Constitutional sections discussed in Section 3:
Article I, sections: 1, 2, 3, 5, 6, 8 (Seat of Government clause)
Article II, sections: 1, 2
Article IV, sections: 1, 2, 3, 4
Amendments I, IX, X, XII, XIV sections: 1 & 2, XIX, XXI, XXV
Section 3 does not amend any text.
Who is represented?
“We the People
of the United States of America”
Article IV, Section 2:
“No Person held to Service or Labour
in one State […]”
Article I, Section 2:
“Representatives and direct Taxes […]
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.”
Before Amendment XIV, the word “people” in the Constitution sometimes means all inhabitants, sometimes only free inhabitants. A “person held to service or labor” can mean a slave (an inhabitant but not free) or an indentured servant (a free inhabitant). “[T]he whole number of free persons” starts by counting all free inhabitants including women, foreign nationals and children for representation. The clause adds 3/5 of slaves to that. “We the represented” has the same meaning as “we the People”. What it doesn’t mean is voters, also called electors. "One person, one vote" isn't remotely relevant. Representation is an Article I, Section 2 issue, not a voting issue. Voting is a privilege requiring more than citizenship (see Voting as a Right). Representation at every level of government is a personhood right, the same for all inhabitants.
Article I, Section 2:
“The House of Representatives
shall be composed
of Members chosen every second Year
by the People of the several States,
and the Electors in each State
shall have the Qualifications
requisite for Electors
of the most numerous Branch
of the State Legislature.”
A distinction is made here between “the people of the several States”, who choose, and “the Electors in each State”, who vote. Citizens are a subset of the people and eligible voters are a subset of citizens. Because not all citizens are eligible to vote, neither clause that guarantees citizens equal privileges
(Article IV, Section 2; Amendment XIV, Section 1) refers to voters’ privileges.
Evenwel relies on a basic error in logic, the converse claim: if one person equals one vote, then one vote must equal one person. "Voters equal people in districting" creates first- and second-class personhood. Voters' rights don't mean "rights created by being a voter (as opposed to a nonvoter)". Voters can't have rights as opposed to other people
(see the Elections section for real voters' rights, that don't make this error).
Representation isn’t restricted to eligible voters because that would make voting eligibility, which can still vary from state to state depending on criminal conviction or rebellion, a requirement for representation in United States government,
which can’t (and which includes representation at the state level).
In 1787 voting criteria varied from state to state by age, race, gender, property ownership, and so on. Before the Industrial Revolution voting was roughly by household. “Electors” in Article I, Section 2 means only people who are eligible to vote, but “people” here means all represented inhabitants. That is, electors and all their dependents: wives, sisters, widowed mothers, daughters, male relatives without property or below voting age, employees and free servants, because any of these people might contribute an opinion to the elector’s vote.
No state had majority voting eligibility then. Today every state has, with a long-term trend of increase. In 1787 women weren’t eligible to vote in most states but were citizens, undeniably represented in Congress and state legislatures. Without expressing this, Article I definitely doesn’t exclude them: women could, and did, serve as legislators without the vote (see the Restoring Text footnote). Only citizens can.
In the same way, every child is a citizen, represented in Congress and his or her state legislature but isn’t eligible to vote. Classes sometimes write to their Senators and Representatives, a favorite letter for a member to receive. Article I could easily have excluded women or children. It doesn’t.
Indentured servants were free but their indentures could forbid their becoming citizens before completing their term of service, keeping them foreign nationals until then. When they weren’t citizens they weren’t eligible to vote (see Foreign Nationals and Voting). But the clause counts them for representation as “free persons […] bound to service for a term of years”. Notice how detailed the clause is. If citizenship was required the clause would simply distinguish between citizen and foreign national indentured servants. It doesn’t, so it doesn't limit representation by citizenship. Inhabitants who are foreign nationals count for apportionment and districting, and are represented in Congress and state legislatures.
Amendment XIV, Section 1:
“All persons born or naturalized
in the United States
and subject to the jurisdiction thereof,
are citizens of the United States
and of the State wherein they reside.
No State shall make or enforce any law
which shall abridge the privileges or immunities
of citizens of the United States; […]
nor deny to any person within its jurisdiction
the equal protection of the laws.”
Both Article I and Amendment XIV identify Indians as citizens of their own nations, even when they married United States citizens and owned property. They weren’t represented in Congress, taxed, eligible for citizenship or subject to state or United States jurisdiction. The tribal lands with jurisdiction over them were within the United States: they had recourse to them without leaving the United States. Native Americans were offered dual citizenship in 1924, including dual jurisdiction: tribes retain jurisdiction on tribal lands within the United States. This distinguishes Native Americans’ situation from that of resident foreign nationals, who are subject to no other jurisdiction within the United States but those of the United States and of the state they live in.
But only 3/5 of slaves counted. Slaves and their descendants were (implied) citizens of their nations of origin, but they were permanent and sometimes multigenerational inhabitants. Isn’t this vague?
How could 2/5 not count?
Slaves were human property. As property they had no representation in Congress. As people the representation they had wasn’t representation they could use. Their owners sometimes listed them as dependents with a status somewhere below legal competence. They could be considered people or property in legislation as it suited the community’s or their owners’ needs. They could often be tried for crimes but couldn’t initiate suits, or make contracts without owner authorization, even marriage contracts. Their situation was unique. If forced to be consistent, the 3/5 compromise can be read to forbid representation to the extent that a person can be property.
Amendment XIV, Section 2:
“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.”
In 1868, with neither slavery nor indenture legal anymore, Amendment XIV, Section 2 removes the 3/5 compromise and the “free” requirement. Because in Article I free inhabitants are represented whether they are citizens or not and Amendment XIV doesn’t reduce this, “persons” in “the whole number of persons” now means simply “inhabitants”. It has a plain meaning, not subject to interpretation.
A brief look at the first census in 1790 (only months after the last state, Rhode Island, ratified) confirms that we included women, children and foreign nationals. It used six categories: head of household, other free white males over age 16, free white males under age 16, free white females, other free persons, and slaves. People with no settled residence were tallied wherever they were on the first Monday in August. People who lived in the United States part-time were tallied “where they usually reside in the United States.” Representation is not limited to a state’s eligible voters, or to citizens.
In 1800 two organizations, including one then headed by Thomas Jefferson, sent requests to Congress to start gathering data on how various occupations affected life expectancy and similar long-range purposes by breaking down the census into more detailed categories. Two of the requested breakdowns are illustrative: “the respective numbers of native citizens, citizens of foreign birth, and aliens” reconfirms that residents who were foreign nationals ("aliens") were represented; and an age breakdown starting with children under 2 and going up by five-year increments to 100 reconfirms that children were counted.
Source: Wright, Carroll D. and Hunt, William O. The History and Growth of the United States Census, Senate Document #194, February 24, 1900. U.S. Census Bureau. This and the 1790 census are both available at the U.S. Census Bureau at www.census.gov.
All legal inhabitants are represented in Congress and state legislatures, and enumeration is by population. This can’t ‘dilute’ voters’ representation because it was built into our system from the beginning. Neither the original Framers nor those of Amendment XIV found apportionment by population to violate citizens’ equal privileges or a republican form of government. Nor did Amendment XIV’s Framers, who were addressing all of these, find that it affected equal protection under the laws. Only Amendment could remove inhabitants’ representation. Neither Congress nor the states, the President nor the Supreme Court has power to do so.
Whenever a question arises regarding priority of rights, caution should be extreme. The Court need never decide, as the people have Article V. But expressed concerns of clauses generally take precedence over other concerns. Because the Constitution defines apportionment as a representation, not a voting, provision, its numerous clauses protecting representation rights take priority over voting rights even in intrastate districting
without proof of a need for an exception.
Amendment XIV, Section 2’s Right to Vote clause doesn’t give any voters’ right or privilege priority over the representation rights of the public as a whole, as Evenwel asserts, only parity (see the Elections section for voters' rights and privileges, and In Reality, Neither Final Nor Infallible). Its Equal Protection clause (Section 1) is directly concerned with the rights of individual persons and is probably used in error to oppose a right of individuals only identified as the people in the aggregate. Representation is an individual right, as is access.
Because the Guarantee clause prohibits claiming dilution of a vote’s weight on the basis of representative voting itself, a vote-dilution claim requires some indication of a need for an exception, such as an invidious intent regarding populations less vague than “all voters, depending only on their districts’ ratio of voters to constituents” to overcome parity. For example, Hawaii was only granted an exception to discount in districting its large percentage of temporary military personnel because they can be counted and vote by absentee ballot in their home states, and also live under the military's law, policies and justice system, under the Pentagon. In fact, since states shouldn’t be enumerating themselves, this exception should be for Congress to make. State legislatures and Congress represent the same people. No exception may be made to that. And no legal inhabitant of any state may be discounted from state or intrastate districting altogether.
"One Vote, One Person" Is Not the Same As "One Person, One Vote"
Update: On April 4, 2016 the Court unanimously ruled against Evenwel, wisely sending it back.
Do you know who is and who isn’t represented in Congress and state legislatures? After more than 200 years one state is claiming they don’t have a clue, and that the Constitution is vague on one of its most important definitions, in Evenwel v Abbott, case number 14-490, argued before the Supreme Court December 8, 2015. The issue is whether states' legislative districts can become voting districts instead, not a voting-rights question but a legislature's attempt to invalidly create a new power to choose their own constituents. The proposed solution is unconstitutional, but first let’s untwist the logic.
Evenwel involves attempted gerrymandering at the state legislative level by changing the method of enumeration to include only eligible voters. Because Article I, Section 2 is clear that only the census may be used to enumerate at the federal level, it's not possible to gerrymander those districts by enumeration. This footnote argues that the census was meant to enumerate for both state and federal representation, because they must represent the same people.
The purpose of gerrymandering is often mistakenly shrunk to party advantage in elections. There are other distortions of legislative priorities and other unfair advantages, however. Shutting all residents out of districting but eligible voters, for example, would also allow state resources to be allocated differently.
Evenwel claims voters in some districts are disadvantaged when districts have different numbers of voters, so districts must count only voters, removing nonvoters from “voting districts” (legislative districts). It supports this claim with two assertions: that “one person, one vote” means each person has the right to literally equal one vote, and that this means a vote must weigh the same in each district (and, of course, that our current system doesn’t ensure these). Neither of the two assertions would support the conclusion even if they were true.
First, Evenwel asserts that “one person, one vote” means each person has the right to literally equal one vote, and that voters are disadvantaged if this isn’t followed. Taken literally, “one person, one vote” doesn’t describe a republican form of government but a pure democracy, and so is false in the United States. “One person equals one vote” literally means any person counted as living in a district (“one person”) has the right to vote in that district (“equals one vote”). Being a person counted in the census gives you the vote. This would give the vote to noncitizens, children, those unable to vote due to disability, etc. The Constitution doesn’t guarantee suffrage to all people.
The Constitution guarantees a republican form of government: a representative, not a pure, democracy (Article IV, Section 4). To vote is to govern: representative voting is one level of representative government (see Voting as a Right). Children, for example, will never have the vote. Voters must consider the best interests of the community, not just their own. In this way every nonvoter votes (through the voters), effectively if not literally satisfying “one person, one vote”. This works well for voters because people's ideas of the community's best interest seldom disadvantage themselves. If voters’ best interests don’t correspond to nonvoters’ best interests, it’s not the voters who are disadvantaged. Voters would have no claim here even had the assertion been true.
Does our system ensure equal weight of votes across districts? In a republican form of government not everyone literally votes but everyone effectively votes through the voters, so a vote weighs the same in every district as long as all districts have the same number of people. And every state districts by dividing states evenly by population, the Constitution's method (some make minor adjustments to this). Our current system ensures equal weight of votes across districts in a republican form of government, so no change would be needed even if the second assertion were true.
"One Person, One Vote" means two things:
First, every person who is represented in a legislature ("one person")
has the right to either vote themselves
or have their needs considered by those who do vote ("equals one vote").
Second, all districts must have the same number of people
("equal # of people per district")
so that the ratio of people per representative ("% of a legislative vote per person")
is the same everywhere ("equal % of a legislative vote per person in all districts").
This is called the weight of votes.
"One person, one vote" isn’t actually what Evenwel bases its claim on.
Districting by counting only voters relies on a basic error in logic, the converse claim:
“if one person equals one vote, then one vote must equal one person”.
Only letting a person eligible to vote(“one vote”)
be counted as a person living in the district (“equals one person”)
is "one vote equals one person”.
“One vote, one person” not only isn’t “one person, one vote”
it’s the converse – and in this case, it assures the opposite.
Can an unequal weight of votes across districts disadvantage voters in some districts? It might, but Evenwel doesn’t prove it. "One person, one vote" does, however, prove districts must have equal populations if so. But Evenwel proposes counting only voters when districting, allowing districts’ total populations to vary. If an equal weight of votes across districts does matter (assuming our system didn’t ensure it), Evenwel’s proposed solution couldn’t help because it wouldn’t keep the weight of a vote from varying across districts.
In fact, about the only way to prevent an equal weight of votes across districts would be to uphold Evenwel’s claim! If districts have unequal populations, representative voting can no longer keep the weight of a vote the same across districts. Upholding Evenwel's claim would have the very effect it purports to correct.
Parts 1 and 2 below show the Constitution’s absence of concern with ratios of voters to constituents, which the original Framers knew already varied among and within states, and Amendment XIV's Framers knew still varied.
Nor are legislative districts primarily about voting. The Constitution requires evenly dividing legislators' labor and the people's representation by counting the population and dividing. This creates legislative districts. Division by population also assures people in every district equal access to the legislator representing them, a personhood right. Using the census and districting for these Constitutional purposes makes sense, and is required for the House of Representatives. Even had Evenwel had a claim, since it doesn’t provide a method of addressing these purposes after removing all nonvoters from districting, its proposed solution wouldn’t be viable.
The right to representation in United States legislatures does include the state level and the Constitution assigns the census power for the United States to Congress, not the states. The Court should dismiss Evenwel and correct this error.
The Constitutional question can be broken down
into two questions.
Can different people be represented in Congress and in state legislatures?
The purpose of apportionment is to divide the task of representation equally among legislators while ensuring all constituents equal representation. Each legislator represents one district’s enumerated constituents and no one else.
Article I, Section 2 determines all of the United States’ represented populations using Congress’ enumeration by census. Neither Article I nor Article VI establishes separate populations for different levels of government. Since Congress is never granted power to represent anyone not represented at the state level or allowed to fail to represent anyone represented at the state level, it's impossible to enumerate for just the federal level, or just the state level.
Article I, Section 2:
“[House] Representatives and direct Taxes shall be apportioned
among the several States which may be included within this Union,
according to their respective Numbers, […].”
Article I, Section 2 enumeration by census is a power independent of apportionment.One way the Article expresses this is by also requiring its use to assess states’ direct taxes.
Another way is that while the count is applied directly to the apportionment of House representation, no one who is not represented in the House may be represented in the Senate, and no one who is represented in the House may go without Senate representation. We accept this as implied. Article I, Section 2 doesn’t express that either the people represented or the method of determining who is represented is the same for the Senate.
The Senate and House use the same population figures when debating or voting on any bill. Every population-based grant from the United States treasury to each state must use the United States census. Differing official figures for the same state by its own granting and recipient legislatures could render a grant unenforceable.
The Constitution doesn’t authorize Congress to use other counts for any purpose, and implies that Congress must use Section 2 enumeration for all United States governance needs by requiring its use for the only other stated purpose that required a count of state populations: direct taxes, assessed per (represented) capita for each state and paid to the United States treasury.
In free states, the census was used for both their House count and direct taxes. Because state legislatures had to pay the direct tax and collect it from the public, their internal tax count couldn’t differ from the Section 2 census. And the public represented in their state legislatures couldn’t differ from the public for whom the state paid the per capita tax. This need not be expressed.
Even the existence of the infamous 3/5 compromise formula for slave states implies that the Section 2 census must also be used for state legislatures. Had it been acceptable to let states count themselves for any purpose, designing the Constitution would have been much easier.
The Constitution delegates the enumeration power to Congress. Although members need not canvas from door to door themselves, it remains governed by Congress alone: it’s done “in such Manner as They shall by law direct” (Article I, Section 2). Compare the Electoral clause (Article I, Section 4) that establishes state powers under Congress’ power. Congress may not redelegate this power to those who conduct state or federal districting. Nowhere do the people grant Congress the power to redelegate its Constitutional powers.
"This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; [...]
shall be the supreme Law of the Land;
and the Judges of every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned,
and the Members of the several State Legislatures,
and all executive and judicial Officers,
both of the United States and of the several States,
shall be bound by Oath or Affirmation, to support this Constitution; […]"
The state governments as a group are a level of United States government. Each state government is also one unit of the government of the United States of America. Every state’s legislature, executive and judiciary are also officers of United States government, bound to the Constitution, federal laws and treaties. State Governors even have the United States task of issuing writs of election to fill House vacancies.
Article I, Section 2:
“When Vacancies happen in the Representation from any State,
the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”
Since the states already had laws and constitutions when the Constitution was passed, Article VI asserts the Constitution’s supremacy "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding". After ratification, state judges (and all state officers) would treat as repealed anything already existing that contradicted the Constitution, now the supreme law of their state. Treaties and federal law became the supreme law under it, above state law and constitutions (see The Rule of Law). There is no “federal citizen” subject only to federal law (military law and treaties prevent it at sea and in space). Article I apportionment is done by dividing total population, not voters. State apportionment isn’t expressed but its purpose is the same: equal representation and equal division of legislators’ labor. And the Guarantee clause guarantees a republican form of government even at the state level, making voting representative. Equal numbers of legal inhabitants (see part two) keeps the weight of votes equal among districts.
Article IV, Section 4:
"The United States shall guarantee to every State in this Union
a Republican Form of Government,"
"The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States,
are reserved to the States respectively, or to the people."
Amendment X reinforces this by incorporating all state constitutions, and any state law addressing state government powers, into the Constitution as the several states’ unconjoined powers, delegated by each state’s constitution (all nondelegated powers remain with the people). These must comply with the Constitution, federal law and treaties.
United States representation includes representation at the state level because the people delegate some powers to the national level and some to the state level (Article I, Sections 8, 9 and 10; referred to in Amendment X). It wouldn’t be feasible for a person to have representation at one level but not the other, because topics in law are divided between them.
"We the People of the United States, in Order to form a more perfect Union, […]
do ordain and establish this Constitution for the United States of America."
"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the same
Done in Convention by the Unanimous Consent of the States present […]
In witness whereof We have hereunto subscribed our Names."
Taking the Preamble and Article VII together confirms it: we the people of the United States are identical to the group of states referred to in “between the States”. The several states, who can make an agreement between them as entities and whose chosen delegates can sign for them as individual entities, as a group are identical to the people of the United States of America. [States never had independent governments. Congress, with the Declaration of Independence, made states legal entities in 1776 as at least permanently united below itself. The united States were free and independent of England, not of each other or Congress. By the time we won the civil war with England the Articles of Confederation had defined our level of interdependence as national: that document, Congress, and even a weak Presidency governed the United States of America. But the government we created in 1787 is our only government.]
The census in Article I, section 2 counts the population represented in each state. The state figure this arrives at is both the population represented in the state’s legislature and that state’s population represented in Congress. When added together (plus the District of Columbia), these state populations make the total figure of the represented United States population.
Since one reason we ordain and establish the Constitution is to form a more perfect Union, to lessen unity of governance now would defeat one of the Constitution’s asserted functions.
Note: This case illustrates the problem of caselaw drift
The Court must consider the Constitution's text primary above caselaw.
In this case the Court in Baker v Carr in effect decided that the Guarantee Clause’s use could be limited in voting cases but the maxim “one person, one vote”,
that appears nowhere in the Constitution and whose vagueness can be exploited
to contradict all of the above clauses, is a “rule” binding future Courts.
The Court may not make procedural rules binding future benches of the Court. They have identical, not diminishing, authority under the Posterity clause, which guarantees the public a fully-authorized Court in every generation.
But the more decisions have been affected by drift
the harder it becomes for a Court to say they’ve drifted from the Constitution
to the point of absurdity, and overturn the lot.
When the Court rejects a Constitutional clause in favor of a maxim,
drift has already gone too far.
See Reynolds v Sims, 377 US 533 (1964), Burns v Richardson, 384 US 77 (1966), Chen v City of Houston, 532 US 1046 (2001), at www.supremecourt.gov/opinions/opinions.aspx, and Garza v County of Los Angeles, 918 F Supp 2d 763 (9th Cir, 1990).
Caselaw drift has to be addressed.