In Department of Commerce v. New York, the Supreme Court held that the Trump Administration had not provided an adequate justification for including a citizenship question on the census. Leading up to that decision and in the weeks after it, legal commentators including Josh Blackman, Josh Hammer, and David Rivkin and Gilson Gray, as well as 19 Republican members of Congress, have rediscovered what has been called the most “comprehensively unenforced”^[1] provision of the Constitution: Section 2 of the Fourteenth Amendment.

These commentators have argued that Section 2 not only permits a citizenship question, but actually requires one. Are they right? And if so, why has the Trump Administration never utilized it as a justification for gathering citizenship data, either during the litigation or in President Trump’s post-decision executive order?

In this post, I will explain why Section 2 (known as the “Penalty Clause”) does indeed require collecting citizenship data (at least for males 21 and over). In a second post tomorrow, I will explain why enforcing this provision for the first time in the nation’s history would raise several novel and thorny legal questions that the Trump Administration, in all likelihood, would prefer to avoid.

What is the Penalty Clause?

The Constitution requires that a census be taken every ten years to determine how many congressional representatives are assigned to each state. U.S. Const., Art. I, §2, cl. 3. The apportionment of representatives has always been based on the total number of “persons” in each state, but that general rule has some exceptions. “Indians not taxed” do not count at all for purposes of apportionment. Id. And more infamously, when the Constitution was originally enacted, those who were not “free persons” (i.e. slaves) counted as only “three fifths” of a whole person. Id.

After the Civil War, northern politicians confronted an ironic consequence of abolition: former slaves living in the south were now free, and therefore would now count as whole persons when apportioning representatives to their states. Nothing, however, prevented those states from continuing to disenfranchise the freedmen. As Senator John Henderson lamented, this would have had “the effect of increasing the political power of the seceded States.”

The most straightforward solution to this problem would have been a Constitutional amendment simply forbidding disenfranchisement on the basis of race. This would eventually be enacted as the Fifteenth Amendment. But when the Fourteenth Amendment was being drafted, it was far from clear that such a sweeping prohibition on electoral discrimination could ever be ratified by three quarters of the states. The drafting committee for the Fourteenth Amendment thus rejected two proposed clauses that would have given Congress the power to forbid racial discrimination in state voting laws. The Journal of the Joint Committee of Fifteen on Reconstruction, 39th Congress, 1865–1867, 54–55 (Benj. B. Kendrick ed., 1914). Instead, the drafters devised a more convoluted solution, which would become Section 2 of the Fourteenth Amendment (more commonly known as the Penalty Clause):

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.

The language of this clause is confusing, but its intended effect can be demonstrated with a simplified example. Suppose a southern state had a total population that would have entitled it to 12 representatives. If that state continued to disenfranchise its black male citizens, and those citizens comprised a third of the state’s adult male citizen population, then the state would be penalized with the loss of a third of its representatives, resulting in a final total of only eight representatives. As Justice Thurgood Marshall explained (using the terminology of his time), the Penalty Clause thus “put Southern States to a choice—enfranchise Negro voters or lose congressional representation.” Richardson v. Ramirez, 418 U.S. 24, 73–74 (1974) (Marshall, J., dissenting).

Does the Penalty Clause Require Collecting Citizenship Data?

The Penalty Clause does not include guidance on how it is to be enforced, nor does it explicitly command that the census make a separate count of citizens. But to implement the clause, the government must know two numbers for every state: the total number of male 21-year-old citizens, and the total number of male 21-year-old citizens whose right to vote has been denied or abridged for reasons other than crime or rebellion. Thus, the government’s duty to apportion representatives accurately carries an implicit requirement that these two numbers somehow be ascertained.

An implicit constitutional requirement for the collection of particular population data is not just a theoretical possibility. It was in fact the reality for the first eight censuses. The original census clause of Article I did not explicitly require ascertaining how many persons in each state were slaves. Yet its rule of apportionment, which gave slaves only three fifths the weight of free persons for purposes of apportionment, could only have been faithfully implemented if the government took note whether every person counted was slave or free. And the census did indeed make separate counts of slave and free persons. The congressional debates over the Fourteenth Amendment make numerous references to these separate totals from the 1860 census.^[2] And “Indians not taxed” theoretically remain in a separate category that the government would have to account for to this day to accurately apportion representatives. Under current law, however, no one falls into this category. See An Act to Authorize the Secretary of the Interior to Issue Certificates of Citizenship to Indians, 43 Stat. 253 (2 June 1924).

Further, it was the contemporaneous understanding when the Fourteenth Amendment was enacted that it would indeed require ascertaining additional data. After the Fourteenth Amendment was ratified, the Secretary of the Interior duly added two questions to the 1870 census: “The first was intended to obtain the number of male citizens of the United States, in each State, of twenty-one years and upward; the second, to obtain the number of such citizens whose right to vote is denied or abridged on other grounds than rebellion or other crime.” Report of the Superintendent of the Ninth Census, 1 Ninth Census of the United States XXVIII (1870).

After the 1870 census was completed, the House passed a resolution that “the Secretary of the Interior be . . . directed to furnish to the House of Representatives the following information; namely . . . the number of male inhabitants of each state, twenty-one years of age and over; [and] the number of male inhabitants in each state, being twenty-one years of age, and citizens of the United States, whose right to vote in such state in any election . . . is denied, or in any way abridged, except for participation in rebellion or other crime.” A House subcommittee (chaired by future president James Garfield) was also created with the purpose of investigating state disenfranchisement to help carry out the Penalty Clause. Garfield’s committee found eleven categories of disenfranchisement (other than for crime or rebellion) in the various states. Garfield explained that it was necessary to determine how many people were disqualified under these various laws in each state “before we proceed to fix the relative numbers of Representatives of the States.” The next year, Congress codified the Penalty Clause in the statute regulating the details of congressional apportionment.

Further, the fact that the Interior Secretary added the questions to collect this data before Congress legislated to enforce the Penalty Clause weakens Garrett Epps’s argument that enforcement of the Penalty Clause may only be carried out through an act of Congress, not executive order. Representative Garfield defended the Secretary’s actions, noting that in tabling a pre-1870 enactment statute without a vote, the Senator in charge of that bill had “expressed the opinion that no legislation was necessary, and that the Secretary of the Interior must consider the Amendments as a part of the law which should guide him in his work.”

All of these actions make clear that it was understood when the Fourteenth Amendment was ratified that it required the collection of both citizenship data and disenfranchisement data, and also strongly support the view that the Fourteenth Amendment itself authorizes the executive branch to collect that data. But in Part 2 of this post tomorrow, I will explain why actually enforcing Section 2 would raise daunting challenges that the administration would likely prefer to avoid.

Thomas Berry is an attorney in Arlington, Virginia. He has previously published a law review article on the history of Section 2 of the Fourteenth Amendment.

^[1] Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L.J. 259, 260 (2004).

^[2] See, e.g., Cong. Globe, 39th Cong., 1st Sess. 2769 (1866) (“The census always discriminates between the black and the white population, and it makes several other discriminations.”) (statement of Sen. Ward); see also C. Matthew Snipp, Racial Measurement in the American Census: Past Practices and Implications for the Future, 29 Ann. Rev. of Soc. 563, 565 (2003) (“In the first five censuses of this nation, marshals were responsible for recording the political and legal status of the population, whether free or enslaved, and if American Indian, whether a taxpayer or not.”).