Every night and every day now
Never meaning what they say now
Never saying what they mean
Joe South
I. The Three Fifths Compromise
"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." (Article I, Section, 2 Clause 3)
We are born into history at a specific time and place. They become our given. Some accept them as natural, some shrug, and some see how different things could be--and act.
It is a matter both of wonder and regret, that those who raise so many objections against
the new Constitution should never call to mind the defects of that which is to be exchanged
for it. It is not necessary that the former should be perfect; it is sufficient that the latter is
more imperfect. No man would refuse to give brass for silver or gold, because the latter
had some alloy in it. No man would refuse to quit a shattered and tottering habitation for
a firm and commodious building, because the latter had not a porch to it, or because some
of the rooms might be a little larger or smaller, or the ceiling a little higher or lower than
his fancy would have planned them. But waiving illustrations of this sort, is it not manifest
that most of the capital objections urged against the new system lie with tenfold weight
against the existing Confederation?... Is the importation of slaves permitted by the new
Constitution for twenty years? By the old it is permitted forever. (James Madison, The
Federalist Papers, No. 38)
One day, when our lives are a distant memory, some will look in the rear view mirror and wonder why we did not do more to protect the planet. They will shake their heads and wag their tongues. But we understand that, no matter how much the former President of the United States wanted to make the necessary adjustments, the opposition in the House and the Senate would not permit it. And so, as the leader of the Republic, he did what was possible, not what was perfect.
Whenever the three-fifths clause is brought up, it is, usually, done in condemnation. But what gets lost are the circumstances. Without that compromise, "the more perfect Union," to cite the Preamble, could not have been formed. The Articles of Confederation, which were inadequate in war and peace, would have remained in place. And the United States of America would have been a name, not a reality.
It were doubtless to be wished, that the power of prohibiting the importation of slaves had
not been postponed until the year 1808, or rather that it had been suffered to have immedi-
ate operation. But it is not difficult to account, either for this restriction on the general
government, or for the manner in which the whole clause is expressed. It ought to be
considered as a great point gained in favor of humanity, that a period of twenty years may
terminate forever, within these States, a traffic which has so long and so loudly upbraided
the barbarism of modern policy; that within that period, it will receive a considerable
discouragement from the federal government, and may be totally abolished, by a concur-
rence of the few States which continue the unnatural traffic, in the prohibitory example
which has been given by so great a majority of the Union. Happy would it be for the unfortu-
nate Africans, if an equal prospect lay before them of being redeemed from the oppressions
of their European brethren! Attempts have been made to pervert this clause into an object-
ion against the Constitution, by representing it on one side as a criminal toleration of an
illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations
from Europe to America. I mention these misconstructions, not with a view to give them an
answer, for they deserve none, but as specimens of the manner and spirit in which some
have thought fit to conduct their opposition to the proposed government. (James Madison,
The Federalist Papers, No. 42)
The South wanted to count blacks as whole persons, not because of their big hearts and great spirits, but for power. They would then have had increased representation in the House. And looking back at how things played out, one does not need much imagination to see the additional stumbling blocks that would have been placed in the path of progress.
II. Districts
"Representatives...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...and...three fifths of all other persons." (Article I, Section 2, Clause 3; emphasis added)
Some changes were made. But the more things change, the more they stay the same.
"Representatives shall be apportioned among the several States according to their respective numbers, counting the WHOLE NUMBER of persons in each State...." (Fourteenth Amendment, Section 2; emphasis added)
Instead of the total population in a district, the plaintiffs in Evenwel v. Abbott wanted to count eligible voters only. But the Constitution refers to the "the whole number." Yet the self-styled "conservatives" or "strict constructionists" on the Supreme Court, who are supposedly strong on "original intention," accepted a case in which the plain language of the supreme law of the land was suddenly subject to question, which is the definition of a frivolous lawsuit. And so, it has come to this. There was cause for celebration when the nation's highest tribunal ruled in Evenwel v. Abbott--and saw the obvious.
"We hold, based on constitutional history, this Court's decisions, and longstanding practice, that a State may draw its legislative districts based on total population.
III. Who Counts?
"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." (Article I, Section 2, Clause 3)
The Constitution links "the whole number" to "the actual enumeration." There is no mystery as to why.
"An actual census or enumeration of the people must furnish the rule, a circumstance which effectively shuts the door to partiality or oppression." (Alexander Hamilton, The Federalist Papers, No. 36)
The first line of the Census Act of 1790 left no doubt as to its purpose--"An Act providing for the enumeration of the inhabitants of the United States." And those who were to do so took an oath to conduct "a just and perfect enumeration and description of all persons resident within my district." Furthermore, in Utah v. Evans, the Supreme Court approved statistical methods that were intended to include all inhabitants.
What is the source of confusion?
The change in position of the self-styled "conservatives" or "strict constructionists" seems a matter of convenience that meets the needs of a boa. Thus, those who seek such an advantage could be re-styled and re-dressed as "conveniencatives" or "slick constrictionists." But the description does not matter as much as the deed, however clever, or in this case, poor the disguise.
A constitutional requirement must be protected, and any attempt to disrupt the count--whatever the pretext, even under color of law--must be challenged. For here the self-styled "conservatives" or "strict constructionists" go again. They sow doubt with their deeds and pose an unstated question: Do you matter?
IV. One...Two...Three...
"The United States shall guarantee to every State in this Union a republican form of government...." (Article IV, Section 4)
After the Civil War, and a nod to Article I, Section 2, Clause 3, which, as Hamilton noted, "effectively shuts the door to partiality or oppression," a new provision supported the guarantee: "But when the right to vote at any election...is denied to any...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...citizens shall bear to the whole number of...citizens (eighteen) years of age in such State." (Fourteenth Amendment, Section 2; the citation has been adjusted to reflect subsequent amendments that gave women the right to vote in all the States and that lowered the voting age to eighteen; emphasis added) By reducing their Representatives in proportion to the number of those denied the right to vote, States can be punished. So despite the gutting of Section 5 of the Voting Rights Act in Shelby v. Holder, the Executive may go to a District Court, in response to recalcitrant States, by relying on the Constitution itself; and citizens can do so with respect to the same and to last minute changes to the census.
(c)2018 Marvin D. Jones. All rights reserved.
1) https://youtu.be/vDeVonv3kY0 [Oh the games people play now]
2) https://www.thenation.com/article/the-new-attack-on-one-person-one-vote/ [Evenwel v. Abbott]
https://www.brennancenter.org/legal-work/evenwel-v-abbott
https://www.cnn.com/2016/04/04/politics/conservatives-lose-key-supreme-court-voting-rights-case/index.html
https://www.supremecourt.gov/opinions/15pdf/14-940_ed9g.pdf
https://www.nytimes.com/2012/02/24/us/edward-blum-and-the-project-on-fair-representation-head-to-the-supreme-court-to-fight-race-based-laws.html [background: Edward Blum was involved in Shelby v. Holder and Evenwel v. Abbott]
3) https://www.heritage.org/constitution/#!/articles/1/essays/7/enumeration-clause [the enumeration clause]
https://www.census.gov/history/pdf/1790_Census_Act.pdf [Census Act of 1790]
http://www.msnbc.com/rachel-maddow/watch/trump-aims-to-pervert-census-count-with-citizenship-question-1196583491634 [the census question challenged]
