The Federalist Blog

This is an interesting recurring question I get every once in a while and, unfortunately, been too occupied to answer. There has been talk to change “persons” under section 2 of the 14th amendment to read “citizens.” Michigan Republican Rep. Candice Miller introduced a constitutional amendment last year that would change the 14th amendment to allow only “citizens” to be counted instead of “persons.” The section in question reads as follows:

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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Strictly speaking, there is nothing terribly wrong with this section of the fourteenth amendment as it stands because the States lost nothing outright due to its adoption. It is important to note that no State can be held liable for disenfranchising anyone who is not a citizen of the United States. The insertion of the word “persons” obviously confuses the entire section leading to the assumption aliens who have not renounced all prior allegiances to their country of origin or sworn fidelity to this one under the laws of naturalization are required to be counted.

Here is a little history of this section that hopefully will make it less confusing.

In January of 1866, the Committee on Reconstruction put foreword a special order (H. Res. 51) to amend the US Constitution with the following instructions by William Lawrence:

“Apportion representation among the States on the basis of adult male voters who may be citizens of the United States.”

When the proposed Amendment reached the US Senate on March 9, it had had been drafted to read in part: “Representatives shall be apportioned among the several States within the Union according to the number of male citizens in each of twenty-one years of age and upward…”

In the House, Rep. John A. Bingham had objections to the use of the word “citizens” because he felt those aliens who resided in the States, who had renounced their allegiance to their country of origin and had sworn fidelity and allegiance to this one, ought to be counted for purposes of representation. Over in the Senate it was indeed foreseen by some that by changing “citizens” to “persons” could lead to non-qualified aliens to be enumerated for purpose of representation. Sen. Johnson resolved the conflict by pointing out that the alien population will simply be deducted:

[There] is a large number of them [aliens], and they will be deducted from the enumeration which is to ascertain the proportion of representation; unless it be in the power of the State to make them citizens.

[…]

And I know no mode by which an alien can become a citizen of the United States except under the naturalization laws of the United States. If he cannot be made a citizen in any other way than under those laws, the operation of the amendment would be to exclude from the enumeration all who may not be citizens.

Sen. Trumbull (Chairman of the Judiciary) was pretty much in agreement with Sen. Johnson’s argument put forward above, and so the rest of the Senate fell in line. So to sum this up, “persons” was used for purposes of including aliens who had declared their intent to become citizens of the United States and who were awaiting for the required length of residency required to become bona-fide citizens themselves.

It indeed defies logic why millions of non-citizens who violated federal laws to reside in the country illegally could be counted for purposes of State apportionment of representatives. At the same time, it also defies logic how anyone will ever be able to determine exactly how many illegals should be deducted from the census count because most everyone would agree the actual numbers of illegals residing in the country is vastly underestimated (use of fraudulent ID makes obtaining a accurate count more problematic).

There is no denying the practice of enumerating aliens for purposes apportionment runs counter against the entire principle of a nation founded strictly for ourselves and descendants, which of course was exactly the objective of this section of the amendment: To count the whole number of “ourselves” and those who had taken the legal steps to become citizens by renouncing all prior allegiances as required by law at the time upon application.