Monday, July 30, 2018

Count All the People

Joseph Fishkin

The Fourteenth Amendment sets out a simple rule for the interstate allocation of political power in the United States: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” With this sentence, 150 years ago this month, the Constitution obliterated the three-fifths clause. Later, just under a century ago, we incorporated all Native Americans into the body politic by statute, so there are no more “Indians not taxed.” These changes have wrought a beautifully straightforward rule: our federal government allocates political power according to “the whole number of persons.” Not just the citizens. Not just the adults. Not just the people with valid immigration status, or the people a state has decided in its wisdom to make eligible to vote. All persons.

This hard-won bedrock constitutional principle structures the entire American political order under our feet. But that doesn’t mean Americans are all aware of it or understand it. To some Americans today (especially a lot of Republicans) it seems kind of crazy that we count non-voters such as children and even non-citizens, regardless of immigration status, in allocating political power. If they can’t vote, these critics ask, why do they count?

That way of thinking is now underwriting a flurry of profoundly ill-conceived activism by Republicans across the country who are aiming in a variety of ways to circumscribe the set of persons who count in our processes for allocating political power. One line of attack is a political lawsuit aiming to persuade the Census Bureau to violate the Constitution by refusing to count undocumented immigrants at all. (The lawsuit of course claims that the Constitution requires, rather than prohibits, this never-before-tried exclusionary practice.) Another line of attack aims to redraw state and local district lines so that instead of counting all the people, they count only citizens or eligible voters or some other measure. The highest-profile line of attack to date emanates from within the Trump administration, which is attempting to add a citizenship question to the Census in an effort to make such exclusionary redistricting easier for states and localities—while at the same time, in a fortuitous nativist twofer, suppressing the Census count itself in immigrant communities. The partisan stakes in all this are mostly pretty obvious (although not entirely). But sometimes the commentary about partisan effects obscures the underlying constitutional principle at stake.

Today in the Washington Post, I have an op ed offering a defense of the principle that we should count all the people. It’s pretty short; the defense is condensed. If you’re interested in a more in-depth discussion, you can take a look at this essay I recently published in a symposium in the William & Mary Law Review. It seems to me that we are now in the early stages of a twenty-first century reckoning with the question of who counts—on the Census, in apportionment, and across federal and state redistricting. The core underlying questions across these domains are fairly consistent. I think there are strong justifications for leaving in place the settlement reached in 1789 and 1868, later magnified outward by the core reapportionment revolution decisions of 1964: we count all the people, and we all count equally. I also think there is far more work to be done in this area. This debate is just beginning. I write this blog post in the hope that some readers may decide to write in this area.

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