U.S. Constitution · Article I, Section 2, Clause 3

Apportionment Clause; Three-Fifths Clause; Enumeration Clause

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Also known as: Apportionment Clause · Three-Fifths Clause · Enumeration Clause

The Clause originally tied House seats and direct taxes to state population using the three-fifths rule and required a census every ten years.

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The text

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. 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.

Note: The three-fifths provision was superseded by Section 2 of the Fourteenth Amendment.

National Archives transcription (public domain; original spelling and capitalization). archives.gov

SI explainer

What it means

This Clause set the original rules for dividing seats in the House of Representatives and direct taxes among the states. Both were to be based on population: free people counted fully, untaxed Native Americans were excluded, and enslaved people were counted as three-fifths of a person. The Clause also required the government to count the population within three years of the first Congress and every ten years after that. The Clause limited the size of the House to no more than one representative for every thirty thousand people, while guaranteeing each state at least one representative. It also assigned temporary numbers of seats to each named state until the first official count was completed. The three-fifths rule no longer applies. The official summary states it was superseded by Section 2 of the Fourteenth Amendment, which bases apportionment on the whole number of persons in each state, with a penalty reducing representation when adult male citizens are denied the vote, except for rebellion or other crime.

Original meaning

The Clause linked representation and direct taxation to state population and required a census every ten years. It counted free persons fully, including indentured servants, excluded Indians not taxed, and counted three fifths of all other Persons, meaning enslaved people. Madison wrote in The Federalist No. 54, explaining the compromise in the voice of a Southern defender, that it regarded enslaved people as inhabitants with diminished status under servitude. Brutus objected in Brutus, No. 3 that the Clause disguised this bargain in indirect language and argued that people denied any share in government should not enlarge a state's representation. Madison wrote in The Federalist No. 55 that large assemblies were prone to passion, defending the Clause's limit of not more than one representative for every thirty thousand people and its temporary allocation of seats until the first enumeration.

“Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the SLAVE as divested of two fifths of the MAN.” James Madison, The Federalist No. 54 (1788-02-12)
“What a strange and unnecessary accumulation of words are here used to conceal from the public eye, what might have been expressed in the following concise manner. Representatives are to be proportioned among the states respectively, according to the number of freemen and slaves inhabiting them, counting five slaves for three free men.” Brutus (attributed to Robert Yates), Brutus, No. 3 (1787-11-15)
“But it has never been alledged that those who are not free agents, can, upon any rational principle, have any thing to do in government, either by themselves or others. If they have no share in government, why is the number of members in the assembly, to be increased on their account?” Brutus (attributed to Robert Yates), Brutus, No. 3 (1787-11-15)
“In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” James Madison, The Federalist No. 55 (1788-02-15)

How the Supreme Court has read it

Hylton v. United States, 3 U.S. 171 (1796)

The Court upheld a federal tax on carriages as a duty or excise rather than a direct tax requiring apportionment among the states.
Springer v. United States, 102 U.S. 586 (1881)

The Court upheld the Civil War-era federal income tax, holding that it was not a direct tax requiring apportionment.
Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895) · superseded in part by the Sixteenth Amendment

The Court held that a tax on income from real estate was a direct tax requiring apportionment, and on rehearing extended this to income from personal property and invalidated the income tax provisions of the 1894 Act. This reading was superseded in part by the Sixteenth Amendment.
Department of Commerce v. New York, 588 U.S. 752 (2019)

The Court held that the Enumeration Clause permits asking a citizenship question on the census, but affirmed the remand to the agency because the Secretary's stated rationale was contrived under the Administrative Procedure Act.

Two schools of interpretation

Originalist / textualist reading

Originalists and textualists read the Clause according to the public meaning of its words at ratification. On this view, Representatives and direct Taxes shall be apportioned among the several States according to their respective Numbers means what it says: representation and direct-tax burdens were tied to counted population, with the three-fifths rule, the exclusion for Indians not taxed, the decennial actual Enumeration, and the size limits operating as binding rules. Later changes come only through amendment, so Section 2 of the Fourteenth Amendment is understood to have superseded the three-fifths counting rule, and the Sixteenth Amendment is understood to have altered the apportionment requirement for income taxes.

Living-constitutionalist reading

Living-constitutionalists and pragmatists read this Clause as part of a Constitution whose representative system must work for a changing nation. In this view, the text sets durable goals — equal-population representation, an accurate count every ten years, and a workable tax power — while later amendments reshape who counts as part of the political community. The Court's decisions on direct taxes and on census administration are therefore read as practical efforts to make apportionment, enumeration, and taxation function fairly over time, with Section 2 of the Fourteenth Amendment and the Sixteenth Amendment treated as later public choices that properly update the original compromise.

Open questions

Courts and scholars continue to address what counts as a direct tax that must be apportioned, what methods and questions Congress may authorize for the decennial enumeration, and how the original thirty-thousand-to-one maximum and one-per-state minimum apply to the modern size of the House.

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Values for America Constitution Explorer, https://www.valuesforamerica.com/constitution (text: National Archives transcription, public domain), Article I, Section 2, Clause 3, https://www.valuesforamerica.com/constitution/article-1/section-2/clause-3

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