EqualCitizens.US
Aug 8 · 7 min read

By Michael L. Rosin

In a recent piece (So You Want to Enforce Section 2 of the Fourteenth Amendment?) I explained how citizenship data from the census would be used in an application of the Penalty Clause in section 2 of the Fourteenth Amendment. I also explained the citizenship data serves no purpose specified in the Constitution without gathering data on the number of adult citizens whose voting rights have been denied or abridged but there are cases in which the Penalty Clause can be enforced even in the absence of a count of the number of adult citizens.

Although the Administration has (mercifully) dropped their quest to add a question about citizenship on the short from of the Census, the Administration says it will seek more detailed citizenship data. It claims this data can be used for “congressional apportionment.” The Administration is wrong. Instead, aside from enforcement of the Penalty Clause, citizenship data can play no role in either the interstate or intrastate apportionment of the House, except possibly for a districting task that I suspect is beyond the technical expertise of the late Thomas Hofeller and his merry band of mapmakers.

Let’s start with the Constitutional text, as is typically helpful. In 1866, the Thirty-Ninth Congress carefully considered and revised the basis of apportionment for the House. Here is the relevant portion of the Fourteenth Amendment that they drafted and the states ratified:

“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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.”

The apportionment basis is clearly “persons,” and not “citizens.” Indeed, the only persons excluded from the apportionment basis are “Indians not taxed.” Why? Well, everyone else is subject to taxation, hence everyone besides “Indians not taxed” is a member of the political community. (Indians in tribal relations were not subject to taxation when the Fourteenth Amendment was crafted.)

The result is that all persons, not just (eligible) voters, not just citizens, and not just inhabitants, provide the basis for House apportionment. The 39th Congress took at least five votes to make (eligible) voters or citizens rather than persons the default basis for apportionment. All five times it chose persons rather than voters or citizens.

Some have argued that some or all aliens should be excluded from the apportionment basis because they are not inhabitants, David Rivkin and Richard Raille among them. They are mistaken. Henry Bromwell used the term “inhabitants” when describing the default basis of apportionment in a proposal that was the progenitor of the Penalty Clause in its final form. The next day John Broomall switched back to using “persons,” the term that appears in all but one other proposal restating the basis of apportionment.

Moreover, Rivkin and Raille are mistaken about the import of the word “inhabitants.” In fact apportionment is based on the number of “persons in each state,” not inhabitants. Section 2, of course, does employ the word “inhabitants,” but only in the Penalty Clause. Why? So that if I visit Pennsylvania on election day I can’t complain that the Keystone State denied or abridged my right to vote if I am not an inhabitant of Pennsylvania. But it is not only “inhabitants” that are counted in the initial apportionment. It is the number of persons.

In sum, when the 39th Congress crafted Section 2 of the Fourteenth Amendment it employed great care in its use of persons, inhabitants, and citizens.

That leaves us to ask what role citizenship data can play in the intrastate apportionment of the House. This is known as “districting” (or “redistricting”).

Neither Section 2 of the Fourteenth Amendment nor the original Representation Clause in Article I, section 2 says a word about electing representatives from districts. Thus, it is not surprising that the 39th Congress did not speak directly about the apportionment basis for drawing House districts within a state. Nevertheless, there are lessons to be drawn from the Penalty Clause.

On the last day of Senate debate on the Fourteenth Amendment, Maryland Democrat Reverdy Johnson made a last, futile attempt to block the Penalty Clause. He argued that the Penalty Clause would “deny to the black man the right of representation unless the State shall secure to him the right of the franchise.” Johnson got this completely wrong as we can see from the example in my previous piece on the Penalty Clause.

In that piece I took Texas’s stipulation that 608,470 of its adult citizens were without satisfactory voter ID and used this as the number of Texas adult citizens whose right to vote had been abridged. Using the data from the 2010 American Community Survey that scaled up to an apportionment penalty of 969,965. That’s 361,495 greater than 608,470. What 361,495 Texans are these? Citizens, aliens, adults, minors? The answer is none of the above. Recognizing that we cannot identify these 361,495 helps us to understand that the 608,470 Texans without satisfactory voter ID were not denied representation in the House. They were denied participation in choosing that representation.

A better way to understand this is to see that the penalty of 969,965 is 3.83% of Texas’s entire population. In my hypothetical, Texas as a political community in its entirety, would be subject to a penalty of 3.83%, every citizen, alien, adult, and minor. Only on Reverdy Johnson’s interpretation would a particular 3.83% of them go unrepresented.

If the Fourteenth Amendment is best understood as leaving everyone in a state an equal participant in the state’s apportionment basis for the House, even after the application of the Penalty Clause, then there is simply no way to infer that the amendment privileges any particular persons with respect to a state’s intrastate apportionment for the House.

In the first Apportionment Act of 1872, Congress specified that representatives from states with more than one be elected from “districts composed of contiguous territory, and containing as nearly as practicable an equal number of inhabitants[.]” The debate on adding this provision is not the stuff of greatness. It takes less than one column in the Congressional Globe. It begins with Virginia Republican James Platt noting:

“There is no provision of law that I have been able to discover which provided that the State Legislatures in districting the States for congressional Representatives shall make the districts contain an equal number of inhabitants. There is nothing to prevent a State, if it chooses to do so, from making half a State one congressional district and dividing the rest of the State among the other members. They can make one district containing any population they choose, and the other districts with as small a population as they choose.”

Michigan Republican William Stoughton objected that a state’s legislature might want to draw districts in anticipation of much more rapid “population” growth in one part of the state than another. That was the entire debate. After that the House approved Platt’s amendment without a recorded vote.

Platt’s text remained basically unchanged in the apportionment acts following the next four censuses. (1882–1911) All of these were passed after Congress enacted the first statutes declaring certain aliens to be illegally present. At no point during the apportionment act debates of 1881–1911 did anyone suggest that Platt’s text be read to exclude any aliens from the basis of intrastate apportionment.

Since the last of these (1911), none of the apportionment acts has contained any text concerning the relevant numbers of anything in a congressional district. But, in the hundred years since then, the Supreme Court has made clear that congressional districts must be equally apportioned on the basis of the number of persons, not the number of citizens.

Daniel Webster had first hinted at the argument that districts should be equally apportioned in a Senate report on the apportionment bill of 1832. There, he commented that drawing two districts with 50K persons each and a third with only 25K would be “unjust.” While he acknowledged that the idea was beyond the scope of the Representation Clause, his argument took on legal force when the Equal Protection Clause became part of the Constitution.

Beginning in the 1960s, the Supreme Court took up Webster’s mantle, and has always used “persons,” not citizens as the basis for equal apportionment under the “one person, one vote” principle. For instance, in Wesberry v. Sanders, Justice Black wrote of our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives. (Emphasis added.)

So, what role might be left for citizenship data in the intrastate districting of House seats? Thomas Hofeller and his merry band of mapmakers could theoretically try to draw districts that equalize the number of persons and the number of citizens. There would be nothing constitutionally infirm about that, but I suspect it would over-constrain the problem.

The other possibility is that Congress could mandate that House districts be drawn with an equal number of citizens rather than an equal number of persons. I think that would be unconstitutional, but one thing would be clear. Under its Times, Places and Manner powers Congress can impose a mandate on how House districts are drawn (provided the mandate itself is constitutional). The president has no such power.

Michael L. Rosin is a guest contributor and a constitutional historian. He is the author of amicus briefs in Equal Citizens’ Equal Electors litigation in Coloradoand Washington. He can be reached at mlrosin@att.net.

Equal Citizens

A conversation about (finally) achieving political equality.

EqualCitizens.US

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Equal Citizens-a nonprofit organization founded by @Lessig-is dedicated to reforms that will achieve citizen equality. #fixdemocracyfirst

Equal Citizens

A conversation about (finally) achieving political equality.

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