We, the People and Us, the Population

    In 2000, the German-American conceptual artist Hans Haacke installed a participatory art project in the northern open-air courtyard of the German Reichstag. A 21 by 7 meter wooden trough, it contained the words DER BEVÖLKERUNG (To the Population) running its length in neon. Members of the parliament were invited to bring 100 kg of soil from their home districts to fill the space around the letters. Haacke used the same type face that Peter Behrens had adopted for the 1916 dedication to the building, DEM DEUTSCHEN VOLKE (To the German People), which remains on the façade over the main entrance. The project had been enormously controversial before its installation, in part because of its ambiguous reference to Nazi “blood and soil” doctrine. But it won approval by a narrow margin of 260 to 258 votes with 31 abstentions, and still survives. It is even possible to watch a time-lapse video of the installation as it changes its face with the periodic overgrowth and pruning of vegetation that grows in its soil.

Stripped to its essentials, the dispute over Haacke’s work involved the crucial distinction between “Bevölkerung” or “population” and “Volk” or “people.” Whereas the former implies the total number of persons living in a specific location, the latter has two basic meanings. The “people” can signify what the Greeks called an “ethnos,” an ethnically, nationally or even racially defined community or tribe, or a “demos,” the citizens of a polity, who become its rulers when the form of government is called a democracy. In its long history, the concept of a “people” has alternated between one definition and the other. In the not so distant German past, das Volk had been understood as an “ethnos,” which meant the deliberate exclusion—indeed, even extermination–of certain groups deemed outside of the national community. But that it still harbored its alternative meaning as “demos” was made clear when East Germans in 1989 protested against their Communist rulers that “Wir sind das Volk!” (We are the people).

Because of the frequent abuses committed when “ethnos” trumps “demos” as the defining characterization of “the people,” we are inclined to worry when the former gains hegemony, as it now seems to be doing in the backlash against cosmopolitan globalization. Ethno-nationalism carried to an extreme often does have a sinister outcome. But the fraught issue of minority rights for ethnically defined communities in a polity deriving its legitimacy from popular sovereignty shows that it would be dangerously hasty to assume that “demos” should trump “ethnos” in every case. The “tyranny of the majority,” after all, can put pressure on minority cultures to assimilate to the whole, threatening to obliterate one instantiation of peoplehood in the name of another. Honoring the distinction between “black lives matter” and “all lives matter” implies, in fact, that under certain circumstances, it can be more progressive to emphasize the rights of a concrete community defined ethnically rather than submerge all differences in a demos that masks actual inequalities within it.

Whether identified as ethnos or demos, “the people” bestows on its members certain privileges. Its tacit logic is, after all, inherently exclusionary, limiting its company to those belonging either to a homogeneous community defined in ethnic or national terms, or to those enjoying the status of citizen in a polity legitimated through the exercise of popular sovereignty. It typically needs an “other,” sometimes located externally, sometimes identified with a negatively marked fraction within it, against which it defines itself. As the current debate over the ambiguous implications of “populism” makes abundantly clear, “the people” can also function as an oppositional term to “elites,” however they are defined, which harkens back to the Roman distinction between plebeians and patricians. When prefaced by the adjective “common” or conflated with “the masses,” it can connote the under-privileged or disempowered in a polity that is less homogeneous than it may pretend to be. “Power to the people” implies that the victims of oppression still lack what is their rightful possession. Rather than claiming to be descriptive and actual, the honorific can thus become aspirational and potential.

However defined or whatever its degree of actuality rather than potentiality, “the people” is normally accorded a tacit subjectivity, allowing it to exercise a collective will, whose expression is the basis for political legitimacy or sovereign authority. “We, the people” is, however, a rhetorical strategy for creating what it asserts in the act of assertion, which then leads to an inevitable struggle to embody or represent it by different claimants. There is often what might be called a metonymic displacement in the contest for representative embodiment, as a part of the whole claims or is granted the role of the putative essence of the collective identity. As in the comparable cases of feminists asserting their right to speak for all women or a vanguard political party acting as spokesman for the working class, it is often those with heightened consciousness and organizational discipline who claim to be the people’s tribune. But at other times, there is a more tacit and passive attribution of essential embodiment, as for example in the idea of “the silent majority.” Or as the Marxist Alain Badiou once observed, “the middle class is ‘the people’ of capitalist oligarchies.”¹

Much more can be said about the vexed history of the concept of “the people” and its internal tensions, but I want to return to its contrast with the alternative notion of a “population.” More a sociological or demographic than political category, the latter merely signifies all persons living in a territory, whatever their citizenship status or membership in an ethnic or national community. Whereas “the people” can sometimes be construed as a generic entity, with an essence that can be embodied or represented, a “population” is a more explicitly nominalist concept based on the aggregation of individuals into a contingent sum through the act of counting. While it can be more inclusive than a notion of peoplehood, it is also more abstract, ignoring substantive, qualitative distinctions in favor of formal, quantitative sameness. Or more precisely, its numerical homogeneity—each individual is equal to all others in enumerating the whole—trumps the qualitative heterogeneity of its actual members.

A population is also politically inert, lacking the imaginary subjectivity attributed to a people. It is meaningless to say “we, the population” or “power to the population,” and impossible to locate its alleged collective will. Its constituent members are in a sense like the passive subjects of a dynastic state, which is legitimated neither through the rule of an ethnos nor a demos, but rather by hereditary or divine right. That is, they are individual subjects in the sense of being subjected to (etymologically, “being thrown under”) the rule of another, rather than part of a collective subject asserting its sovereign will. Instead of searching for a metonymic embodiment of the whole, which represents its essential character and can speak for all, the population can be represented only through a random sample which draws on statistical probability to create a microcosm of the whole. Whereas the right to represent “the people” is based on a claim of embodying its essence or highest level of consciousness, representing “the population” is merely a function of contingency and scale.

With these differences, it might seem as if “population” is always a neutral concept, which at best serves states in the pursuit of policies that will benefit those whose welfare they are designed to foster. But in fact, it often has a complicated and dynamic relationship with the opposing notion of “the people.” As the controversy over the Reichstag installation illustrates, that relationship often becomes highly contentious. Haacke’s great provocation was his gentle, but insistent reminder that there is always a surplus population living in German territory that is neither equivalent to an ethnically homogeneous Volk nor to an active citizenry able to participate in the exercise of popular sovereignty. It includes all of those residents, some of them economic migrants, others political asylum seekers, who are unable to determine their own fate.

In times of relative abundance and tranquility, such persons can be treated more or less generously as “guests” of the German people, enjoying the hospitality that Kant had deemed a universal right. In times of economic distress and cultural uncertainty, however, they can be resented as unwelcome intruders, “aliens” intent on “polluting” or “diluting” the putative homogeneity, understood sometimes in religious as well as racial terms, of the German Volk or stigmatized for living “parasitically” off the welfare provided by tax-paying citizens. Because one image can easily turn into the other, Haacke’s installation is a constant reminder that the German population contains vulnerable members who live precarious lives at the discretion of those who claim to be legitimate members of the people, however it may be understood.

The German struggle to deal with the relationship between people and population has, of course, been haunted by memories of its abusive history, which helps explain both the courageous effort by the government of Angela Merkel to accommodate the flood of migrants in this past decade as well as the vigorous resistance to it. But in ways that need to be more explicitly addressed, so too has a comparable struggle in American history. In what follows, I want to focus on two controversies that taken together allow us to see how complicated and entangled the relationship between people and population can be and how varied their political implications. The first concerns the notorious 3/5 clause in the American Constitution; the second the current debate over the 2020 census.

A great deal of ink has been spilled, mostly in condemnation, over the compromise reached between Northern and Southern states in 1787 to determine their population for purposes of representation in Congress—or more precisely, the House of Representatives in the bi-cameral legislature created shortly before by the Founders’ “Great Compromise”—and direct federal taxation.² In the fateful words of Article I, Section 2, Clause 3 of the Constitution, the relevant population was counted “by adding the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.” Without mentioning slavery—a word deliberately left unwritten in both the Declaration of Independence and the Constitution–or race, the Founding Fathers managed to imply that Black slaves were worth only 60% of free whites. And in an act of even greater contempt, which is less often acknowledged, they stated explicitly that Native Americans who lived in tribes were worth nothing at all (a conclusion that was blithely retained when the 14th Amendment overturned the 3/5 clause for former slaves in 1866).

The invidious measuring of human worth in implicitly racist terms is hard not to condemn, and was by certain of the framers like Gouverneur Morris, who had coined the phrase “We, the people” and was opposed to its limitation to only a portion of the population. But ironically, the compromise was as much a ploy of Northern framers as Southern ones. Although the formula had been introduced by Virginian James Madison in 1783 in an unsuccessful amendment to the Articles of Confederation, it was Roger Sherman of Connecticut and James Wilson of Pennsylvania who brought it to the floor of the Constitutional Convention, where it was seconded by Charles Pinckney of South Carolina. Having tried and failed to get property holdings—including human chattels—as the basis for representation in Congress, the Southerners would have been happy to number slaves as whole persons in calculating their population, while, of course, denying their membership in the people, understood both in terms of ethnos and demos. Instead, the compromise tied their representation in Congress to taxation as property, a more indirect method that was palatable to all parties, the North because it seemed less directly to acknowledge slave-holding as a basis for representation, the South because the taxes based on considering their slaves as 3/5 persons were never actually levied. For a while, the 3/5 calculation was sufficient to bolster Southern representation both in Congress and, even more fatefully, in the Electoral College, enough in fact to help elect slave-holding presidents like Thomas Jefferson of Virginia. Its effects were somewhat mitigated when waves of immigration after 1830 made the Northern states significantly more populous than the South even with its slaves counted as 60% human. But it still made the playing field uneven enough to allow the nefarious fugitive slave law of 1850 to pass. Ironically, the balance would have remained longer in favor of the South had slaves been considered as whole persons for purposes of counting the population and the apportionment of seats in the House of Representatives.

When that change did finally come about after the Civil War, for a decade or so, the active citizenry of the Southern states now included all members of their population—the hapless “Indians not taxed” aside, at least until the 1924 Indian Citizenship Act, and then only in part—who were able to exercise their democratic rights. But then with the end of Reconstruction and the onset of the Jim Crow era, Blacks were once again systematically denied those rights, while nonetheless still being counted as full members of the population. The result, to compound the irony, was that representation of the South in Congress and in the Electoral College was enhanced because 3/5 had become 5/5 for purposes of counting population, while restrictive notions of both ethnos and demos denied Blacks full participation as active, vote-casting members of the American “people.” Although the Civil Rights era did much to challenge that outcome, it is abundantly clear that even more needs to be done to close the gap between passive population membership and active democratic participation.

Or rather, much needs to be done to prevent it from closing in the wrong way, which is illustrated by the current controversy over the census. Here the threat differs from its predecessor during the era of the Three Fifths Compromise or even that of Jim Crow. During those periods, advocates of expanding the population to include unfree inhabitants of certain states did so with the objective of increasing their congressional representation and membership in the Electoral College. They were intent on maximizing their population count, while restricting inclusion in the “people” who had the power to act politically. Or more precisely, they were hopeful of increasing the political clout of those who were privileged to be part of their exclusive version of the “people” by magnifying their power in the larger national competition between states. Adding to the disproportional representation deliberately embodied in the Senate, which the “Great Compromise” fashioned to give smaller states equal votes with larger ones, they wanted to extend it as well to the House of Representatives, which was intended to be a microcosmic reflection of actual population distribution.

In the current controversy over the census, the opposite logic is at work. The Constitution mandates that every ten years the “whole number of persons in each State” should be “actually enumerated.” That is, it is a question only of the population, normally understood in terms of current residency, and says nothing about membership in “the people” understood either as an ethnos or a demos, although subsequent decisions by all branches of government have allowed questions to be included in the census that determine the statistical prevalence of sub-categories of that “whole number.” Whereas pressure to be as inclusive as possible—Native Americans belonging to tribes aside—was exerted during the era of the Founders by slave-holding States, now the pressure to be as restrictive as possible is being applied by arguably their political legatees. When an attempt to include a citizenship question, urged as early as a December, 2017 by the Department of Justice, was deemed problematic by the Supreme Court in June, 2019, for discouraging non-citizens from participating, the Trump administration tried another tactic. In a memorandum of July 21, 2020 to the Secretary of Commerce, the President made his intention to exclude illegal aliens from the count unapologetically explicit.

The Constitution does not specifically define which persons must be included in the apportionment base. Although the Constitution requires the “persons in each State, excluding Indians not taxed,” to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census. Instead, the term “persons in each State” has been interpreted to mean that only the “inhabitants” of each State should be included. Determining which persons should be considered “inhabitants” for the purpose of apportionment requires the exercise of judgment. For example, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are “persons” who have been excluded from the apportionment base in past censuses. Conversely, the Constitution also has never been understood to exclude every person who is not physically “in” a State at the time of the census. For example, overseas Federal personnel have, at various times, been included in and excluded from the populations of the States in which they maintained their homes of record. The discretion delegated to the executive branch to determine who qualifies as an “inhabitant” includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.³

Challenged in federal court, the memorandum is not yet operational, so the Administration decided on another stratagem. On August 3, 2020, it announced it would end the census a month earlier than planned, on September 30th rather than the end of October. The likely outcome of that truncated effort, many observers have worried, will be an undercount of immigrants, both legal and illegal, who are mostly Latinx and inclined to vote Democratic (although rural inhabitants and renters may also be slighted). The result would be to diminish the seats assigned in the next Congress to the states where aliens are concentrated and by extension the number of electors sent to the Electoral College for subsequent presidential elections. The influx of immigrants to the North in the antebellum era eroded the advantage gained by the South through the disparity between their population and recognized citizens; latter-day defenders of the Confederacy in the current administration are determined it won’t happen again.

How this will all play out is still uncertain, but what is important to realize is the extent of the entanglement of the “people”—understood both as ethnos and demos, although not always in congruent ways–with the “population,” despite the categorical distinctions elaborated aboveThey are especially entangled in a system like ours where who gets to represent “the people” and enjoys the power that flows from that representation depends to a significant extent on the counting and location of the “population.” But as shown by both controversies, political power is not only dependent on the “population,” but the question of who defines and enumerates the “population” can also be determined by those with political power. There is, in other words, a reciprocal magnetic field that ties together the neon letters in Hans Haacke’s Reichstag installation and Peter Behrens’s slogan on its façade. And like magnetic fields in nature, it has the remarkable ability to flip from time to time, so that expanding or contracting the gap between the two poles may well depend on which is pointing north and which south.

Notes
<sup>1. Alain Badiou, “Twenty-Four Notes on the Uses of the Word ‘People’,” in Badiou et al., What is a People?, trans. Jody Gladding (New York, 2016), p. 29.↩
2. For a powerful account of its role in the Constitution’s accommodation with slavery, see Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (Armonk, NY. 1996). He is particularly critical of Jefferson, both before and after the founding of the nation.↩
3. Donald Trump, “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census,” July 21, 2020; https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/↩</sup>