"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. " U.S. Constitution, Article I, section 2 (3).
Let us begin, first, with the long-term historical interest of this now-infamous passage. Readers today are most likely to pick out the 3/5 clause. Today many black and white Americans believe that it defined black people as 3/5 of a person, as Spike Lee, for instance, claimed in one of his movies. It did not: the Founders in this as in other passages--as historian Sean Wilentz has just pointed out in a new book--carefully avoided any explicit mention of race, or of the institution of slavery, in the text of the Constitution. Moreover, the southern slave owners, not the northerners whose states were then abolishing slavery, wanted to count all their slaves in the census that would determine how many representatives they sent to Congress, and the 3/5 rule was a compromise that marginally favored the southern position. I can't resist noting, also, that the original Constitution is equally free of racist and sexist language. In the trailer for On the Basis of Sex, the forthcoming biopic about Ruth Bader Ginsburg, we see a dismissive white male justice tell then-attorney Ginsburg that "the word woman" does not appear in the US Constitution. "Neither does the word 'freedom'," she replies. The real Ruth Bader Ginsburg, I would like to think, would have responded--accurately--"Neither does the word 'man.'" The founders' chosen word to refer to inhabitants of the US, as shown in the passage above, was "persons"--one just as useful in the cause of equality today as it was then. Yet young people today routinely refer to the founders as "those white guys" who cared about nothing but themselves.
The question I really want to address today, however, relates to the broader purpose of the above paragraph, the enumeration of inhabitants and the purpose which it is supposed to serve. The same issue found its way into the 14th amendment, the post-Civil War Republicans' first attempt to secure the rights of freed slaves and enshrine the outcome of the conflict. It included the following:
"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."
This clause, to begin with, makes even more explicit what the original Constitutional provision clearly implied: that the decennial census must count all inhabitants of each state, not simply all citizens--the point that has become relevant again today. What I only learned relatively recently is that this clause was designed to encourage the readmitted southern states to allow freed slaves to vote. Previously, under slavery, they had black inhabitants had counted at the rate of 3/5 of their numbers; now, if the southern states refused to let them vote, they would not count at all. The Republicans also favored this solution because they were frightened to simply degree Negro suffrage (as it was then called) in the Constitution, fearing that many northern states, sadly, would reject it. Under this clause the southern states had to choose between severely reduced representation and letting all adult males vote. Unfortunately this tactic failed. The former confederate states uniformly refused either to ratify the 14th amendment or to grant black citizens voting rights. The 15th amendment followed in short order, and the northern states did ratify it.
Here, for the first time, sexism did find its way into the US Constitution--while this passage certainly does not clam that only men can vote, it denies women any specific constitutional right to do so. As a matter of fact, 16 states--a third of the total--granted women the right to vote before the ratification of the 19th amendment in 1920. At no time did the US Constitution prohibit women's suffrage.
And now, in 2018, the original passage from Article I has become controversial again, thanks in part because of the distinction that was implied in that passage and made explicit in the 14th Amendment: the distinction between inhabitants, who reside within the states and must be counted for the purposes of apportionment, and citizens, who now enjoy the right to vote. The number of inhabitants of the US who are not citizens is probably at an all time high at this moment. These include an estimated 13 million lawful permanent residents, or Green Card holders, who are eligible to become citizens but have not yet done so, and a comparable number of illegal aliens who at this time have no path to citizenship. Illegal aliens (referred to on the left now as "undocumented") are often estimated at 11 million, but a recent study, which appears to be carefully researched, showed that the number could easily be as high as 22 million. A new controversy has arisen because the Trump Administration wants to add a question to the census--one that has been part of the questionnaire in earlier periods--asking whether the respondent is a US citizen. Various states are suing to try to keep that question out of the census.
I hope my regular readers have come to understand that I have a real obsession with fairness, and with trying to identify workable, impartial rules to meet all sorts of legal and political situations, rather than simply to focus on what will help, or hurt, causes which I happen to favor. That often divides me nowadays from many of my fellow Democrats. The states and liberal activists oppose this question because they feel that it is designed to intimidate illegal aliens and cause them not to participate in the census, leading to an undercount. That may be true. I on the other hand find the question not only reasonable, but necessary, if we are to try to deal realistically with the presence of 11 million or 22 million illegal immigrants within the US. It seems to me that we all should care enough about this situation to try to find out the truth, whatever the motives of the administration happen to be. I also believe that the present situation is not one that we should be trying to perpetuate.
A great many illegal immigrants live in blue states--although some red states, led by Texas, have large populations of illegals as well. The Democrats are worried that if a great many of them avoid the census, their states will be undercounted, leading to a reduction in federal benefits allocated to their states, and even, possibly, a reduction in the number of representatives in Congress they receive in the next reapportionment. What really disturbs me about all this is that the leadership of the Democratic Party seems to have dropped any demand for a path to citizenship for our 11-22 million illegal aliens, the vast majority of whom hold down jobs, obey the law, and are raising families. The Democrats are finding it more expedient to focus on DACA and the dreamers, a more appealing group from a public relations standpoint, but who represent only a fraction of the real problem. Ironically, by pushing for the fullest possible count of inhabitants both legal and illegal, while failing to push for a path to citizenship, the Democrats are echoing, weirdly, the position of the antebellum white southerners. While they want these people counted to get full benefits and representation for their states, they don't particularly care if they get to vote. And they seem comfortable with this position even though the current situation, like the situation in the South from 1876 to 1965, obviously undermines American democracy. In each case, we have a large working population--most of it in the lower economic half of our society--who cannot vote. That obviously skews national, state and local politics rightward, and helps perpetuate, and worsen, economic inequality.
On too many issues--especially economic ones--the Democratic Party has been reduced to calling for marginal changes that appear to at least check the prevailing trends in our political and social life, rather than make a fundamental attack on the ills of our age. This also seems to me the problem with their stance on immigration. Yes, DACA recipients deserve protection, and yes, the increasingly aggressive persecution [sic] of illegal residents by ICE needs to stop, but the only real solution to our demographic problem today is a path to citizenship, even if it has to be combined with new and more severe restrictions on additional immigration. We must not in my opinion try to sweep the issue under the rug, as we did the issue of suffrage for black Americans for 90 years. I hope to live to see some real progress on this issue.