Washington Law Review


Thomas R. Lee


This Article addresses the question of whether statistical methods of estimating the population for purposes of congressional apportionment are consistent with the constitutional requirement of an "actual enumeration." Although the existing literature generally asserts that history provides no meaningful guidance on this question, this Article uncovers an extensive historical record--of both British and American origin—that supports the conclusion that the generation of the Framers understood that an "actual enumeration" would consist of an actual count and would not be based on statistical estimation. Specifically, the Article shows that assessments of population on both sides of the Atlantic routinely contrasted methods of drawing "conjectural estimates" with the more costly approach of conducting an "actual enumeration." Moreover, the Article identifies historical evidence that the Framers' generation was well aware of the principal "modem" objection to enumeration—that the inherent limitations of such an approach predictably lead to an undercount. Thus, the Article concludes that the Framers prescribed a census by "actual enumeration" not out of naïveté or unfamiliarity with methods of estimation, but to minimize the risk of political manipulation in what they knew would always be a politically charged decision-the apportionment of seats—the U.S. House of Representatives.

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