Why Is Senator Bringing Up Slavery-Era Rule to Discuss the Census?

Senator Bill Hagerty is dusting off the Three-Fifths Compromise as precedent for his bill to exclude undocumented immigrants from the U.S. Census.

Hagerty appeared on Fox Business Friday to support the legislation, which would end the practice of counting all residents of a state—regardless of citizenship status—in the decennial census, which is used to determine congressional apportionment.

“We should only be counting citizens,” he said, arguing that his proposal to abandon centuries of precedent would stop Democratic states from “backfilling with illegal aliens.”

Fox Business host Ashley Webster let out a concerned huff and then asked: “Is it constitutionally legal to do that?”

“There’s constitutional interpretation, I think, that has been misapplied,” Hagerty replied. “It goes back to slavery days and, you know, what portion of a person is going to be counted, et cetera.”

Here, of course, he was referring to the notorious Three-Fifths Compromise, reached between Northern and Southern states at the 1787 Constitutional Convention, under which only three-fifths of a state’s enslaved population counted for apportionment and taxation purposes (all enslaved individuals were still included in the federal census, even if in an “odious way,” as legal scholar Steve Vladeck put it).

Not done making ludicrous statements in support of his bill, Hagerty went on to claim it was “not the intent of Founding Fathers” to count undocumented immigrants.

But the Framers, even while including the Three-Fifths Compromise, conspicuously opted to use the term “persons,” rather than “citizens,” to describe who was to be counted. In 1866, when the Fourteenth Amendment did away with the compromise, members of Congress chose to include noncitizens as well, deciding that apportionment populations include “the whole number of persons in each State.”