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Counting All Persons is the “Theory of the Constitution” When It Comes to Representation
David Gans
One hundred and fifty years ago, the Framers of the
Fourteenth Amendment debated our Constitution’s system of equal representation,
affirming that every person counts in our system of representative
democracy.Earlier this week, in Evenwel v. Abbott, in a landmark
opinion written by Justice Ruth Bader Ginsburg, the Supreme Court
reaffirmed that the Constitution’s text and history secure equal representation
for all, rejecting the far-reaching claim—never accepted by any court in
history—that the Constitution requires states to draw districts composed of an
equal number of eligible voters.Evenwel’s bid to rewrite the Constitution to require excluding children
and huge portions of the immigrant population from representation in state
legislatures—a bid financed by Ed
Blum—did not get a single vote.
Drawing extensively on the historical material laid out in
CAC’s brief,
Justice Ginsburg’s opinion showed that the Constitution’s Framers—both at the
Founding and after the Civil War—created an inclusive democracy founded on the
idea that all persons—whether or not they have the right to vote—deserve
representation.As we continue to celebrate the 150th
anniversary of America’s Second Founding
this year, Justice Ginsburg’s opinion is an important reminder that the
Fourteenth Amendment helps to ensure, as Lincoln promised at Gettysburg, a
“government of the people, by the people, and for the people.”As Evenwel
makes clear, our foundational constitutional principles call for counting all
persons.
Justice Ginsburg’s opinion shone a light on a long forgotten
aspect of the Fourteenth Amendment: the Framers’ decision to reaffirm total
representation as the basis for apportioning representatives in Congress.As Ginsburg showed, the Framers debated
questions of representation at great length, choosing to reaffirm the total
population, because, in the words of Senator Jacob Howard, it “is the safest
and most secure principle upon which the government can rest.Numbers, not voters; numbers, not property;
this is the theory of the Constitution.”As Justice Ginsburg’s opinion made clear, the Framers of the Fourteenth
Amendment refused to countenance the exclusion from representation of children,
women and others not eligible to vote.The “theory of the Constitution” when it comes to representation is that
all persons deserve to be counted.
Justice Ginsburg’s opinion, joined by five other members of
the Court, explained that Evenwel’s claim has “no mooring in the Equal
Protection Clause” and could not be squared with the Fourteenth Amendment’s
command for counting all persons for purposes of apportioning representatives
to Congress.“It cannot be that the
Fourteenth Amendment calls for the apportionment of congressional districts based
on total population, but simultaneously prohibits States from apportioning
their own legislative districts on the same basis.”While the Court did not decide whether states
must count all persons when drawing state legislative districts, it is hard to
see how, after Ginsburg’s recounting of fundamental principles of
representational equality written into the Constitution, a state could justify denying
representation to children, unnaturalized immigrants, and others who are not
eligible to vote.As Ginsburg
explained, “As the Framers of the Constitution and the Fourteenth Amendment
comprehended, representatives serve all residents, not just those eligible or
registered to vote.”
Justice Ginsburg’s embrace of equal representation for all
persons as the “theory of the Constitution” provoked separate concurring opinions
by Justice Thomas and Justice Alito, which sought to undermine the
constitutional text and history so powerfully laid out by Justice
Ginsburg.Justice Alito, joined by Justice Thomas, dismissed
the significance of the Fourteenth Amendment’s textual requirement to count all
persons, viewing that part of the Fourteenth Amendment simply as a power grab
designed to perpetuate the dominance of the North and to punish the South.As Alito put it, “[t]he bottom line is that
in the leadup to the Fourteenth Amendment, claims about representational
equality were invoked, if at all, only in the service of the real goal:
preventing southern States from acquiring too much power in the National Government.”Alito’s dismissal is in line with past cases,
such as Shelby County v. Holder, that
turn a blind eye to the Reconstruction Amendments and view enforcement of fundamental
principles of political equality with suspicion.
Both Alito and Thomas sought to back away from the principle
of representational equality, what Senator Jacob Howard had called the “theory
of Constitution” when it comes to representation.But five other Justices, including Chief
Justice Roberts and Justice Anthony Kennedy, joined Justice Ginsburg’s opinion,
which followed the Framers of the Fourteenth Amendment and embraced the
fundamental principle that all persons are entitled to be represented.As Ginsburg wrote, “it remains beyond doubt
that the principle of representational equality figured prominently in the
decision to count people, whether or not they qualify as voters.”
Ed Blum engineered the Evenwel
case, seeking a constitutional rule requiring states to exclude children,
unnaturalized immigrants and others from representation in state and local
legislatures.In rejecting that fatally
flawed argument, Justice Ginsburg’s opinion offers good reason to celebrate the
Second Founding’s affirmation that all persons, whether voters or not, count in
our polity.
David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.