Equal Representation Act

Floor Speech

The last President tried to include a citizenship question on the decennial Census in 2020 and tried to count only U.S. citizens for the purpose of Census and reapportionment, and the effort failed miserably in court, for obvious reasons.

Section 2 of the 14th Amendment states that apportionment of seats in the House of Representatives is based on ``the whole number of persons in each State,'' persons being the all-encompassing category, much larger than that of citizens.

When the Framers wanted to impose a citizenship requirement in the text of the Constitution, they knew how to do it. Take the President of the United States, for example. It says that you have got to be a born U.S. citizen in order to run for President. Some of the historians tell us that was because Thomas Jefferson was trying to block Alexander Hamilton from running for President. He was foreign born. In any event, however, it was very clear that you needed to be a born U.S. citizen to run for President. For those of us in the House, it says we must have been a citizen for at least 7 years.

There are lots of citizenship requirements in the Constitution. There is no citizenship requirement for being counted in the Census and for purposes of reapportionment. On the contrary, the Census and reapportionment have included all persons, including noncitizens, like permanent resident green card holders, since 1790. That has been the unbroken practice since the beginning of the Republic.

This point was made even more clearly and emphatically by the Supreme Court in its unanimous 2016 decision in Evenwel v. Abbott, rejecting precisely the argument my distinguished friend is trying to make. Like this legislation itself, Evenwel involved a challenge to congressional apportionment based on a total count of the entire population instead of a limited count of the total citizen or voter population. Justice Ginsburg held for a unanimous court that section 3 of the 14th Amendment ``retained total population as the congressional apportionment base.'' She cited the speech made on the floor of the Senate by Senator Jacob Howard upon introduction of section 2 of the 14th Amendment:

``The basis of representation is numbers . . . . The committee adopted numbers as the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed, that the basis of representation should depend upon numbers; and such, I think, after all, is the safest and most secure principle upon which the government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.''

My colleague needs to remember that when the Republic was founded, the vast majority of people were not citizens who could vote. Women could not vote, children could not vote, enslaved Americans, obviously, could not vote. So the Census and apportionment was for everybody who was here. That was the whole basis of the three-fifths compromise. Because enslaved Americans were being counted, too, what percentage should they count for purposes of reapportionment? Well, Congress arrived at 60 percent, three-fifths. It was the Southern States who were saying they should count completely for these purposes because they wanted the enslaved Americans to be enlarging and inflating the congressional delegations from the slave states. For these purposes, the Northern States said: No, they shouldn't count at all; they should count zero percent in the apportionment. They arrived at three-fifths. In any event, everybody agreed that everybody would be counted.

Justice Ginsburg included lots of decisive legislative authority like this, including the floor statement here in the House of Representative James Blaine, who stated: ``No one will deny that population is the true basis of representation; for women, children, and other nonvoting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot.''

For all of you constitutional textualists out there, the plain reading of the text is clear as day.

For all of you constitutional originalists out there, the original purposes of the passage of the 14th Amendment have been carefully articulated by the Supreme Court on a unanimous basis and never rebutted.

For all of you Members who like to follow precedent, every apportionment since 1790 has included every single person residing in the United States, not just those lucky enough to have been given the right to vote. As the Evenwel Court noted, the 14th Amendment contemplates that ``Representatives serve all residents, not just those eligible or registered to vote.''

The constitutional meaning is indisputable, a point which settles this for those who actually want to follow the Constitution in all cases, not just when it favors our own preferred policy outcome.

The House should be getting real work done instead of wasting more time on another MAGA bill that will never pass the Senate, let alone get signed by the President, much less approved by the courts. The bill is an insult, and it is an affront to the great radical Republicans who wrote the 14th Amendment. Their party was a profreedom, pro-union, proimmigrant, anticonspiracy theory, anti-Know Nothing Party that wanted to make sure everybody in the country was counted and made visible.

The Census is essential to democracy. Just as the Framers endorsed Thomas Paine's ``Common Sense,'' they endorsed a common Census, but this bill would destroy the accuracy of the Census, which may have something to do with its actual legislative motivation.

In the 2010 Census, the undercount of Hispanic citizens was 1.4 percent. In 2020, that number grew to 5 percent, with many observers crediting that jump to the Trump administration's simple attempt to add a citizenship question to the Census and all of the intense publicity and rumor surrounding it.

The addition of a question about citizenship will indeed deter many immigrants, including people who are permanent residents, including citizens, from completing the Census. Many noncitizen immigrants who are seeking asylum or are refugees will avoid responding because of uncertainty over their status and fear of arbitrary law enforcement action.

Extensive research over the last decade shows that many residents wrongly believe the Census Bureau will share their responses with other agencies. To be clear on this point, it does not. Federal law prohibits it. However, that pervasive worry has prevented some people from answering questions about immigration status or responding to the Census at all.

Mr. Speaker, we strongly oppose this legislation as unconstitutional and unwise. It dishonors our own history and the values of the Nation.

The gentleman from North Carolina observes that we don't have anybody wearing a black robe in the House of Representatives today, but you don't have to wear a black robe in order to read the Constitution, interpret the Constitution, and follow it.

If you need people with black robes, then I would urge the gentleman to read the Supreme Court's decision in Evenwel v. Abbott, where the Supreme Court unanimously found that the Census and reapportionment must include the entire population, all persons; not all citizens, not all voters, the alternative suggestions that are being made today.

Mr. Speaker, what do we have here? Since 1790, all persons have been included in the Census, in every Census on a decennial basis since the beginning of the Republic.

The Supreme Court rejected the theory that is being advanced by my friends in the majority today in Evenwel v. Abbott that the Constitution requires citizens rather than persons, and the gentleman from North Carolina invites us to think it has something to do with immigration.

We actually had an immigration deal coming out of the Senate for hundreds of new Border Patrol officers and asylum officers and asylum judges and fentanyl detection machinery, and it was vetoed by the fourth branch of government, Donald Trump, who said he didn't want a border solution, he wanted a border crisis to run on.

Despite the fact that Senator Lankford, perhaps one of the most conservative Senators that we have in the Republican Party, said that this was a great deal and the best that he had ever seen coming out of the Senate, and despite the fact that Senator McConnell was for it, they blew it all up.

You judge for yourself the seriousness of the claims that they want to do something about immigration. This is another useless and needless distraction.

I yield 2 minutes to the distinguished gentlewoman from California (Ms. Barragan).
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Mr. RASKIN. Mr. Speaker, I am about to yield to my friend from New York (Ms. Meng), but I am inspired by the remarks of the gentleman from Wisconsin, especially about the word ``Republic'' which, of course, comes from res publica, the public thing.

He happened upon a subject that is of a lot of interest to me because I wrote a paper about it when I was in sixth grade.

The Pledge of Allegiance was written by a radical Baptist minister named Francis Bellamy--I am not sure if the gentleman is aware of that--on the 400th anniversary of Columbus' arrival in the new world.

Reverend Bellamy, who was an abolitionist in Vermont, was concerned about the continuing salute of the Confederate battle flag in the southern States.

He wanted to write a flag salute that would be unifying for the union, and he wrote: I pledge allegiance to my flag of the United States of America and to the Republic for which it stands, one Nation, with liberty and justice for all.

You notice what is not in there. He did not have ``under God.'' That was added in 1954 by Congress several weeks after the Supreme Court's decision in Brown v. Board of Education.

In any event, I am not quite sure what the relevance is of the gentleman's invocation of the Republic or of Ben Franklin and the famous vignette about him saying: If you can keep it.

Ben Franklin was, of course, a big supporter of immigration to the country, although he did display an anti-German bias in some of his writings.

I will tell you a little story about Ben Franklin that might be of relevance to what the gentleman is talking about because I just did a tour in Philadelphia with the Ben Franklin people up there, and we learned this wonderful story.

He made a loan to a friend of his for $100, and then he recorded in his diary that this gentleman he made the loan to for $100, Josiah, was always disappearing behind a tree or a building whenever Ben came along.

He finally caught up with him, and he said: Josiah, I loaned you a hundred bucks, and I am wondering, am I going to be able to get my principal back or at least the interest?

Josiah said: Well, Ben, look. The $100 is well invested somewhere else, so you don't have to worry about that.

Franklin said: Well, what about the interest?

Josiah said: Well, I forgot to tell you that it is against my religion to pay interest, so I can't pay you the interest.

Franklin said: You mean to tell me it is against your principle to pay me the interest, and it is against your interest to pay me the principal?

Josiah said: That's right.

Franklin said: Well, I can see I am not going to get either.

Well, here our principles and our interests converge very much. The principles are set forth in the Constitution, which is we count everybody, and everybody is part of the Census, and everybody is part of the reapportionment process.

It has been like that since 1790. We don't need to start finger painting on the Constitution with this silly election year proposal.

It is also in our interest because, as my colleagues have said, this is a land that is built on immigration. Except for the Native Americans who are already here and the people who were brought over as slaves, all of us are the descendants of immigrants to this country.

Tom Paine, when he got to America in 1774, 2 years before the Revolution, he said: This land, if it lives up to its principles, will become an asylum to humanity--not an insane asylum, mind you--an asylum to humanity, a place of refuge for people seeking freedom from religious, political, and economic oppression. That is who we are.

Every day I have in my office people from the hotel industry, people from the construction industry, and people from the restaurant industry saying: We have huge labor shortages. We need people in America.

I am for a whole lot more lawful immigration to America, less unlawful immigration to America like the deal that was worked out in the Senate that was rejected by the Republicans, and a lot less demagoguery about who we are as a country because the Census and reapportionment provisions in the 14th Amendment tell it all.

This is a country that is for everybody seeking opportunity and hope, willing to follow the law and follow our Constitution.

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Mr. RASKIN. Meng).
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Mr. RASKIN. Mr. Speaker, I know Mr. Burchett's prayers go right to the top.

It is always great to be with my friend from Tennessee. Just two quick points on his always trenchant remarks.

One is that one should be clear that under this legislation, they are not roping out of the reapportionment just undocumented people. They are also roping out of the reapportionment permanent residents, people who are green card holders who are on the pathway to citizenship already. They are talking about disenfranchising from the Census reapportionment process millions of people who are lawfully within it. They should be aware of that.

Also, if we were being cynical politically, we would embrace this legislation because it is the red States like Texas and Florida whose congressional delegations are inflated by virtue of counting people who are not citizens. We are simply trying to follow what the Constitution says, which I know is kind of a radical proposition around here these days.

Manning).

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Mr. RASKIN. Mr. Speaker, may I inquire as to the time remaining.

If you strip away all the bombast and all the rhetoric, the gentleman just basically delivered a tirade about immigration but never addressed the fact that their legislation is totally unconstitutional.

If you want to deal with immigration, we had a bill, and the bill would have added hundreds of Border Patrol officers, asylum officers, and judges. The Republican leadership in the Senate said it was a great deal. They got most of what they wanted. It was a great compromise. Yet, who didn't want it? Donald Trump, still the putative leader of those who are left in the GOP, Lincoln's party. Donald Trump didn't want it because he didn't want a border solution. He wants a border crisis.

They are left with a bunch of completely superficial, empty bills like this one, which I doubt will even pass the House. If it does pass the House, it certainly won't pass the Senate. It will never be signed by the President, and it would be struck down immediately by the Supreme Court.

Why are we wasting our time on that instead of getting to the legislation that actually a majority of the Senate was behind? I wish one of my colleagues would address that.

Mr. Speaker,

Mr. Speaker, it is always delightful to hear my friend from Colorado speak. One thing that I do want to point out, however, because there might be some students in the gallery today, is that there can be no illegal aliens and there can be no green card holders in Congress because the Constitution very clearly specifies that you must have been a citizen for 7 years before you run for the House, you must have been a citizen for 9 years before you run for the Senate, and you must be a born U.S. citizen in order to run for President of the United States, which some historians, as I think I mentioned before, attribute to Thomas Jefferson trying to write Alexander Hamilton out of the Presidential sweepstakes.

In any event, I think that my colleagues should probably relax with some of the hyperbole and exaggeration here. After all, all we are saying is: Let's keep doing what we have done since 1790 in the country.

This is the way that the Census and the reapportionment have always been run in the United States of America, and what they are proposing is obviously a radical departure from what the Constitution ordains.

Mr. Speaker,

Mr. Speaker, I am delighted to hear someone on that side of the aisle denounce Vladimir Putin, and I thank him for his remarks. We should definitely avoid putting in a President of the United States who looks up to Vladimir Putin and calls him a genius.

In any event, I could be persuaded by the gentleman's policy arguments, but then we have got to amend the Constitution. This is the way it has been done since the beginning of the Republic. The language in the 14th Amendment is perfectly clear, that it is all of the persons of the State who have to be counted.

Mr. Speaker, I thought you guys were constitutional textualists. I thought you followed the language of the Constitution, the original intent of the Constitution, and the precedent that has been set. I could be persuaded by it. I don't like the fact that Texas and Florida, or any State for that matter, gets an inflated congressional delegation because of this reason or that. Let's have that discussion, but you have got to amend the Constitution. You can't just say: Well, I don't like what is in the Constitution, and therefore I am going to ignore it.

The point about the territories I am not sure I understood. That undercut the gentleman's argument because, of course, the people in the territories are not represented in the House of Representatives except by nonvoting delegates whose votes ultimately don't count and can't count according to a D.C. circuit court decision called Michel v. Anderson.

Mr. Speaker,

Mr. Speaker, why do you need to amend the Constitution if you can just go ahead and do it by statute here?

That is rather curious. I think the gentleman doth protest just a little bit too much. I admire the intellectual honesty in putting forth a constitutional amendment, because that is precisely what needs to be done. I am happy to look at that. I appreciate his candor in admitting that the Constitution needs to be amended in order to overturn more than 2 centuries of practice and everything the Supreme Court has ever said about the issue.

It also should be clear to everybody that only U.S. citizens of majority may vote in Federal elections, that is Federal law, but everybody, including children, who are U.S. citizens are counted even though they can't vote in Federal elections.

Mr. Speaker,

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Mr. RASKIN. Mr. Speaker,

Mr. Speaker, I don't want to be in the position of lecturing my colleagues about something that they often like to say, but the Constitution is the Constitution, and nobody yet has laid a glove on the Constitution or explained how the Supreme Court erred in the unanimous Evenwel decision.

None of them has been able to explain away the very plain language of the 14th Amendment, that it is all the persons of the States who are counted, not the citizens, and that has been the basis for both the Census and the reapportionment since the country began.

So the rest of it just strikes me like election year political rhetoric. To the extent that we want to deal with immigration, we had a great bargain that came out of the Senate, which everybody in this body and that body seemed to be behind, until they heard from Donald Trump that no, he didn't want to see any legislative progress, he wanted to be able to demagogue the immigration issue out on the campaign trail, although he has been severely undermined by all of the exposure that went into that decision.

Again, I haven't heard anyone either explain why their legislation is constitutional, nor have I heard anybody explain what is wrong with the immigration package that we have for hundreds of new Border Patrol officers, hundreds of new Border Patrol and asylum judges and a crackdown of drugs at the border.

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