Interactive Constitution Essay: Article I, Section 2—U.S. House

The U.S. Constitution has become so familiar to Americans and so influential around the world that it’s easy to forget what a revolutionary document it was at the time of its enactment. Nothing better illustrates this than Article I, Section 2, which established the U.S. House of Representatives. What was extraordinary in 1787 is that Article I, Section 2 provided for direct election of House members “by the People of the several States.”

Under the Articles of Confederation, delegates to the Confederation Congress were selected as state legislatures directed. Akhil Reed Amar, America’s Constitution: A Biography 64 (2005). Only two states gave the People a say in the selection of delegates. Elsewhere, the state legislatures chose Confederation Congress delegates. While some members of the Constitutional Convention supported giving state legislatures control over the selection of House members, James Madison and James Wilson successfully argued that direct elections were necessary to connect the national government to the people. The Heritage Guide to the Constitution 49 (2005). This was a radical departure from most states’ pre-constitutional practice.

Of course, not all of the people were eligible to vote at the time of ratification. Article I, Section 2 made the qualifications for voting in U.S. House elections the same as those for voting in the larger branch of the state legislature. That effectively excluded women, as well as many free African Americans and Native Americans. It also excluded some white men, who were barred from voting by property ownership requirements that were the norm in 1787.

Some Framers favored making property ownership a qualification for voting in U.S. House elections, but Ben Franklin reminded them that many “common people” had joined the fight for independence. A uniform suffrage requirement was ultimately rejected, due to fears that it would lead some states to reject the Constitution altogether. The compromise—tying the qualifications for voting in U.S. House elections to the qualifications for voting in state legislative elections—allowed roughly two-thirds of white men—but very few others—to vote. See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 15, 23-24 (2000).

Nevertheless, these direct elections were a significant milestone in the development of democracy. Many more people were eligible to vote in U.S. House elections than was the case under English law. In the ensuing decades, states moved rapidly toward universal suffrage for white men. The Fifteenth Amendment, adopted in 1870, prohibited denial of the vote on account of race, though in practice African-Americans were denied that right in southern states for much of the twentieth century. Women gained a constitutional right to vote with the Nineteenth Amendment in 1920.

The short list of qualifications for serving in the U.S. House was also a step toward a more inclusive democracy. Article I, Section 2 imposed just three qualifications for members of the House. Members must: (1) be at least twenty-five years old, (2) have been a citizen for seven years, and (3) be an inhabitant of the state from which he is selected. That was less stringent than those applicable to state legislators in most states, all but one of which required property ownership. The Supreme Court later held that neither Congress nor the states may add to Article I, Section 2’s list of qualifications. Powell v. McCormack (1969); U.S. Term Limits, Inc. v. Thorton (1995).

To ensure that House members were accountable to the people, Article I, Section 2 provided for relatively frequent elections, to take place every two years. This contrasted with the terms of Senators under Article I, Section 3, which take place every six years.

The constitutional requirement that House members be elected “by the People of the several States” eventually became the basis for the U.S. Supreme Court to hold that congressional districts must be as equal in population as possible (“one person, one vote”). Wesberry v. Sanders (1964). The “one person, one vote” rule applies with special rigor to U.S. House elections. Later cases establish that congressional districts must be closer to mathematical equality than state legislative districts, which are subject to the one person, one vote requirement under the Equal Protection Clause of the Fourteenth Amendment. While state legislative districts are generally presumed to be constitutional if their total deviation from population equality is less than ten percent, the Court has rejected even the tiniest departures from population equality in drawing U.S. House districts. Congressional redistricting plans with a deviation of less than one percent have been deemed unconstitutional under Article I, Section 2. See, e.g., Karcher v. Daggett (1983).

To ensure that states were represented in proportion to their population, Article I, Section 2 required an “actual Enumeration” of people every ten years—what we today know as the U.S. Census. It also provided that each state shall have at least one U.S. House member.

Article I, Section 2 also included one of the most infamous provisions of the U.S. Constitution, providing that a state’s direct taxation and representation in the U.S. House would be determined according to the “whole number of free Persons, . . . and, . . . three fifths of all other Persons.” Everyone understood that the “other Persons” were slaves. Yet the import of this Clause is sometimes misunderstood.

At the Convention, slaveholding states wanted to count slaves for apportionment purposes, which would have increased the number of representatives to which the southern states were entitled. Because slaves were not allowed to vote, this would have given eligible voters in southern states relatively more power than those in northern states, making abolition less likely. It would also have given southern states a greater voice in selecting the President, because a state’s representation in Congress determines its representation in the Electoral College under Article II, Section 1. At the same time, the southern states did not want to count slaves at all for purposes of determining the direct taxes that the federal government could lay on the states, because that would increase their tax burden. The decision to count sixty percent of the slave population actually reduced the power of the southern states, compared to what it would have been if the entire slave population had been counted. The Three-Fifths Clause was eventually repealed by the Fourteenth Amendment, under which states are represented in Congress in proportion to their population and reduced to the extent that the right to vote is denied to male citizens 21 and older, except for participation in rebellion or other crime.

Finally, Article I, Section 2 gives the U.S. House “the sole Power of Impeachment,” including impeachments of the President. Even the highest official in the land is accountable to the people, subject to removal from office for “high Crimes and Misdemeanors” under Article II, Section 4. The House has exercised its power to impeach the President four times, with respect to President Andrew Johnson in 1868, President Bill Clinton in 1998, and President Donald Trump in 2019 and in 2021. On all four occasions, the President was subsequently acquitted by the U.S. Senate, which has the sole power to try impeachments under Article I, Section 3.