total number of representatives, 120, by dividing the aggregate of the federal census by 30,000, it was unconstitutional. The Constitution required, they argued, the choice of a common divisor and the division of the population residing in each state by that number to establish the size of the United States House of Representatives. Also, the fact that the allocating method invented by Hamilton, which the bill was using, gave an additional member to the eight states with the largest fraction left over after dividing by 30,000 was called "repugnant to the spirit of the constitution" by Randolph. Jefferson urged that Washington veto it because it was unconstitutional and introduced principles that were liable to be abused in the future.[1]

Contrary to Jefferson and Randolph, both Knox and Hamilton urged that he approve the bill. Knox argued on April 3 that the Constitution was unclear about "whether the numbers of representatives shall be apportioned on the aggregate number of all the people of the United States, or on the aggregate numbers of the people of each state." As the constitutionality of the bill was, Knox said, "only doubted not proved but the equity of the measure apparent, it would appear rather a delicate measure for the President to decide the question contrary to the bill as passed." Hamilton wrote Washington on the following day that, while he had not yet read the bill, it seemed to him that the bill "performs every requisition of the constitution; and it will not be denied that it performs this in the manner most consistent with equality." Like Knox, Hamilton believed that "In cases where two constructions may reasonably be adopted, and neither can be pronounced inconsistent with the public good, it seems proper that the legislative sense should prevail" and the bill should be signed into law.[1]

After considering both sides of the argument, Washington decided that Jefferson and Randolph were correct, and Washington agreed that the bill was unconstitutional. Even so, Washington feared that by vetoing it he would increase geographical tensions by siding with the south, as Jefferson and Randolph were both from Virginia. Further discussion with Randolph, Jefferson, and James Madison, however, allayed Washington's concerns, and on April 5, the president decided to return the bill to the House of Representatives with the two objections that "there is no one proportion or divisor which, applied to the respective numbers of the States will yield the number and allotment of representatives proposed by the Bill" and that "the Bill has allotted to eight of the States, more than one [representative] for thirty thousand."