Joseph Fishkin is the Marrs McLean professor in law at the University of Texas at Austin.
Since the first Census Act of 1790, our government has endeavored to count every person living in the United States. Everyone — even an immigrant fresh off the boat and a newborn baby — matters. They all count equally for allocating political power, regardless of their eligibility to vote.
There was one exception: former slaves and their descendants, who finally counted equally under the law after a horrific Civil War and passage of the 14th Amendment. The amendment, ratified 150 years ago this month in 1868, eliminates the three-fifths clause and holds that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state.”
In other words, representation under our Constitution is not just for voters — it is for all the people. But this bedrock American constitutional idea is now under attack.
In courts, in state legislatures and even within the federal government, right-wing activists are advancing a narrower idea of who counts. The state of Alabama recently sued the Census Bureau, arguing that despite the Constitution’s clear text and two centuries of unbroken constitutional practice, the bureau today should read the words “whole number of persons” as though they meant all persons except illegal aliens.
Legally, this claim is frivolous. But it’s part of a serious, revolutionary campaign to redraw the map of representation in the United States so that it is based exclusively on citizens, or eligible voters, rather than all the people.
A lawsuit attempting to force this change on state redistricting in Texas made it all the way to the Supreme Court. The plaintiffs lost, 8 to 0, in 2016, but the court did not entirely resolve whether states or localities could make the change through legislation. In Missouri, a bill to do just that passed the state’s House in May. And Kansas Secretary of State Kris Kobach and others have successfully urged the commerce secretary to add a citizenship question to the census, a drastic, last-minute change that will make the entire census less accurate by discouraging noncitizens from taking part in the count. The government says it is making this change to help the Justice Department enforce the Voting Rights Act, but this excuse never made much sense and is now falling apart as a lawsuit uncovers internal government emails about the decision.
The real goal of all these efforts is to maintain a grip on political power in the face of demographic change by shifting representation away from areas with large numbers of immigrants and children and toward areas whose populations are older and whiter. It’s a naked political power play, but one that its advocates clothe in various claims of principle, especially the claim that only voters really deserve representation.
That may sound plausible. Actual representation — where you vote to pick your representative — is certainly better than virtual representation, where you do not. Opponents of women’s suffrage famously argued that women didn’t need the right to vote because they were virtually represented by their male relatives. We’ve correctly consigned that argument to the dustbin of history.
But virtual representation is an inevitable feature of any democratic system. Any society with children relies on it. So does any society with immigrants. People who cannot vote depend on their parents and neighbors to choose representatives, and this works better than one might expect. Americans tend to have much in common with our neighbors, not only in terms of political party, race and class, but also because many local issues affect everyone living in a given community. That last idea is central to our constitutional design.
Why do we count all the people? Because they are part of our communities. They pay taxes to our governments and enjoy the benefits and burdens of our policies and laws. A neighborhood playground needs the same amount of money for repairs regardless of whether the children playing there are citizens — and regardless of whether some of their parents are ex-felons the state has disenfranchised. When a hurricane strikes, voters and nonvoters alike call out desperately to their representatives for help. Resources and power are scarce. Our framers understood that the only fair way to allocate them was to count all the people equally. If we throw away this rule, we enter a world where politicians can much more easily shift political power away from groups they dislike by altering naturalization laws, felon disenfranchisement laws, the voting age and so on.
Contemporary conservative activists could learn something from the framers. There were plenty of immigrants in both 1790 and 1868. The census aimed to count them all, regardless of citizenship status, because they’re all part of “the people.” We should hold onto this idea. Small-c conservatives, textualists and especially originalists should resist partisan efforts to trash yet another American constitutional norm in pursuit of power.