Slate, Nov 6, 2006
Headline: The Five-Fifths Clause
Byline: Andrew Marantz
Census block 2054 lies in
They did, as it turns out. There is a cluster of 1,400 women in this rural
county, but the cluster is actually one town to the west, in Albion
Correctional Facility. County-planning officials caught the mistake; the
population was transferred to the town of
Almost all of Albion's inmates are from elsewhere (mostly
Our legislators use census data to apportion electoral districts. In doing so, they are supposed to follow two basic legal principles. The first is "one person, one vote." For every vote to count equally, every district should contain the same number of people. The second principle urges legislators to protect "communities of interest" by drawing electoral lines around unified voting blocs. Our current census policy—counting inmates as residents of the town in which they are locked up—violates both of those principles.
In 1964, in Reynolds v. Sims, Chief Justice Earl Warren
established his "one person, one vote" principle, writing, "legislators are elected by voters, not farms or cities or
economic interests." But legislators are not elected by prisoners: In 48
As for unified "communities of interest," the interests of many
inmates are actually directly opposite to those of the rural folk on
the other side of the fence. Abraham Gilliam, a business owner in
The courts have traditionally overlooked the misrepresentation of inmates
because it didn't make much practical difference. We didn't have all that many
inmates, and until the 1970s, the ones we had usually served their time near
their homes. Last May, however, the 2nd U.S. Circuit Court for
Appeals questioned the long-standing practice of counting prisoners where they
sleep. As that court noted, the
Today, after the prison boom of the '80s and '90s, inmate misrepresentation
is no longer statistically negligible. Prisoners are still a minority,
obviously, but a growing one.
Generally, when a neighborhood's census count gets smaller, so does its representation in the city and state legislatures, as well as its chances for government aid. The current census policy has thus established a power gradient whereby prison towns win and inner-city neighborhoods lose.
During slavery, Southern states bolstered their census numbers—and thus their representation in Congress—using the three-fifths clause, which allowed them to count disenfranchised slaves as (parts of) people. The three-fifths clause violated the principle of "one person, one vote" because it inflated slaveholders' voting power. It also violated the principle of "communities of interest" because slaves rarely had the same interests as their masters. In fact, the three-fifths clause virtually ensured that slaves would be represented by pro-slavery Congressmen.
Today, rural counties all over the
Under the three-fifths clause, slave-owning districts were able to use their slaves for political gain. In order to stem this exploitation, and to make slavery a less enticing package, zero-fifths would have been better than three-fifths. Similarly, zero-fifths would be better in today's census. Either prisoners should be counted in their places of permanent residence, or they should not be counted at all.
Of course, no amount of reforming the three-fifths clause would have been good enough. The problem wasn't how to count slaves but how to get rid of slavery. Many argue today that tinkering with the census is not good enough—that we should instead find ways to reduce the number of people who are locked up and to enfranchise those who are.
[Professor’s Note: A study by the Pew Foundation published in February, 2008 contains the statistic that in America one of every 99.1 adults is presently incarcerated, which reflect the estimate that approximately 2.3 million American adults are behind bars on any given day. In 1987, the number incarcerated was about one-third as large. One in nine black men in the age group 20-34 is currently incarcerated. No other nation in the world imprisons people in such large numbers or at such a high rate. As Andrew Marantz points out in the article you just read our country which prides itself on being “the freest nation in the world” is also the nation with by far “the largest sector of unfree people.]