Tuesday, December 1, 2020

How Far Has the US Come Since the Three Fifths Compromise?

Guest blogger: Jennifer Fair, law student, University of San Francisco

While the presidency of Donald Trump has been riddled with controversy, it is important to take note of the many ways the 45th president has revealed the holes of the US government and the Constitution.  Once example of this is President Trump’s efforts to exclude “illegal aliens from the apportionment base,” as outlined in Trump’s July 21, 2020 memorandum https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/.

Trump’s ultimate goal is to exclude unauthorized immigrants from the Census count in order to alter the apportionment count.  This has the effect of decreasing the number of congressional seats for left leaning states, and of course increasing the number of congressional seats for conservatives.  The Supreme Court is set to hear oral arguments regarding these efforts on Monday November 30, 2020. 

Trump’s memo accurate points to a flaw in the Constitution that has existed for centuries, as there is not a specific definition of the persons who must be included in the apportionment base.  For decades, every person who resides in the country is counted in the census totals, which are utilized to allocate the 435 seats of the House of Representatives, and the legal status of the person has no bearing.    While left leaning new organizations postulate that Trump’s efforts to alter who counts for US Census purposes are fruitless, it is important to be reminded that the US has struggled with the definition of “persons” before.

One likely remembers learning about the three-fifths compromise.   This compromise stemmed from the debate between the Northern and Southern states, where Northern states (who opposed slavery) wanted only free persons to count, and Southern states wanted every slave to count in order to gain political power (by increasing the number seats they were earn by counting every slave).  This compromise occurred during the 1787 Constitutional Convention, where it was agreed that a slave did not equal a whole person.  Instead, only 3/5 of the slaves would count towards the population count.  This meant that 5 slaves actually equated to 3 people.  Another issue with the compromise was that it included an agreement that Congress would not outlaw slavery for 20 years.  The three-fifths compromise reflected that the US did not want to end its reliance on slave labor and somehow the “comprise” was declaring that a slave was not a whole person.  How far have we come?

“Slavery” may have ended in the formal since when the Thirteenth amendment was passed in 1865. However, the US still relies on finding the cheapest labor possible, which has resulted in contemporary forms of slavery.  This is reflected in current immigration laws which criminally penalize people who work in the US without documentation, yet rarely punish the employer for knowingly providing work to the same individuals.  This is the case even when the employer knowingly violates various federal labor laws.  Not only does the US rely on contemporary forms of slavery by using, but Congress continues to encompass modern day slaves - undocumented immigrants – as tools to use in their struggle for power.   The precise meaning of a “person,” in regards to the population count, has yet to be determined.  The US is still unwilling to outwardly declare undocumented immigrants – who the country relies on to keep its economy going and agricultural afloat – persons.   Moreover, Congress remains idle on granting individuals, who albeit are working in the country illegally, any form of security while they are in the country.  This reflects that the US has not really progressed much from the three-fifths compromise. 

While it is unlikely that the US Supreme Court will take Mr. Trumps request to exclude unauthorized immigrants in the 2020 Census count, Mr. Trumps concept is not far-fetched.  It is within reason that a conservative justice could indeed agree that undocumented immigrants are not registered voters and should therefore not count as a “person.”  As experienced in 1787, there is a significant amount of power at stake.  According to the Pew Research Center, conservatives would have much to gain in the House of Representatives if unauthorized immigrants were removed from the Census count: Alabama, Minnesota and Ohio would hold onto a seat they are set to lose; Arizona, Colorado, Montana, North Carolina and Oregon would gain a seat; Illinois, Michigan, New York, Pennsylvania, Rhode Island and West Virginia would each lose one seat; and California would lose at least one seat (https://www.pewresearch.org/fact-tank/2020/07/24/how-removing-unauthorized-immigrants-from-census-statistics-could-affect-house-reapportionment/).

There is no question that when it comes to making decisions between people and power, the Supreme Court tends to lean more towards power.  Therefore, the US’s reluctance to fit undocumented immigrants in the definition of “person” will continue, even though the US relies on these individuals to maintain its economy.  Until the US is honest about its reliance on these people, and the country is honest about the reality that the US takes advantage of the vulnerabilities of undocumented immigrants, we have not moved far from the 200 year old problems that emerged from the three-fifths compromise.  With that being said, we cannot deem this to be a mere “Trump” problem, as we are all play a role in this. 



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I agree with most of what you have written, but your speculation re: a conservative court requiring only registered voters to be counted in a census is far-fetched. Many citizens (and of course their children) are not registered to vote through lack of interest or for other reasons. No one would deny their right to be counted.

Posted by: Lauren Watson | Dec 2, 2020 6:50:22 PM

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