On August 15, 2025, a storm of controversy erupted in Washington after U.S. Senator Bill Hagerty of Tennessee invoked one of the darkest chapters in American constitutional history—the Three-Fifths Compromise—to justify his push for a dramatic overhaul of how the United States counts its population. The senator’s comments, made during a Fox Business interview, have drawn fierce criticism from legal experts, historians, and political opponents, who accuse him of reviving a logic long recognized as a moral stain on the nation.
Hagerty’s appearance on Fox Business was meant to promote his newly introduced legislation, which, if passed, would require the U.S. Census to count only citizens for the purposes of congressional apportionment and Electoral College votes. The bill, which Hagerty claims has the support of 18 co-sponsors, would also add a citizenship question to the decennial census, a move echoing previous efforts by the Trump administration. But it was Hagerty’s defense of the bill—and the historical precedent he cited—that ignited the most heated debate.
“This is all about power,” Hagerty told Fox Business, arguing that so-called blue states are “backfilling” their population losses with “illegal aliens” in order to maintain political clout. “That is, blue states that are losing citizens to states like mine in Tennessee, they’re losing citizens, they’re backfilling with illegal aliens.” According to Hagerty, the Founding Fathers never intended for undocumented immigrants to be counted in the census, and his proposal would correct what he sees as a longstanding misinterpretation of the Constitution.
Pressed by host Ashley Webster on whether his plan was constitutionally sound, Hagerty doubled down, referencing the infamous Three-Fifths Compromise. “There’s a constitutional interpretation, I think, that has been misapplied,” he said. “It goes back to slavery days and, you know, what portion of a person is going to be counted, etcetera.” Hagerty insisted, “A person here illegally should not be counted. That’s just common sense. We need to fix it.”
The Three-Fifths Compromise, reached during the 1787 Constitutional Convention, was a deal between Northern and Southern states that determined enslaved people would count as three-fifths of a person for the purposes of apportionment and taxation. While all enslaved individuals were included in the census—albeit in what legal scholar Steve Vladeck described as an “odious way”—the compromise has long been condemned as a symbol of the dehumanization inherent in American slavery. The Fourteenth Amendment, ratified in 1868, abolished the compromise and mandated that representatives be apportioned among the states “according to their respective numbers, counting the whole number of persons in each State.”
Critics argue that Hagerty’s proposal is not only unconstitutional but also a dangerous step backward. “Someone should mount a giant blowup of the 14th amendment in the Senate Republican cloakroom, because these people apparently haven’t read it,” said Matt Bennett, Executive Vice President for Public Affairs at the think tank Third Way, as reported by AlterNet. “The U.S. Constitution is unambiguous. No ‘interpretations’ have been ‘misapplied.’”
Communications professional Mathew Helman echoed this sentiment, writing, “As MAGA tries to reverse-engineer a way around the Constitution, we’ll get lots of dishonest word salad like this.” Evaristus Odinikaeze, a Wall Street investment banker, was even more blunt: “So we’re clear, Sen. Hagerty’s ‘legal rationale’ is to drag us back to the logic of the 3/5 Compromise. Counting human beings as fractions was a moral stain on this country, not a precedent to revive. The Constitution requires an actual enumeration of all persons living in the U.S. Anything less is an attack on democracy itself.”
Legal scholars and historians are quick to point out that the Constitution’s language has, since the Fourteenth Amendment, been unequivocal: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” The use of “persons” rather than “citizens” was a conscious choice by both the Framers and the authors of the Fourteenth Amendment. As The New Republic notes, in 1866, Congress explicitly decided that apportionment populations should include noncitizens as well.
Despite this, Hagerty remains adamant. “We should only be counting citizens,” he said, arguing that his bill would end what he sees as unfair advantages for Democratic-leaning states. He criticized the longstanding practice of including noncitizens in the census as a means for blue states to artificially inflate their representation in Congress.
Hagerty’s proposal is not without political context. Former President Donald Trump, who has for years sought to change the way the census is conducted to benefit red states, has publicly applauded the legislation. In July, Trump declared, “It’s going to get in. It’s going to pass, and we’re going to be very happy.” Far-right Representative Marjorie Taylor Greene of Georgia has also introduced a similar bill in the House. However, with the Senate filibuster still intact, neither bill is expected to become law in the near future.
Supporters of Hagerty’s bill argue that only citizens should have a say in the country’s political direction and that counting undocumented immigrants distorts political representation. They point to concerns about border security and the integrity of the electoral process, framing the issue as a matter of “common sense.” Hagerty himself insisted, “It has been the motive behind the crime at our Southern border that President Trump is fixing and the American public is loving it.”
But opponents see the effort as a thinly-veiled attempt to disenfranchise immigrant communities and tilt political power toward states with fewer noncitizen residents. They warn that such a move would not only violate constitutional principles but also set a dangerous precedent for excluding other groups from the count in the future. “It’s a terrifying prospect that Republicans are even pushing such blatantly unconstitutional legislation,” wrote The Daily Kos. Some critics also voice concern about the Supreme Court’s willingness to uphold such a law, given its current composition.
Historically, the U.S. Census has always counted every resident, regardless of citizenship status. In fact, when the Constitution was first drafted, there was no such thing as an “illegal” immigrant; nearly anyone could enter the country freely. It wasn’t until 1929 that entering the U.S. without authorization became a federal crime, and only as a misdemeanor. As AlterNet highlights, “Undocumented immigrants have always been counted in every census since there have been people considered undocumented. Not according to Hagerty.”
The debate over who should be counted in the census is not new, but Hagerty’s invocation of the Three-Fifths Compromise has touched a nerve, forcing the nation to confront its complicated past. As legal and political battles loom, the question remains: Will the United States continue to count every person residing within its borders, or will it revert to a system that divides, excludes, and diminishes the humanity of millions?
For now, the Constitution stands firm in its demand for an “actual enumeration” of all persons. But as the 2026 census approaches, the fight over who counts in America is far from over.
