Entangled with the red-hot polarizing issues of immigration, the distinctive rights of American citizens are under challenge — from entry into the country to qualifications for public benefits. The lines are drawn between those seeing clear and substantial differences between the rights of citizens and non-citizens and those seeing smaller differences.
For citizenship defenders, the battle has not been going well. The prohibition against even asking about citizenship on the census should be their last straw.
The centrality of citizenship to democracy should be reasserted in a fundamental way by ratifying what I propose as The Citizen Representation Amendment (CRA) to the U.S. Constitution. The CRA would change the apportionment of seats to the House of Representatives from being based on the number of persons in a state (citizens plus non-citizens) to the number of citizens alone (amending Article 1, Section 2 of the Constitution). By changing the apportionment standard, the CRA also changes the standard for drawing congressional district lines within states (to equal numbers of citizens) and the number of electoral votes a state receives (when the change alters the number of a state’s congressional districts).
Though no secret, I suspect most Americans would be appalled to learn that about 23 million non-citizens (about 7% of the total population) affect their representation in Congress and in presidential elections. They would also be understandably perplexed by it. Why would the Constitution apportion House seats to states based on the number of people (including non-citizens) rather than solely on the number of citizens? Why should the number of non-citizens (legal or not) have any bearing whatsoever on the number of representatives a state elects to Congress? Good questions.
One can scour The Federalist Papers for an explanation and come up empty. The Founders used “the people” and “citizens” interchangeably. Moreover, they didn’t have an especially inclusive vision of popular government, so it is difficult to imagine them intentionally embracing the idea of allowing non-Americans to affect the nation’s political process.
More plausibly, the reference to “people” rather than “citizens” is an unfortunate remnant of the infamous three-fifths compromise over slavery in the Constitution as originally ratified in 1787 (slaves would not be counted as partial citizens, but were counted as partial people in the formula) and to the fact national citizenship had not yet been established. The reference was unfortunately repeated (as “whole persons”) rather than rectified in the post-Civil War’s 14th Amendment undoing the three-fifths compromise and establishing national citizenship. The fix for this constitutional ambiguity or glitch is long overdue.
Beyond historical considerations, the CRA has two virtues commending it: advancing political equality and national self-determination.
At present, states with disproportionate numbers of non-citizens receive more representatives per citizen than states with fewer non-citizens. The Kaiser Foundation estimates non-citizens make up as much as 13% of the population in one state (California) and a mere 1% or 2% in 10 others. These inequalities are compounded within states in drawing congressional districts with varying numbers of citizens.
There are, of course, other sources of political inequality in our system, those associated with federalism (state representation in the Senate) and the drawing of district lines, but the apportionment inequality is unintended, unjustifiable and straightforwardly fixable.
Americans overwhelming believe they, and only they, should have control over their government. It is Woodrow Wilson’s principle of self-determination. Foreign nationals, either as individuals or as governments, have no right to intervene in American democracy. Most Americans were outraged over Russian interference in the 2016 elections. The fact a loophole of sorts in our Constitution does not involve the cloak-and-dagger intrigue of Russia’s “meddling” does not make it any less a violation of the democratic rights of American citizens. American democracy should be defended on all fronts against foreign influence.
Read more on the Russia probe:
Who wins? Who loses?
Historically, proposed amendments are rarely ratified. Since the Bill of Rights in 1791, only 17 have been adopted. Prospects in these polarized times would seem especially poor and, as with any change, there will be fierce resistance from those advantaged by the status quo. According to a New York Times analysis by Emily Badger, apportionment by citizens alone would likely reduce the overrepresentation of California by four seats and of Florida, New York, and Texas by one seat each. Seven underrepresented states each gain a seat (Colorado, Louisiana, Michigan, Missouri, Minnesota, Montana, and Pennsylvania). How all this works out in partisan terms depends on state redistricting and voting in future elections.
Though there are no good reasons to include non-citizens in apportionment, two arguments can be anticipated. The first dusts off the “no taxation without representation” slogan: many non-citizens pay taxes and, therefore, deserve representation. There are two fatal flaws to this argument: (1) based on the same logic, non-citizen taxpayers should have the right to vote (and no reasonable person goes that far) and (2) we long ago dissociated taxpaying from rights (many citizens do not pay taxes, poll taxes are unconstitutional). You don’t lose your citizenship by not paying taxes and paying taxes doesn’t make you a citizen.
A second argument is that non-citizen residents have a stake in how the nation is governed and, therefore, should have a role in its governance. The problem is that virtually everyone in the world has a stake in how a nation as powerful as the U.S. is governed. Does this give everyone a seat at the table? Of course not.
The question of who is represented and who has a stake in government programs are separable. Representatives allocated by the number of citizens and elected by those citizens may devise funding formulas for programs taking the full population of a state or community into account.
Despite inevitable opposition, the CRA should attract broad and enthusiastic support. The case for its ratification is clear, compelling, and widely accepted: American democracy should represent Americans and no one else. Whether through meddling in campaigns or affecting the apportionment of our representatives, foreign nationals should have no role in American democracy. The CRA is pro-citizen, pro-American, and pro-democracy.
Public support should translate into support from political leaders in both parties. Democrats and Republicans alike should be eager to tell constituents they stand for the political rights of citizens, in favor of political equality, and in opposition to all foreign interference in our democracy. If they do not, that would be important for voters to know.
James E. Campbell is a UB distinguished professor of political science at the University at Buffalo, SUNY, and is the author of “Polarized: Making Sense of a Divided America.” He first raised the idea of a constitutional amendment for apportionment by the number of citizens in his 1996 book, “Cheap Seats,” on the relationship between turnout and representation.