The past and future of America’s political community

Constitution Daily contributor Lyle Denniston looks at how the United States has considered and debated political representation since the Founding - a debate that remains very active today.

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.”

But those sentiments, in whatever particular form they show up anew, do 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 the 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.

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.

In the debate over who should be included in the political community, the reality, in all of America’s past and still true, is that not all citizens have had the right to vote; “universal suffrage” has simply never existed.  Children are citizens, but they cannot vote until they reach age 18. In most states, a person convicted of a crime and sent to prison loses the right to vote but is not made stateless through the loss of citizenship.

Beyond that, it is a fact of history 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 14th Amendment made the freed slaves citizens and declared that they were to be counted as whole persons. (Two years later, the 15th Amendment gave them the right to vote – 50 years before the Constitution did so for women.)

Still, three questions persist. 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? If there is going to be an attempt to exclude illegal aliens, how might it be done?

First, it could be done by constitutional amendment. But the chances of that amendment gaining approval in the House of Representatives, under Democratic control, seem non-existent.

However, 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, members of 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.  None was passed.

There have been attempts, though, to test that constitutional issue in court, but so far the challenges to the inclusion of total population have never succeeded; nevertheless, the tests are continuing.

And 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 Court, in a ruling that was unanimous in the outcome but in which the Justices were divided on reasoning, chose not to settle an 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 and it 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, for example, if the Trump Administration decides, after a study that is now underway, to exclude “illegal aliens” from representation.

Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.

Editor’s Note: An extended version of this article is available on the author’s blog at https://lyldenlawnews.com/2019/07/24/in-america-who-do-elected-politicians-represent/.