OPINION

Opinion: In Texas lawsuit, a 3/5ths person is now zero

WASHINGTON, DC - JANUARY 09:  An exterior view of the U.S. Supreme Court January 9, 2015 in Washington, DC. The justices of the Supreme Court were scheduled to meet to determine whether the court will take up any of the five pending state-banned same-sex marriage cases in Ohio, Tennessee, Michigan, Kentucky and Louisiana.> on January 9, 2015 in Washington, DC.  (Photo by Alex Wong/Getty Images)

WASHINGTON, DC - JANUARY 09: An exterior view of the U.S. Supreme Court January 9, 2015 in Washington, DC. The justices of the Supreme Court were scheduled to meet to determine whether the court will take up any of the five pending state-banned same-sex marriage cases in Ohio, Tennessee, Michigan, Kentucky and Louisiana.> on January 9, 2015 in Washington, DC. (Photo by Alex Wong/Getty Images)  (2015 Getty Images)

The question before the United States Supreme Court is:

As the Constitution assigns the number of representatives to Congress by population determined by the U.S. Census every 10 years, just what people should be used to determine the number of constituents – living breathing people or United States citizens only?

The Senate is allocated differently, of course. Each state has two Senators regardless of population. As to the total number of representatives (currently 435), Congress simply determines that by statute and presidential signature.

A suit (Evenwel v. Abbott, 14-940) has been brought by the “Project for Fair Representation” in Texas – that declares non-U.S. citizens should not be counted, that only U.S. citizen vote-eligible people should be used to formulate congressional districts.

The suit claims that the question has never been resolved by the Court and the result is that one congressional district in Texas has less than 300,000 constituents while an urban district has over 500,000, thus, according to the Project for Fair Representation, the urban district’s voters carry more weight than the rural district.

Is that right?

Isn’t the reverse actually true? A district with fewer people has more power in Congress than a district with more voters, isn’t that simple math?

More importantly, it seems that the answer is in the Constitution itself.  In the 14th Amendment to the Constitution in Section 2 we find:

“Representatives shall be apportioned among several states according to their respective numbers, counting the whole number of PERSONS (added emphasis) in each state, excluding Indians non-taxed.”

All other amendments clearly state that the word “person(s)” rather than citizens is used five times in the Second, Fourth, Fifth and Fourteenth amendments including the critical one in the Fourteenth that uses the words “counting the whole number of persons” in allocating Representatives.

So what is the argument? The real reason for the lawsuit is that some districts have large numbers of immigrants, legal and illegal, and the plaintiffs simply want only U.S. citizens used to allocate representatives despite the fact that that has never been the case. This is an attack on immigrants, it has nothing to do with “one man, one vote.”

In Texas, then, the target is Mexican immigrants, legal and illegal. That should be pointed out to all.

The Congressional representation has always counted “persons” even in the original Constitution which declared that slaves should be counted as “3/5ths.” While that was despicable at the time slaves, nonetheless, were counted albeit as 3/5ths of a person for Congressional representation. That was changed by the 14th Amendment as noted above.

The Second Amendment, written by the Founding Fathers, clearly allows non-citizens to “bear arms.” The Fourth, Fifth Ninth Amendments to the Constitution were also written by the Founding Fathers and they are clear as in the Second, “persons” not citizens are the rights holders.

Using the extended logic of the Texas plaintiffs, exactly who should be counted to allocate Congressional representation? U.S. citizens only, registered voters only or registered voters who actually vote?

If the Court decides the current system specified in the original Constitution should not be used, then what system does it want to be used?

The Congress should step up and pass legislation clearly outlining how Congressional representation should be allocated and it should be based on the original Constitution as noted here in the body of the Constitution and its Amendments.

All persons should be counted in allocating Congressional representation, all persons, just as all persons are legally able to own guns, be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” nor be charged with a “capital or otherwise infamous crime” without a Grand Jury indictment, nor tried “twice” for the same crime or forced to testify against himself.

None of these rights are reserved for citizens only, they are for all “persons.” The Court must decide in favor of the Constitution not in favor of a tiny minority of constitutional hecklers who do not understand the document or its spirit.

Raoul Lowery Contreras is a political consultant. He was formerly with the New American News Service of the New York Times Syndicate. Contreras's books are available at Amazon.com

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