What legal arguments and court decisions govern who must be counted for congressional apportionment under the 14th Amendment?
Executive summary
The Fourteenth Amendment’s apportionment provision requires Representatives to be apportioned “according to their respective numbers, counting the whole number of persons in each State” (with the historical caveat “excluding Indians not taxed”) — a textual command that replaced the Three‑Fifths compromise after the Civil War [1] [2]. Judicial doctrine that actually governs who is counted and how apportionment disputes are resolved is a mix of constitutional text, congressional power over the census and apportionment, and a body of Supreme Court decisions that make redistricting and equal‑population rules justiciable while rendering Section 2’s enforcement largely dormant [3] [4] [5] [6].
1. The constitutional baseline: “whole number of persons” and its Civil War provenance
Section 2 of the Fourteenth Amendment expressly directs that Representatives be apportioned by the “whole number of persons” in each state, thereby eliminating the pre‑Amendment three‑fifths rule and signaling that formerly enslaved people would be fully counted for representation and electoral votes [1] [2].
2. Congress’s authority over the census and apportionment mechanics
The Enumeration Clause and subsequent statutory practice give Congress broad authority to direct the census and to enact apportionment methodology, which the courts have recognized as a congressional power distinct from the raw textual command to count persons [3] [4].
3. Judicial enforcement: from political questions to “one person, one vote”
Although courts long treated representation questions as political and non‑justiciable, the Supreme Court made apportionment disputes justiciable in Baker v. Carr and then imposed the equal‑population principle in cases such as Wesberry v. Sanders and Reynolds v. Sims — the “one person, one vote” framework that governs districting for congressional seats [5] [7].
4. Equal Protection and limits on discriminatory practices in apportionment
The Equal Protection Clause of the Fourteenth Amendment has been central to modern challenges to redistricting: the Court has invalidated racial gerrymanders (Shaw v. Reno) and applied strict scrutiny where race predominated in drawing lines (Miller v. Johnson; Cooper v. Harris), requiring compliance with both constitutional equal‑protection norms and the Voting Rights Act in appropriate cases [8] [7].
5. Section 2’s enforcement gap and the political‑question problem
Section 2 of the Amendment contains a penalty mechanism tied to disenfranchisement — a capitation penalty for states that abridge the male citizen franchise — but that provision has been little used and courts have generally avoided ordering reapportionment based on Section 2, often invoking non‑justiciability or deferring to Congress; legal commentators call Section 2 today largely a historical curiosity [6] [9] [10].
6. Specific contested issues and doctrinal limits — what is settled and what remains open
What is settled: apportionment is based on persons, Congress sets the census and method, and courts will police districting for equal population and racial discrimination under the Fourteenth Amendment [1] [3] [5] [8]. What remains contested or unresolved in federal decisional law within these sources includes whether and how Section 2’s penalty could be revived to strip seats, and certain practical counting questions — for example disputes over inclusion or exclusion of specific population categories in apportionment — are shaped more by statutory census practice and congressional action than by a robust body of Supreme Court rulings cited here [6] [4]. The sources do not provide a definitive recent Supreme Court ruling that exhaustively defines every class of persons who must be counted beyond the text’s “whole number of persons,” so any claim about categories not addressed in these materials should be treated as beyond this reporting [1] [4].