“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.” This line from Section 2 of the 14th Amendment must have seemed fairly straightforward to its authors. In light of the first section’s elevation of blacks to full citizenship in all of the several states, Section 2 was designed to remove Article I’s accounting, for the purposes of apportioning representatives to Congress, of slaves as three fifths of a person. Indians, in the 14th Amendment as in Article I, remained outside the citizenry, and thus were not to be counted for this purpose.
Were the authors of the 14th Amendment able to jump forward 150 years, however, they would no doubt be scratching their heads over the U.S. Supreme Court’s ruling in Evenwel v. Abbott, handed down in early April.
Most reporting and commentary on the ruling characterized it as a “victory for voting rights” and a reaffirmation (in the words of the New York Times) of “a fundamental principle of the American political system, that of ‘one person one vote.’”
Except that it was neither of those things. The fight was over what “one person one vote” meant, rather than the more fundamental question of whether the Constitution requires...