Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/151

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CH. IX.]

HOUSE OF REPRESENTATIVES.

143

garded on this point? Or is it to be followed out in its true spirit, though unavoidably differing from the letter, by the nearest approximation to it? If an additional representative can be assigned to one state beyond its relative proportion to the whole population, it is equally true, that it can be assigned to all, that are in a similar predicament. If a fraction admits of representation in any case, what prohibits the application of the rule to all fractions? The only constitutional limitation seems to be, that no state shall have more than one representative for every thirty thousand persons. Subject to this, the truest rule seems to be, that the apportionment ought to be the nearest practical approximation to the terms of the constitution; and the rule ought to be such, that it shall always work the same way in regard to all the states, and be as little open to cavil, or controversy, or abuse, as possible.

§ 677. But it may be asked, what are the first steps to be taken in order to arrive at a constitutional apportionment? Plainly, by taking the aggregate of population in all the states, (according to the constitutional rule,) and then ascertain the relative proportion of the population of each state to the population of the whole. This is necessarily so in regard to direct taxes;^[1] and

↑ "By the constitution," says Mr. Chief Justice Marshall in delivering the opinion of the court, "direct taxation, in its application to states, shall be apportioned to numbers. Representation is not made the foundation of taxation. If, under the enumeration of a representative for every 30,000 souls, one state had been found to contain 59,000 and another 00,000, the first would have been entitled to only one representative, and the last to two. Their taxes, however, would not have been as one to two, but as fifty-nine to sixty."^{[a 1]} This is perfectly correct, because the constitution prohibits more than one representative for every 30,000. But if one state contain 100,000 souls, and another

↑ Loughborough v. Blake, 5 Wheaton's R. 317, 320.

[s677n1-2] "By the constitution," says Mr. Chief Justice Marshall in delivering the opinion of the court, "direct taxation, in its application to states, shall be apportioned to numbers. Representation is not made the foundation of taxation. If, under the enumeration of a representative for every 30,000 souls, one state had been found to contain 59,000 and another 00,000, the first would have been entitled to only one representative, and the last to two. Their taxes, however, would not have been as one to two, but as fifty-nine to sixty."^{[a 1]} This is perfectly correct, because the constitution prohibits more than one representative for every 30,000. But if one state contain 100,000 souls, and another

[1] Loughborough v. Blake, 5 Wheaton's R. 317, 320.

[1]

[a 1]