Balkinization: Counting All Persons is the “Theory of the Constitution” When It Comes to Representation

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 150^th 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.

Posted 2:08 PM by David Gans [link]