Commentary: It's Time to Apply the Three-Fifths Compromise to Immigrants
Counting three of every five immigrants for representation would balance citizens’ voting rights with the tax contributions of wealthy Congressional districts.
The principle of "one person, one vote" is a cornerstone of American democracy, enshrined in Supreme Court rulings like Reynolds v. Sims. But as Restoration News has shown, Congressional districts loaded with unnaturalized immigrants undermine this ideal by diluting the electoral power of American voters. Democrats want unlimited immigrants to pad their deep blue districts to make them even safer. Republicans demand the discounting of all non-citizens for representation. But there is a third way. Congress should apply the Constitution’s Three-Fifths Compromise to non-citizens. This would strengthen citizens’ representation in low-immigrant Republican areas while maintaining a slight representational boost in wealthy, tax-contributing Democrat districts.
Liberal critics will claim this dehumanizes immigrants. In reality, it would restore fairness to American voters and offer Democrats and olive branch to compensate for their wealthy districts’ larger contributions to the U.S. Treasury.
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Why Congress Should Revive the Three-Fifths Compromise for Non-Citizens
Republicans, including President Donald Trump, understandably want to remove non-citizens from the Census for apportionment purposes. Their argument is sound. Since only citizens can vote, only citizens should count toward apportionment.
In May 2024, the Republican-controlled House of Representatives passed the Equal Representation Act (H.R. 7109), mandating a citizenship question on the Census and excluding non-citizens from apportionment. If Republicans gain enough support in the Senate to pass it, it’s game over for Democrats winning the House, as it will immediately eliminate dozens of heavily blue districts on which they rely.
Constitutional objections aside, Democrats will understandably argue that it should count for something that they control more high-income districts. These districts pay more in taxes and fuel the economy through higher wealth creation and consumption. From a practical standpoint, excluding non-citizens entirely would force these districts to expand their population dramatically to match citizen populations elsewhere, exacerbating economic disparities between Congressional districts.
Historically and constitutionally, both parties are correct.
Republicans echo Northern Framers’ concerns about disenfranchised populations—today, non-citizen immigrants—inflating representation.
Democrats echo Southern Framers’ arguments that non-voting laborers—today, non-citizen immigrants—add economic and tax value.
The solution lies in the same compromise the Framers struck over a similar deficiency in America’s early labor system, slavery, and its system of government, the deficient Articles of Confederation.
The Three-Fifths Compromise in Article I, Section 2, counted—besides free persons and Indians not taxed—three-fifths “of all other Persons.” This applied specifically to black slaves who could not vote. Just as slaves later became citizens but counted partially for representation before they did, immigrants—the legal ones, anyway—would count partially until the day they become citizens.
Counting three out of every five immigrants for Congressional representation would blunt Democrats’ advantage in high-immigrant districts without fully erasing their economic contribution. It would also prevent high-immigrant districts from nearly doubling in size to accommodate an equal number of citizens, maintaining better population equilibrium than would discounting all non-citizens entirely.
Why the Three-Fifths Compromise Represents Such a Great Precedent
The three-fifths compromise emerged in an era when representation was tied to land value assessments. Originally proposed as a 1783 amendment to shift apportionment toward population, it did not represent a shift in how the Framers viewed representation. Accurately assessing land value had simply become too difficult for the weak federal government, and basing representation on population made more sense.
Like the famed economist Adam Smith, the Framers adhered to a pre-Karl Marx form of the Labor Theory of Value. They considered a laborer’s mere existence as adding to the economic wealth of an area because of that individual’s production potential.
At the 1787 Constitutional Convention, Roger Sherman of Connecticut proposed basing House representation on "free inhabitants," while John Rutledge of South Carolina advocated for tax-based quotas.
Southern delegates insisted slaves contributed as much as Northern laborers, justifying slaves’ inclusion in representation, given the wealthier South's greater tax contribution potential. Northerners opposed this because of the disproportionate political power the South would gain from non-voting slaves.
The Three-Fifths Compromise averted a walkout by Southern delegates without the immense disenfranchisement of Northern voters that would occur if every slave were counted for representation.
Even so, Northern Federalists later derided Thomas Jefferson as an illegitimate president when he won thanks to Southern electoral votes, bolstered by the counting of three of five slaves. By the same token, modern Republicans would not be fully satisfied without the discounting of every single non-citizen. But such is the nature of compromise.
Why Renewing the Three-Fifths Compromise for Immigrants is Constitutional
Though tied exclusively to slavery, the three-fifths Clause's language does not mention slavery, negating the argument that slavery’s abolition abolished it.
The “Father of the Constitution,” James Madison, later explained the Compromise was not written for slavery but rather slavery exposed an omission in the Constitution that needed to be addressed, namely, the existence of a non-citizen population. He suggested states could apply it to slaves, while others might use it for any immigrant or resident who lacks the privileges of full citizenship.
The 14th Amendment did amend the three-fifths clause to base seats in the House on "the whole number of persons." Attorney Dennis Murphy notes, however, in a Case Western Law Review article, Congress can interpret "persons" narrowly to exclude classes of people, such as illegal aliens, based on Congress's apportionment authority under Article I and its ability to define the 14th Amendment, per that amendment’s Section Five.
Why This May Be the Best Deal Democrats Ever Get
The lopsided representation from non-citizen-heavy Democrat districts mirrors the antebellum South's representational advantage, granting them undue House seats.
This must change. But in a polarized Congress, compromise is essential. Although it’s possible Republicans may eventually gain a veto-proof majority in the Senate, moving three-fifths in Democrats’ direction could address the problem sooner.
For Democrats, wealthy urban districts mirror the historical tax powerhouse that southern states like Maryland, Virginia, and South Carolina were at the nation’s founding. Additionally, counting three of every five immigrants would preserve some of the original intent that Congressional representation should be based on tax contribution.
Non-citizens should not fully count toward apportionment because they cannot vote. As the Democrat Party’s popularity wanes, Republicans may be able to eventually take all of Democrats’ foreigners away from them. Just as Southern states with fewer voters but greater tax contribution potential accepted the Three-Fifths Compromise to join the Union, Democrats should embrace a renewed three-fifths compromise applied to non-citizens. Long-term, that may be the best deal they ever get.
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