Supreme Court Harkens Back to Three-Fifths Slavery Formula

The Supreme Court decision in Evenwel v. Abbott, harkens back to how our original Constitution enshrined slavery in power until the Civil War.

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The Evenwel decision holds that states may apportion districts — and presumably Congress can apportion Congressional representation — based on total population rather than based on those eligible to vote. So immigrants here illegally, who cannot vote, are counted equally with voters in allocating legislative representation.

There is a terrible analogy between the Evenwel decision and the infamous three-fifths rule that was adopted to determine slave representation in the House of Representatives.

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At the original Constitutional Convention, the Northern and Southern states wrangled over how to count slaves — who could not vote — in allocating congressional districts to the states. The South wanted its voting power enhanced so slave states could come closer to a majority in the House of Representatives and have more electoral votes in choosing a president (electoral votes are allocated by adding the number of senators and congressmen from each state).

The Northern states relented and agreed to count each slave as three-fifths of a person in apportioning legislative seats. The South and the slave interest benefited enormously from the compromise.

So, as a result of the Supreme Court’s decision in Evenwel, immigrants in this country illegally are to be the modern equivalent of slaves in proportioning representation in Congress. Like slaves, these people cannot vote. But they are counted in determining how many seats in Congress each state gets. These phantom voters have no more right to influence the composition of our Congress than the slaves did — unless and until they can vote.

As Gary Wills explains in his 2003 book “Negro President: Jefferson and the Slave Power,” the distortions caused by the three-fifths rule permitted the slave power to remain in ascendency. The Southern slave states had 47 House members in 1793 — under the three-fifths rule — while they should have had only 33. By 1812, they had 76 but should have been entitled to only 59. By 1833, they had 98 as opposed to the 73 they should have had.

Wills calls Jefferson the “Negro President” because it was the extra electoral votes that came from the three-fifths rule that let Jefferson eek past President John Adams in the electoral college in the election of 1800. In that contest, Jefferson won with 73 electoral votes to Adams’ 65. But had the Electoral College votes only reflected vote eligible citizens, and excluded the three-fifths rule, Adams would have won.

This odious comparison illustrates the injustice of using illegal immigrants to apportion power but not giving them a voice in how it is used. Either make them citizens and count their votes or leave them out of apportionment.

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