George Washington and Apportionment, the first Presidential Veto

[See Haggard, Robert F. and Mark A. Mastromarino]

George Washington was the first president to veto Congressional legislation, exercising that prerogative once in each of his administrations. After consulting with the attorney general and his department secretaries, he vetoed the Apportionment Bill on 5 April 1792 on constitutional grounds. Just before Washington left office in March 1797, he vetoed for policy reasons, upon the advice of Secretary of War James McHenry, "A Bill to alter and amend an Act entitled 'An Act to ascertain and fix the military establishment of the United States'" on 28 Feb. 1797. In both instances, Congress failed to override his veto.

Washington's veto message to the United States House of Representatives of 5 April 1792: [See Fitzpatrick]


Gentlemen of the House of Representatives

I have maturely considered the Act passed by the two Houses, intitled, "An Act for an apportionment of Representatives among the several States according to the first enumeration," and I return it to your House, wherein it originated, with the following objections.

First—The Constitution has prescribed that representatives shall be apportioned among the several States according to their respective numbers: and 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.

Second—The Constitution has also provided that the number of Representatives shall not exceed one for every thirty thousand; which restriction is, by the context, and by fair and obvious construction, to be applied to the separate and respective numbers of the States: and the bill has allotted to eight of the States, more than one for thirty thousand.

George Washington.



The inaugural veto was prompted by Congress's passage of "An Act for an apportionment of Representatives among the several States according to the first enumeration." Its presentation to the president for his approbation on 26 March 1792 created a sharp divergence of opinion among Washington's closest advisers. In recognition of this fact, Washington in early April 1792 called on Edmund Randolph, Thomas Jefferson, Alexander Hamilton, and Henry Knox to give him their opinions of the bill. Attorney General Randolph and Secretary of State Jefferson complained separately on 4 April that 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 (a number that would divide each state's population evenly) and the division of the population residing in each state by that number to establish the size of the House of Representatives.

The fact that the bill gave an additional member to the eight states with the largest fraction left over after dividing by 30,000 was, according to Randolph, "repugnant to the spirit of the constitution" in that it tacked "the numbers of one state to those of another for the purpose of procuring a member," with the result that, contrary to the Constitution, the number of representatives in those states exceeded the stipulated one for every 30,000.

Although Jefferson acknowledged that "this representation, whether tried as between great & small states, or as between North & South, yields, in the present instance, a tolerably just result," he urged that it be vetoed because it was unconstitutional and introduced principles that were liable to be abused in the future. Jefferson favored the reduction of "the apportionment always to an arithmetical operation, about which no two men can ever possibly differ."

Secretary of the Treasury Alexander Hamilton and Secretary of War Henry Knox, on the other hand, opposed a presidential veto in this instance.

Knox argued on 3 April 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 (all documents Library of Congress: GW Papers).

After careful consideration, Washington concluded that Randolph and Jefferson were correct about the unconstitutionality of the bill. Even so, he hesitated to veto it. Because "the vote for & against the bill [in Congress] was perfectly geographical, a Northern agt a Southern vote," Washington feared that in vetoing it "he should be thought to be taking side with a Southern party" [Jefferson's Memoranda of Consultations with the President, 11 March-9 April 1792, Library of Congress: Jefferson Papers.]

Further discussion with Randolph, Jefferson, and James Madison, however, allayed Washington's concerns, and on 5 April 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." Congress, after receiving Washington's veto message, the first in U.S. history, threw out the original bill and decided, on 10 April 1792, to apportion representatives at "the ratio of one for every thirty-three thousand persons in the respective States" [National Archives: Record Group 233, Second Congress, 1791-1793, Records of Legislative Proceedings, Journals.]

References

  1. Haggard, Robert F. and Mark A. Mastromarino, eds., The Papers of George Washington: Presidential Series volume 10, March – August 1792. Charlottesville and London: University Press of Virginia, 2002.
    http://gwpapers.virginia.edu/project/volumes/presidential/presidential10.html and http://gwpapers.virginia.edu/documents/presidential/veto.html

  2. Fitzpatrick, John Clement, The writings of George Washington from the original manuscript sources [Washington, George, 1732-1799]
    Creation of machine-readable version: National Digital Library Program, Library of Congress
    Conversion SGML markup (American Memory dtd): National Digital Library Program, Library of Congress
    Conversion to TEI.2-conformant XML markup: University of Virginia Library Electronic Text Center.
    This version available from the University of Virginia Library
    Charlottesville, Virginia
    mgw-gw32 ; LCCN: 31-5736
    Publicly accessible: http://etext.lib.virginia.edu/washington/

  3. Cullen, Charles T., ed. The Papers of Thomas Jefferson, Vol 23: 1 January-31May 1792, Princeton University Press, 1990