No idea is more central to the entire history of America’s constitutional government than the belief that the people are capable of governing themselves. And equally durable is the belief that the people govern themselves best through representatives that they choose at free elections. To those representatives, the people give their consent to being governed.
Those ideas were expressed in colonial-era pamphlets in the 1760s, in the Declaration of Independence in 1776, and in the Constitution itself in 1787. That was the real meaning of the rallying cry of the Revolutionary era, “No taxation without representation!” It is fair to say that most Americans today, if they think about it, continue to hold those beliefs.
But what is still debated vigorously, even after 232 years of constitutional history, is this: who is represented by those who have been chosen to govern? In other words, who is in the political community whose interests the representatives are supposed to serve?
That issue was the one most energetically debated at the Constitutional Convention in 1787, the issue that nearly caused a deadlock with a risk of total failure in drafting the basic document. The Founders overcame that threat, writing a Constitution that was remarkably open and inclusive about the nature of representation in the new republic.
The final document followed the principle that Alexander Hamilton had summarized at the Convention: “There can be no truer principle than this – that every individual of the community at large has an equal right to the protection of government.”
Then, as now, some part of the continuing debate over representation has been influenced by nativist sentiment, the notion that the American experiment was to be shared mainly by those with common cultural ties to this nation, and not genuinely open to those who are “different.” That sentiment produced periodic policies of exclusion – well-known examples were Asians, Africans, the Irish, East Europeans, and Jews.
The debate has reopened, sometimes in noxious terms, in the modern era in a more culturally diverse – and culturally divided — nation. Most recently, in the Trump era, nativism and cultural nationalism have reappeared: in presidential tweets, a proposed “Muslim ban,” plans for a wall to close the nation’s Southern border to migrants, a narrowing of the opportunity for refugees to receive asylum in America, planned deportation raids aimed – rhetorically, at least — at millions of “illegal aliens,” and, just this week, fast-tracking deportation of undocumented immigrants without a court hearing.
But that sentiment, in whatever particular form it shows up anew, does not provide a complete explanation for the ongoing debate about entry into, or exclusion from, America’s political community.
Throughout its history, America has actually had two political communities, not one. There is the community of the whole of the people, with many interests and aspirations that make up the agenda for potential action by government – the community that Alexander Hamilton had in mind in 1787.
That community is not defined by who is a citizen, or by who has a right to vote. It includes children, who have never been allowed to vote. Still, children surely have interests that government should serve. Women, too, have always had interests in need of protection, before they got the vote nine decades ago.
The other community is more limited. It is composed of those who have the right to vote, and thus have the profound civic privilege of electing the representatives who govern. They vote, supposedly, on behalf of all of the people – at least that is the ideal notion.
The nation has just gone through, once again, a new round in the unending debate over who actually counts in America, in the most basic political sense. That debate was at the core of the heated controversy over whether the Trump Administration could ask everyone in America, as part of the 2020 census, about their citizenship.
Although President Trump and his advisers reluctantly decided not to go forward with that idea, in the wake of a Supreme Court decision last month, the idea has not been abandoned altogether. Indeed, President Trump has ordered government officials to find a way to put that question on the 2030 census.
In addition, Attorney General William Barr has announced that the Justice Department is studying the idea that, in counting the nation’s population for purposes of dividing among the states the 435 seats in the U.S. House of Representatives, the government should not include “illegal aliens” – that is, foreign nationals who live in the U.S. without legal permission to be or to remain in the country.
While the attorney general spoke only of omitting “illegal aliens” from the process of apportioning U.S. House seats, that is, in fact, the process that the Constitution ties to the census that is taken every ten years. Article I mandates an “actual enumeration” of the “whole number” of people, and that number is divided to allot those seats.
Undocumented immigrants, now numbering 12 million or more, do not have the right to vote because they are not U.S. citizens. Citizenship is the most basic qualification for the right to vote.
However, the reality, in all of America’s past and still true, is that not all citizens have the right to vote. “Universal suffrage,” in the sense that every citizen is entitled to vote, has never been the case. Again, children are citizens, but they cannot vote until they reach age 18. In most states, a person convicted of crime and sent to prison loses the right to vote, but is not made stateless through loss of citizenship.
Beyond that, it is a fact of history – although it makes modern commentators uncomfortable to recall the fact — that the slaves held in bondage in the Southern states at the time the Constitution was written were among the people who were represented. While absolutely excluded from citizenship, they were counted in the census (although each counted only as three-fifths of a person).
No less a constitutional authority than James Madison defended that arrangement, although he did so grudgingly, in one issue of the Federalist Papers (No. 54) in 1788, as he pressed for ratification of the document as written in Philadelphia.
He was willing to acknowledge, although he said it was a “strained” argument made by the South, that the three-fifths clause could be understood as recognition that slaves were human beings as well as property.
The numbers of slaves in the states where they were held was a factor in the number of House seats and the number of Electoral College votes allotted to those states, and that fact continued for 81 years, until the Fourteenth Amendment made the freed slaves citizens and declared that they were to be counted as whole persons. (Two years later, the Fifteenth Amendment gave them the right to vote – 50 years before the Constitution did so for women.)
It thus has never been the case that only citizens were represented in America’s national government. Still, the question persists: but what about “illegal aliens”? They have no path to citizenship and certainly cannot become voters, so why count them as part of the political community entitled to representation?
One argument, based on interpretations of Supreme Court decisions going back to at least 1950, is that those who have not gained the status of legal residents do not have full constitutional rights, and thus remain – to a considerable degree – strangers to the Constitution.
Under that view, they may not be treated inhumanely, but they have rights only on a “sliding scale”: that is, until they establish some kind of connection to the United States, they are regarded as still beyond the borders awaiting permission to enter. The theory is that, the longer they stay, the more rights they may acquire – but still not a right to vote.
The Supreme Court majority relied partly on that concept as recently as last year, in allowing the Trump Administration to put strict limits on entry into the U.S. of travelers from several foreign nations with Muslim-majority populations.
A more robust version of that limited rights doctrine was put forth two years ago by a group of 11 states, led by Texas. They tried to persuade the federal courts – including the Supreme Court – that female teenagers who entered the U.S. illegally and were detained by authorities had no right to abortion if they were or became pregnant. That case ended without a final ruling directly on that argument.
The most aggressive version of this argument is usually associated with one of the nation’s highest profile challengers of “illegal immigration” – Kris W. Kobach, a former Kansas Secretary of State and a sometime policy adviser on immigration to President Trump.
Much of Kobach’s public career has been spent on helping states and cities resist immigration, and he has been among the most devoted advocates of requiring voters to have photo IDs and proof of citizenshis, as part of his effort to assure that undocumented immigrants do not vote. President Trump chose him to lead an ill-fated commission that sought, without success, to prove that voting fraud was widespread, including illegal voting by non-citizens.
As Kobach views “illegal aliens,” they are people who entered the country without permission and simply never become residents — and definitely not in a sense recognized in law.
Two years ago, while still holding his state post and while working with the White House, Kobach became a key figure in the lawsuit in federal court in New York City that led to last month’s Supreme Court decision against the inclusion of a citizenship question on the 2020 census.
In early April 2017, according to evidence in the court record in that case, Commerce Secretary Wilbur Ross – who supervises the census – was asked by White House adviser Steve Bannon if Ross “would be willing to speak to Kansas Secretary of State Kris Kobach about Secretary Kobach’s ideas about a possible citizenship question on the decennial census.”
In one of several conversations that followed between Ross and Kobach, they discussed the potential impact on congressional seat apportionment if a citizenship question were posed on the census form, the court record shows.
In an email to Secretary Ross, in July 2017, Kobach followed up on their April conversation. Here is how the federal judge in the census case described that July email:
“Kobach wrote that the lack of a citizenship question on the census ‘impairs the federal government’s ability to do a number of things accurately,’ and ‘also leads to the problem that aliens who do not actually ‘reside’ in the United States are still counted for congressional apportionment purposes.’ ”
“The problem” that Kobach cited is a summary of the argument that – despite what Article I says about representation based on the “whole number” of the population – those who enter the nation illegally and stay should not be represented. And that is at the core of the new study that Attorney General Barr disclosed this month.
But if there is going to be an attempt to achieve that result, how might it be done?
First, it could be done by constitutional amendment. A Republican congressman representing Ohio’s Eighth District, Representative Warren Davidson, is gathering co-sponsors for what is called the “Fair Representation Amendment.” It would alter both Article I and the Fourteenth Amendment.
The language of that proposed new Article (House Joint Resolution 34) is simple and direct: “Representation shall be apportioned among the several States according to their respective numbers, which shall be determined by counting the number of persons in each State who are citizens of the United States.”
The chances of that amendment gaining approval in the House of Representatives, under Democratic control, seem non-existent. It is widely understood (and this became a factor in the court cases over a citizenship question on the census) that leaving undocumented immigrants out of the census will largely benefit Republicans because those immigrants are largely concentrated in states that are Democratic strongholds, adding to their delegations in the House and their Electoral College votes.
But is a constitutional amendment the only way to bring about their exclusion from the represented community? There is a good deal of history that seems to say that.
In the 1920s, amidst a wave of anti-immigration feeling across the nation, a series of proposals offered in Congress sought to exclude non-citizens from the apportionment formula, but the Senate’s legal counsel advised that a constitutional amendment was the only option.
The same view prevailed in 1940. There was widespread fear about the global spread of Communism, leading to several proposals in Congress that would have excluded from the apportionment formula any foreign national living illegally in the U.S
A leader in Congress at the time, Democratic Rep. Emanuel Celler of New York, commented: “The Constitution says that all persons shall be counted. I cannot quarrel with the founding fathers.”
It is not, however, a legally settled conclusion that it would take a constitutional amendment to deny representation to illegal immigrants. As one academic study noted, “the constitutionality of excluding illegal immigrants from the apportionment has yet to be decided by a court of law.” Because that remains an open question, some scholars have argued that Congress could simply pass a law to accomplish that exclusion, relying on its constitutional power under Article I to decide how the census is to be conducted. If the courts won’t decide it, Congress need not leave the issue unresolved, or so that argument went.
There have been attempts, though, to test that constitutional issue. As the 1980 census approached, and again as the 1990 census was nearing, a conservative advocacy group – the Federation of American Immigration Reform (FAIR) — led a group of challengers into the courts, first in Washington, D.C., and then in western Pennsylvania, to raise the issue.
Both cases were dismissed – in 1980 and 1989 — without a direct ruling on the constitutional claim. The challengers were found to have failed to show that they would suffer legal harm if “illegal aliens” continued to be counted and included in the apportionment formula; because of that failing, they technically had no right to sue (no “standing”).
Both times, the basic argument was that, because those living illegally in America were concentrated in a few states and in large cities, those states would wind up gaining additional House of Representatives seats after each census, at the expense of states with fewer illegal residents. In both cases, the courts ruled that it was mere speculation as to what the population data gathered by the census would show about shifting of seats.
FAIR took one of those cases to the Supreme Court, but the Justices dismissed it for the same reasons as the lower court had. (Of note, the lower court in Washington, D.C., while declining to rule on the claim, did take the occasion to examine the argument on its merits and pronounced it to be “very weak,” commenting that “the language of the Constitution is not ambiguous.” That view did not set a precedent, because it was not necessary to the decision to dismiss the case.)
While those precedents against a workable court challenge have stood for more than three decades, the opponents of counting undocumented immigrants have not given up.
In fact, persistence has started to pay off, at least in a modest and temporary victory last month in a federal court in Alabama. U.S. District Judge R. David Proctor of Birmingham refused to dismiss a lawsuit filed by the state and by one of its congressmen; the lawsuit claimed that it would violate the Constitution and federal laws to count undocumented immigrants as part of the 2020 census.
Interestingly, that lawsuit, filed in May of last year, was unfolding at the same time that two other federal courts were dealing with the challenge to the Trump Administration’s plan to add a citizenship question to the 2020 enumeration.
Neither of those other cases, in New York and Maryland, dealt directly with the long-term practice of counting undocumented immigrants. That was at the heart of the case in Alabama, which relied on a variation of the view that “illegal aliens” are not actually residents of the U.S. The state government and Republican Rep. Morris Brooks contended that the census was intended to count only “inhabitants,” and that did not include undocumented immigrants.
The lawsuit directly challenged the idea that those people are part of the American political community for purposes of representation. Here is how it summarized the point:
“Representatives and [Electoral College] electors do not represent human beings in general or all persons living within the territorial jurisdiction of the United States, but rather the self-governing people of the United States, their descendants, and aliens whom the people of the United States have chosen to admit to the political community created by the Constitution through lawful immigration. Illegal aliens are not part of this political community, and are thus not entitled to political representation.”
Lawyers for the Trump Administration, defending against the lawsuit, argued in court papers that the state and Rep. Brooks did not have “standing” to file their lawsuit; they asked Judge Proctor to dismiss it. Without someone having “standing” to sue, they argued, the judge had no jurisdiction to rule.
Relying in part on the two earlier court rulings on the lack of “standing” to challenge the counting of undocumented immigrants, the Trump lawyers contended that the state and the congressman were making only speculative claims that Alabama risked losing a seat in the U.S. House if the census counted those foreign nationals, requiring a shifting of seats to states with large concentrations of those people.
Judge Proctor concluded that – at least at this early stage of the case – the lawsuit made a plausible claim that Alabama would be at risk of losing one seat in the House. He said he would revisit the issue later as the case unfolded, but that, for now, the case could move on to the next stage – preparations for a trial.
The judge’s opinion did not mention the two precedents from the 1980s on the standing issue. He did interpret three prior Supreme Court rulings, dealing with narrower issues of how the census is conducted, as indicating that a state’s loss of a House seat due to shifts in population numbers would cause legal harm to a state.
Given that Attorney General Barr has announced plans for a new study of whether to exclude “illegal aliens” from the House apportionment formula, the position that Justice Department lawyers take on that point as the Alabama case proceeds will be revealing.
If Judge Proctor does reach the merits of the constitutional claim later, the Justice Department will have to take a position on it. In that situation, would it agree with the challenge? That probably would depend upon the outcome of the study Attorney General Barr has ordered.
It seems quite likely that the Alabama case could make its way ultimately to the Supreme Court on the constitutional question.
At some point in the future, the Supreme Court probably also will be drawn back into a related controversy over the nature of representation and the definition of the American political community as it affects representation. It examined that related issue three years ago, but the ruling in the case of Evenwel v. Abbott did not produce a definite answer.
Although much of the history of court contests over the counting of undocumented immigrants has involved direct challenges to that practice, the Evenwel case involved a different test of representation. Though different, it still has implications for the larger debate over counting everyone.
The Evenwel case was not about Article I and the census, with provisions for counting everyone to apportion House seats. Rather, it was about the effect on representation of the Supreme Court’s historic embrace of the concept of “one-person, one-vote” and how it affected the process of drawing election districts for a state legislature.
The state of Texas, like all other states then and still, divided up seats in its legislature according to total population. The one-person, one-vote mandate required that all of the districts had to be equal or nearly equal in population, so that each voter in each district cast a vote that was equally weighted with every other voter’s.
If districts had significantly varying populations, those living in more populated districts would have less effective votes, because it would take more of those voting together to prevail at election time. That is what is thought of as vote “dilution.”
Two voters, Sue Evenwel and Edward Pfenninger, lived in two state senate districts that had large numbers of people who were eligible to vote or who were actually registered to vote.
They contended that, drawing district lines based on equal shares of the total population rather than on equal shares of the voter totals “diluted” their votes in the election of senators.
They argued that Texas should be required to draw districts with equal or nearly equal numbers of voters, and they contended that this actually was what the Constitution’s guarantee of voter equality commanded. That was based on the “equal protection” guarantee of the Fourteenth Amendment, as implemented by the one-person, one-vote principle.
The state of Texas defended the use of total population data, but asked the Court to go further and rule that equal protection requirements gave states complete freedom to choose any metric they wanted in drawing election districts.
The Obama Administration joined in the case, but urged the Justices not to decide whether the Constitution did or did not mandate a specific metric of representation. It would be enough, that brief argued, to rule that Texas and other states could use total population as the metric.
The Court, in a ruling that was unanimous in outcome but in which the Justices were divided on reasoning, chose not to settle the equal protection claim. “As history, precedent, and practice demonstrate, it is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts,” the main opinion declared – permissible, but not mandatory.
It thus left for a future day whether a state, if one were to opt to base state legislative districts on equal shares of the voters, could do so under the Constitution.
Along the way toward this limited decision, the leading opinion did make the point that, for purposes of allotting seats for the U.S. House, total population was the mandate of the Constitution.
That opinion commented that “the basis of representation in the House was to include all inhabitants – although slaves were counted as only three-fifths of a person – even though states remained free to deny many of those inhabitants the right to participate in the selection of their representatives.”
That decision, of course, was issued three years ago, by a Court with only eight Justices (in the wake of the death of Justice Antonin Scalia earlier that year). Now, the Court has two new conservative Justices (Justice Neil M. Gorsuch taking the Scalia seat and Justice Brett M. Kavanaugh succeeding retired Justice Anthony M. Kennedy).
And the decision was accompanied by suggestions that the ruling might not hold in the future. Justice Clarence Thomas questioned the legitimacy of the entire doctrine of one-person, one-vote, and Justice Samuel A. Alito, Jr., argued that it was an open question whether the Constitution would allow a state to base election districts on some metric other than total population, such as eligible voters.
Both of those declarations tended to raise doubts about where the Court would go in the future, not only on a new test of state legislative districting, but also on a new test of the constitutional basis for apportionment of House of Representatives seats. Such a test might come once the Trump Administration has concluded its study on representation for “illegal aliens.”