IMMIGRATION AND THE LEGACY OF SLAVERY

One of the constant questions about the political debate over immigration is why there isn't more demogoguery, not that there isn't enough to be getting on with. One reason is an odd effect that immigration has on the makeup of Congress; an effect that can be traced to the sometimes desperate attempts at the Constitutional Convention to deal with slavery.

Even as early as the Convention, there was a not insubstantial feeling in the North that it would be wrong to enter into a national government with the South if slavery was to be accommodated. On the other hand, the South would not agree to a national government that didn't make some accommodation with slavery. Relieving this tension led to many of the peculiar aspects of our government, including the way the House of Representatives is apportioned.

It was obvious to the delegates that slaves were not citizens, and that only citizens (male, propertied citizens at that) would be voting for members of Congress. The Northern states, which were also the most populous states, wanted to apportion Congressional districts according to the population of free men. The Southern states, afraid of being swamped and afraid of losing slavery politically, wished Congressional districts to be allotted among the states by total population: counting slave and free. The result was the famous, or infamous, 3/5's 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.

US Constitution, Article I, Section 2. Note that "free persons" is different from citizens and from voters.

After the Civil War, there are no more slaves in the United States. The method of apportioning Representatives, however, is still done according to the population of "free Persons" or, as the Fourteenth Amendment puts it: "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 other words, non-citizens, whether in the country legally or illegally, count. If a state has enough immigrants, or enough illegal immigrants, it will also have extra Representatives and carry more weight in the House. In the 2000 census, the government counted a total population of 280,849,847, including 18,513,752 non-citizen residents. What effect do these non-citizens have on the House? (If any, as non-citizens will have no effect on the number of Representatives to the extent they are spread out across the nation proportionately to the citizen population.)

My relatively quick calculations (which might not be precise, but are certainly approximate) suggest that if we ignored non-citizens in apportioning House districts, the effects would be pretty dramatic. California would lose six House seats, and New York, Texas and Florida would each lose one. Indiana, Kentucky, Michigan, Mississippi, Ohio, Oklahoma, Pennsylvania, South Carolina and Wisconsin would all gain a seat. If we counted legal residents, but ignored illegal aliens (using numbers from the INS, which tried to determine how many illegals ended up being counted in the 2000 census), California would lose three seats, North Carolina and Texas would each lose one seat and Indiana, Michigan, Mississippi, Utah and Wisconsin would each gain a seat.

Because gerrymandering would mute the results, it is hard to say how many how seats would change parties if we didn't count non-citizens or illegal aliens in apportioning House districts. If we assume, though, that the party that captured a state in the 2004 Presidential election would lose the seats lost in the state, and win the states that are gained, the result would be one more House seat for the Republicans if we only ignored illegal aliens, and four more House seats if we didn't count all non-citizens. Although the Republicans would likely gain seats, their strongholds in the West and South, over all, would lose influence, and the North and East would gain influence. Although House membership is a zero-sum game, it is easy to see how each party, notoriously risk-averse, could conclude that it is better off with relatively open borders and lax immigration enforcement. It is particularly interesting to note that the building of a fence in southern California has supposedly shifted illegal immigrants to Arizona and Texas. If so, those states might gain influence in the House at California's expense.

MORE: Polimom makes a nice point that should have occurred to me. Including non-citizens in apportioning Congressional districts leads to voter dilution, or actually voter concentration. A voter in a district with lots of non-citizens will have a disproportionately more valuable vote than voters in districts made up wholly of citizens. (At the extreme, imagine one citizen surrounded by 645,000 non-citizens. She gets her own member of Congress.) Another nail in the coffin of the Supreme Court's nonsensical "one man, one vote" jurisprudence.

This post was modified on April 7, 2006, by inserting the relevant language from the 14th Amendment.

Posted by David Cohen at April 6, 2006 7:02 PM