Immigration, Slavery, and the Three-Fifths Clause: The Census Problem We Didn't Learn About in School

If you're wondering whether this is liberal or conservative, buckle up, Mav — because we're going ballistic.

435 Seats

There are 435 seats in the House of Representatives. Those seats are divided among the 50 states — the greater a state's population, the more seats it is awarded, giving that state greater representation in the U.S. House of Representatives.

How do we determine each state's population? Article I, Section 2 of the Constitution mandates a Census that counts the country's population every ten years. Thus every ten years, the balance of power shifts among the states, depending on each state's "Persons."

Why Persons — and not Citizens — you ask? Slavery.

The Three-Fifths Clause, Through the Lens of the Census

I was correctly taught that under the original Constitution, African Americans were not considered whole people — only three-fifths of a person — and that this translated into greater voting power. For example, if an owner had 500 slaves, the owner had an additional 300 votes.

But I never looked at the Three-Fifths Clause through the lens of the Census. (And the Census problem is precisely how we end the ICE raids. Keep reading.)

The Constitution requires the Census to count the population of "Persons" in each state. For Southern states, each slave counted as three-fifths for Census purposes — so the more slaves a state had, the greater its Census population, which equated to more seats in the U.S. House of Representatives.

The South had an incentive to breed more slaves. More slaves literally meant more power over the North.

Dred Scott and the Civil War

The Missouri Compromise kept the peace until 1857, when Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), ruled — among other things — that Congress did not have the authority to regulate slavery in the territories. Four years later, in 1861, the North and South went to war. After the Civil War, we freed the slaves and eliminated the Three-Fifths Clause, replacing it with a count of "the whole number of Persons in each State." U.S. Const. amend. XIV, § 2.

Immigration, Through the Same Lens

Are you still with me? Good. Now let's look at immigration through the lens of the Census. To be clear: I'm not speculating about anyone's motives — I'm speaking only to the undeniable result, intent notwithstanding.

The more immigrants in a state, the greater the Census population, and the more seats that state gets in the House.

So blue states always have an incentive to be the party of immigration and provide immigrants with safe harbor; and sadly, it provides Republicans an incentive to remove immigrants.

A Solution

What if Democrats agreed to amend the Constitution to require the Census to count only U.S. Citizens — and in exchange, the GOP ends the ICE raids?

I'd say that's a win-win. Am I crazy? Yes, I know I am — but that's how my problem-solving brain operates. I know this solution will never happen. But the point here was not only to educate, but to demonstrate one of the many ways I approach a problem, and solve it.

My name is Karim Merchant, and I'd be honored to have your vote.

An Important Footnote

This article is for educational purposes only. A Washington Supreme Court Justice has no power or authority to amend the U.S. Constitution, alter Census methodology, abolish or restructure ICE, or otherwise act on the hypothetical proposed above — that authority belongs exclusively to Congress and the constitutional amendment process. U.S. Const. art. V.

Amending the U.S. Constitution takes two steps — proposal, then ratification — and both require supermajorities, not a simple majority vote. Proposal: two-thirds of both the House and Senate vote to propose an amendment, or two-thirds of state legislatures call a constitutional convention (a route that has never been used). Ratification: three-fourths of the states — 38 of 50 — must ratify, either through their state legislatures or through state ratifying conventions, whichever Congress specifies.

No president or court plays any role in the process — it bypasses the presidential veto entirely. Only 27 amendments have succeeded out of the thousands proposed since 1789. This is offered purely as an illustration of constitutional analysis, not a policy platform or commitment.