Posted by Eugene Volokh:
"Our Unconstitutional Census":
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1250274418
How many representatives should each state have? The answer currently
turns on total state population. But a [1]Wall Street Journal op-ed by
LSU law professor John Baker and pollster Elliot Stonecipher argues
that this is unconstitutional: The apportionment should be determined
by counting only citizens plus permanent resident noncitizens. I don't
think this is right, and I thought I'd blog briefly about that. (I
also have a [2]letter to the editor in today's Wall Street Journal
that tries to summarize this in 200 words.)
1. To begin with, I should stress that Baker and Stonecipher are
indeed arguing that the count should include both citizens plus
permanent resident noncitizens. Parts of the op-ed seem to suggest
that only citizens should be counted; but I've confirmed that this was
not their intention. The piece was originally much longer than the
Journal's word limits allow, and much was cut in the process; Prof.
Baker was kind enough to allow me to include his original piece,
followed by an exchange he and I had, in this post -- you can see it
by click on "Show the original full Baker / Stonecipher draft" below.
(He also asked me to mention, though, that he is out of the country
and will not be able to read and respond to any of the comments that
this post might produce.)
2. On to the constitutional basis for the census's current practice of
counting everyone who lives in the U.S., whether citizen, permanent
resident alien, legal temporary resident alien (which could include
people who have lived here for years, as students or as temporary
workers), or illegal alien. The Fourteenth Amendment says, in relevant
part,
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. But when the
right to vote at any election for the choice of electors for
President and Vice-President of the United States, Representatives
in Congress, the Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and
citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion which the
number of such male citizens shall bear to the whole number of male
citizens twenty-one years of age in such State.
The first sentence strikes me as pretty explicit: Apportionment must
be "counting the whole number of persons in each State," with one
explicit exception. What's more, the next sentence explicitly mentions
"citizens," which further makes clear that "the whole number of
persons" doesn't mean citizens or eligible voters. This provision was
a revision of [3]article 1, � 2, which said,
Representatives and direct Taxes shall be apportioned among the
several States which may be included within this Union, according
to their respective Numbers, which shall be determined by adding to
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.
So there too the focus was on "the whole Number of free Persons" in a
State (with two exceptions), and not citizens.
The Journal op-ed doesn't mention these provisions at all, but the
original long Baker/Stonecipher draft did speak to this:
At the Founding, slavery largely dictated the Constitution�s
language on the Census. Thus, the apportionment of representatives,
as well as direct taxes, was constitutionally to be undertaken
according to an �Enumeration� of "the whole Number of free Persons,
including those bound to Service for a Term of Years, and excluding
Indians not taxed, [and further including] three fifths of all
other Persons," i.e., slaves. It was to be a count of �We the
People of the United States,� and within the stated categories of
slaves, indentured servants and �free Persons,� each State�s
representation in the House of Representatives was tied to
permanent residence within the country.
The first Congress provided that the 1790 census would count
�inhabitants� and �distinguish� key and notable subgroups,
directing, �[t]hat the marshals of the several districts of the
United States ... cause the number of the inhabitants within their
respective districts to be taken; omitting in such enumeration
Indians not taxed, and distinguishing free persons, including those
bound to service for a term of years, from all others;
distinguishing also the sexes and colors of free persons from all
others; distinguishing also years and upwards from those under that
age ...� (italics added) The term �inhabitant� at that time had a
well defined meaning including �one who is bona fide a member of a
State, subject to all the requisitions of its laws, and entitled to
all the privileges which they confer.� See Oxford English
Dictionary.
So the logic is that the constitutional text "whole number of persons
in each State" means "whole number of inhabitants" (borrowing from the
1790 census authorization act), which in turn means "whole number of
bona fide members of a State, subject to all the requisitions of its
laws, and entitled to all the privileges which they confer," and which
in turn means "whole number of citizens or permanent resident aliens."
Yet I don't think this works. First, the theory that "we the People"
applies here and includes slaves (at a 3/5 level) and legal permanent
residents (under a theory of "virtual representation," as an e-mail I
quote below from Prof. Baker suggests) but not others doesn't strike
me as persuasive.
Second, the definition of "inhabitant" they give stems from [4]an 1824
House of Representatives contested election decision that was
interpreting the [5]preceding sentence in the constitution, "No Person
shall be a Representative who shall not have attained to the Age of
twenty five Years, and been seven Years a Citizen of the United
States, and who shall not, when elected, be an Inhabitant of that
State in which he shall be chosen." Of course those made eligible by
that sentence would undoubtedly be American citizens, the question
being simply whether they are citizens who reside in that particular
state. But this hardly means that "inhabitant" was any narrower than
"one who inhabits."
In fact, if one looks at leading legal dictionaries of the late 1700s,
one finds the word defined as "a dweller or hous[e]holder in any
place" in both Jacob's Dictionary (10th ed., London 1782) and
Cunningham's Dictionary (3d ed., London 1783). Burn's Dictionary (1st
ed., London 1792) notes that "with respect to the public assessments,
and the like," the term does "not extend to lodgers, servants, or the
like; but to householders only," but that clearly can't be the
definition contemplated by the first Census Act, which surely did not
count only householders.) So the original Census Act, the original
constitutional provision, and the currently effective constitutional
provision all point in the same direction: Apportionment is to be done
based on actual residents.
To be sure, the Framers likely weren't thinking at all about illegal
aliens at the time; it's hard to tell for sure what they would have
said had they thought about them. But we know what they did say: "the
whole number of free Persons" and, several decades later, "the whole
number of persons in each State." In the absence of some strong
evidence to the contrary, that sounds like it includes illegal aliens
as well as legally resident ones. It certainly doesn't seem
"outrage[ously]" "unconstitutional" for the Census to take such a view
of the provision.
3. Now the op-ed and the original draft do mention one constitutional
authority:
In the 1964 case of Wesberry v. Sanders, the Supreme Court said,
�The House of Representatives, the [Constitutional] Convention
agreed, was to represent the people as individuals and on a basis
of complete equality for each voter.� It ruled that Georgia had
violated the equal-vote principle because House districts within
the state did not contain roughly the same number of voting
citizens. Justice Hugo Black wrote in his majority opinion that
�one man�s vote in a congressional election is to be worth as much
as another�s.� The same principle is being violated now on a
national basis because of our faulty census.
But this was an imprecise statement on the Court's part, in a case
where the basis for the count wasn't at issue. Even Baker and
Stonecipher don't take it seriously, because they think the Census
should count not just voters, not just voting age citizens, not just
all citizens (note that the [6]percentage of Americans under 18 varies
from 22.3% in West Virginia to 32.2% in Utah, so there is a
substantial difference between counting voting age citizens and all
citizens), but all citizens plus legal permanent residents.
Plus the constitutional text expressly doesn't limit itself to voters,
but instead talks about persons generally. In the Framers' time, some
states had considerably fewer voters per capita than others, because
they had higher property qualifications for voting. (I believe that
the percentage of the white male adult citizen population eligible to
vote ranged from 60% in some states to 90% in others.) "Equality for
each voter" would have meant those states would get fewer
representatives. Yet the framers expressly rejected that position by
calling for representation by total population (with special provision
for slaves), not by voting population.
So it seems to me that it is the op-ed's proposal that would likely be
unconstitutional, and the current Census scheme is likely
constitutionally permissible. And even if the text is ambiguous enough
to leave Congress with the flexibility to choose either approach (and
I don't think that's so), the current approach seems to be at least
one of the constitutionally permissible options.
([7]Show the original full Baker / Stonecipher draft.)
The full Baker / Stonecipher draft, posted with Prof. Baker's and the
Journal's permission:
WILL THE 2010 US CENSUS DEFRAUD MANY STATES OF REPRESENTATIVES IN
CONGRESS AND VOTES IN THE ELECTORAL COLLEGE?
Through ignorance and arrogance, the Census Bureau is poised again to
defraud a number of States of one or more members in the House of
Representatives to which they should be entitled by the Constitution.
It is the Bureau�s responsibility to count dicenially the number of
American citizens who are at the time legal, permanent residents of
one of the United States. This Census count determines the number of
congressional representatives to be accorded each of the several
States. In recent history, the Census Bureau has failed to confine its
count to persons who are either American citizens or legal, permanent
residents of the United States. The Bureau has chosen instead to
include all persons physically present within the United States,
without questioning whether or not they are citizens or are here
legally or illegally. The Census Bureau has thus given a newly
expansive and wholly unintended meaning to the time-honored phrase �We
the People of the United States� and in doing so has badly distorted
representative government as envisioned by our Founding Fathers and
prescribed in our Constitution.
1.WHO SHOULD GET COUNTED?
That the census count is not simply a numerical snapshot of only
American citizens and those permanently residing within the United
States legally is one of (albeit certainly not the only) the best
dirty little secrets kept by a government agency located in our
Nation�s Capitol. Not only is this over-count calculated to skew the
immigration debate by further blurring the line between legal and
illegal residents in this country, it also is designed to effectuate
both political and economic power shifting among the several States.
In addition to determining each State�s number of representatives in
the House of Representatives, the Census will determine a State�s
electoral vote count for President and its share of $300 billion in
federal funds. Citizens from States that have recently lagged in the
numerical count behind States whose gained numbers can be largely (if
not totally) attributed to the inclusion of non-citizens and
non-resident immigrants � which, over several Censuses, has been all
but five to twelve States � ought to be outraged that their
representatives and senators, regardless of party, are silently
standing by and allowing the Census Bureau to erode their States'
rightful political powers by utilizing an over-inclusive count that
makes a mockery of the Constitution�s mandate for representative
government.
At the Founding, slavery largely dictated the Constitution�s language
on the Census. Thus, the apportionment of representatives, as well as
direct taxes, was constitutionally to be undertaken according to an
�Enumeration� of "the whole Number of free Persons, including those
bound to Service for a Term of Years, and excluding Indians not taxed,
[and further including] three fifths of all other Persons," i.e.,
slaves. It was to be a count of �We the People of the United States,�
and within the stated categories of slaves, indentured servants and
�free Persons,� each State�s representation in the House of
Representatives was tied to permanent residence within the country.
The first Congress provided that the 1790 census would count
�inhabitants� and �distinguish� key and notable subgroups, directing,
�[t]hat the marshals of the several districts of the United States ��
cause the number of the inhabitants within their respective districts
to be taken; omitting in such enumeration Indians not taxed, and
distinguishing free persons, including those bound to service for a
term of years, from all others; distinguishing also the sexes and
colors of free persons from all others; distinguishing also years and
upwards from those under that age ��� (italics added) The term
�inhabitant� at that time had a well defined meaning including �one
who is bona fide a member of a State, subject to all the requisitions
of its laws, and entitled to all the privileges which they confer.�
See Oxford English Dictionary.
Notably, it was a matter of open concern at the time of the Founding
that a State would manipulate its population numbers in order to
increase unfairly its representation in the House and its votes in the
Electoral College. As a check against abuses of population
over-counting, the Framers thus tied the level of direct taxation to
the Census count, thereby balancing a benefit (representation in the
House) with a burden (direct taxation). As James Madison wrote in The
Federalist (No. 54), �It is of great importance that the states should
feel as little bias as possible, to swell or to reduce their numbers.�
The Thirteenth Amendment, ending slavery and involuntary servitude,
made everyone a free person. The Fourteenth Amendment thereafter
declared �All persons born or naturalized in the United States and
subject to the jurisdiction thereof are citizens.� The Census count,
however, (unlike the right to vote in the Fifteenth Amendment) was not
tied to citizenship, but included as well persons who were
foreign-born but had not yet been naturalized, so long as they were
permanent residents of the United States. The Amendment accordingly
provided for apportionment of representatives by �counting the number
of whole persons in each State, excluding Indians not taxed.�
2. WHO DOES GET COUNTED?
Today, with large numbers of foreign-born persons in the country
temporarily � some legally and some not � several States, aided and
abetted by the Census Bureau, appear to have manipulated their Census
counts so as �to swell��their numbers� at the expense of other States.
Over several Censuses, the illegitimate beneficiaries of the Bureau�s
current practice to count anyone �present� within the State, without
regard to citizenship, permanent residence status, or even questioning
legal status, have been New Mexico, California, Arizona, Texas,
Colorado, and as many as seven others. Virtually all the remaining
thirty-eight to forty-five States have experienced an unfair erosion
of their representative power in re-apportionment and votes in the
Electoral College.
More particularly, according to Election Data Services, as of its
December 2008 release based on latest (July 1, 2008) official Census
Bureau estimates, the loss of House seats as a result of the 2010
Census is projected to be as follows: 1) States certain to lose one
seat are Iowa, Louisiana, Massachusetts, Michigan, New Jersey, New
York, Ohio, and Pennsylvania; 2) States likely (but not certain) to
lose a seat are Illinois, Minnesota, Missouri, and Ohio (a second
seat). A rough analysis of available information suggests that, if the
decennial census did not increase the count of non-legal residents in
other states, Louisiana, for example, would almost certainly not lose
a seat. There is every reason to believe that one or more of the other
States projected to lose representatives would likely not do so if the
count proceeded along proper lines, including permanent residence, but
not including foreign-born persons here temporarily as guest workers,
or otherwise in this country, whether legally or illegally. A return
to this method of taking the Census, as constitutionally prescribed,
alone can restore representative government to �We the People of the
United States.�
3. THE SUPREMACY, NOT OF LAW, BUT OF NUMBERS
The Census has drifted far from its constitutional roots. From the
first Census until the late nineteenth century, Congress had U.S.
Marshals conduct the Census. The first Census statute required U.S.
Marshals to take a specific oath, swearing (or affirming) that �I will
well and truly cause to be made, a just and perfect enumeration and
description of all persons resident within my district.� Beginning
with the 1880 census, Congress started to shift control of the Census
to �professionals,� i.e., statisticians.
In 1929, the House of Representatives transferred to the Census Bureau
the power to make the calculations for reapportioning congressional
districts. The 1940 Census was the first use of sampling.. Over the
years, Congress and the Census Bureau have added inquiries that have
little or nothing to do with its constitutional purpose, and the
number of sampled questions continues to grow.
For 2010, the Census Bureau has dropped the �long form� questionnaire
sent to a sampling of the population because it has introduced a new,
expanded questionnaire, the �American Community Survey� (ACS), which
on a continuing basis seeks a wealth of information from a random
sampling of recipients, but is not calculated to produce an accurate
count of permanent residents in the United States. It is thus quite
apparent that the Census Bureau continues to spend unprecedented
amounts of money to get more and more accurate data, but remains
indifferent to the information most relevant to the constitutional
purpose of ensuring representative government.
4. DILUTION BY THE CENSUS
By including in the Census count persons who are present in the United
States, but not here permanently nor intending to stay, and without
regard to whether they may or may not be here legally, the Census
Bureau is undermining the equal representation requirement in the
Constitution. The Supreme Court has held that a State�s congressional
districts must be drawn in a way that as nearly as practicable gives
equal weight to each voter. As stated in Westberry v. Sanders, 376
U.S. 1, 14 (1964), �The House of Representatives, the Convention
agreed, was to represent the people as individuals and on a basis of
complete equality for each voter.�
By awarding extra House seats to some States, based on the inclusion
of foreign-born persons temporarily present within a State at the time
of the count, the Census Bureau is unfairly enlarging the
representation of that State�s residents, while diluting all other
States' representation. This violates the time-honored principle of
apportioning representation among the several States in the House of
Representatives in a manner that ensures the �equal weight of each
voter.� In Westberry, the State violated the equal vote principle for
representation as to voters in districts that had more citizens/voters
than other House districts in the same State. Westberry simply assumes
that the apportionment of representatives among the States has been
faithful to the equal vote principle. The Census Bureau, however, is
mal-apportioning representatives from State to State, just as in the
past some States had done from one congressional district to another
within a State.
Including in the Census count foreign-born persons present in the
United States, but not citizens nor permanent residents, for purposes
of determining representation in the House of Representatives and
votes in the Electoral College devalues representative government by
�We the People of the United States� as prescribed by the Fourteenth
Amendment of the Constitution. Whatever data or information the Census
Bureau may wish to collect concerning the population of the United
States, it should not be permitted to disregard the Constitution and
flaunt this country�s immigration and naturalization laws when it
comes to counting American inhabitants to ensure representative
government by our elected representatives.
John S. Baker, Jr. teaches constitutional law at Louisiana State
University; Elliott Stonecipher is a Louisiana pollster and
demographic analyst.
Copyright 2009.
* * *
Here's a brief e-mail exchange that I had with Prof. Baker about this
(before he sent me the full draft version), which he also allowed me
to blog. From me:
John: I read this op-ed with interest, but I wonder how your
proposal would be squared with the text of the Fourteenth
Amendment, and, before that, article I, section 4. Don�t they
expressly call for apportionment by �counting the whole number of
persons in each State, excluding Indians not taxed,� rather than
just by counting citizens or voters? Also, I take it that the
Wesberry quote is imprecise (likely because it arose in a case
where by-voter vs. by-citizen vs. by-inhabitant apportionment
wasn�t at issue). As I understand it, the Framers were specifically
anticipating that states would have very different voting
qualification rules, so that two equally populated states might
have very different numbers of voters � many in a state such as
Vermont, that had universal suffrage for white male citizens over
21, and fewer in a state such as Rhode Island, that had quite
restrictive property qualifications. [Note: I have since changed my
argument to exclude Vermont, just to stick with the original 13
states, though Vermont's admission was very much on the horizon in
1789, and Vermont already had universal white male adult citizen
suffrage by then. -EV] Yet they expected that representatives would
not be allotted by the number of voters, but by �the whole number
of free persons� (setting aside the 3/5 compromise for slaves, and
Indians). Or am I missing something?
Prof. Baker:
All the points you have raised were addressed in earlier versions.
The pre-submission version were 3600 words. The submitted version
was 1700 words. We were told to cut it 1300 words. After numerous
edits, the WSJ published about 800 words. Most of what they cut was
legal argument. What they cared about most was hitting the general
public, which meant that the possibility of California losing 8
House seats became very important. On that, they were correct.
That's what has gotten the attention in our radio talk show
interviews. Brad Reynolds and I hope to lay out the whole case in a
lawsuit, if we are able to get a governor to agree to be the
plaintiff.
I will be speaking to Federalist Society chapters on this topic
during the coming academic year and possibly at the National
Convention.
Me:
John: Thanks very much, and sorry that things were so much cut. But
I�m still not sure how the recommendation is consistent with the
Fourteenth Amendment (and the part of article I, section 2 on which
that�s based). Given that those provisions speak of �the whole
number of persons in each State, excluding Indians not taxed,�
wouldn�t that necessary include noncitizens?
Prof. Baker:
Your point will certainly be raised by the Census Bureau in the
event we sue the agency. We will counter with the following. The
first part of section 2 of the Fourteenth Amendment, except for
direct taxes, basically tracks the original language regarding
apportionment, as quoted below. The Census is the means by which to
determine apportionment, "according to their respective numbers,"
as provided in both. The Census legislation from the First Congress
for the 1790 Census provides for a count of "inhabitants" as a
basis for determining "their respective numbers." By beginning with
this same language, we argue, the Fourteenth Amendment should be
read to have changed only to the extent of counting former slaves
as whole persons as well as recognizing that there are no longer
"persons bound to service for a term of years." The language still
means that apportionment should include only persons who qualify as
"inhabitants," as defined in the OED and based on a Congressional
precedent regarding the definition of "inhabitant." Under your
reading, the Census should count and use in the numbers for
apportionment every tourist legally in the country. While one
former Census official gave me information that suggested the
Census Bureau may in fact be counting legal tourists, such a
practice is difficult to defend. The stronger argument for the
Census Bureau would be that it should not count legal tourists
because they are not "inhabitants," and should count illegals who
intend to stay here. The Bureau would use other dictionary
defitions for "inhabitant" which ignore the legality of their
presence and focus exclusively on residency.
There were no limitations on immigration until after adoption of
the Fourteenth Amendment. Virtually everyone here was here legally,
including slaves. But few thoughtful people would argue that
tourists legally in the country during a census, before or after
the Fourteenth Amendment, should be counted for purposes of
apportionment. Apportionment based on population identifies those
who are to be represented in the House of Representatives. Neither
legal toursists, nor illegal aliens, should be represented in the
House. To argue that they should be undermines the focus of the
Fourteenth Amendment on citizenship. If one gets the benefit of one
of the most important rights of citizenship, representation in the
Congress, citizenship has been to that extent degraded. I say this
as one who favors increased legal immigration leading to eventual
citizenship.
There is no guarantee that in a suit against the Census Bureau that
we would ultimately prevail. I would expect sharp divisions of
opinion and a close vote, if it gets to the Supreme Court. We think
it is an important question which has not seriously been
considered, despite the extremely significant consequesnces that
follow from a decision one way or the other.
Me:
I guess I�m still moved by the text of the Fourteenth Amendment and
article I, section 2; and to the extent the original Census
mentioned �inhabitants,� and that�s taken as an authoritative
interpretation of �the whole Number of free Persons� and the
state�s �Numbers,� it seems to me that inhabitants means everyone
living in the state. Perhaps it may reasonably be read as excluding
tourists, but it seems to me that it would include both the legal
non-permanent-resident aliens (such as students who may live in the
state for years) and the actually permanently resident illegal
aliens. I recognize that illegal aliens weren�t a relevant category
then, but it seems to me that the words used � whether �the whole
Number of free Persons� or �inhabitants� � do on their face include
such aliens.
What�s more, the point about the focus of the Fourteenth Amendment
on citizenship seems to me to be inconsistent with your [view] that
the count should include noncitizen permanent residents. And beyond
that, it seems to me hard to see how the Fourteenth Amendment
should be read as being limited to citizens, given that the
preceding and following sentences expressly use �citizens� when
citizens is meant � why then would �the whole number of persons in
each State� be read as limited to �citizens�?
In any event, though, I wish some of these points remained in the
op-ed, though I realize that the word limits can be brutal, and can
require that a lot of meat be cut.
Prof. Baker:
I am attaching the original article as submitted so that you can
see that we explained from the start that legal, permanent
residents are rightly covered by the Census....
Note the focus on "We the People of the United States." While the
states set the qualifications for voting, the Constitution not only
set the qualifications for members of the House, but identified who
were being represented. Part of the point of referring to slaves as
persons (although counted as three-fifths of one) rather than as
property --as some northerners argued in order to exclude them from
apportionment-- was that they were being included within "We the
People of the United States."
The census enumeration as the basis for apportionment (as opposed
to other information gathered by the Census Bureau, including
information about illegal aliens) determines who is entitled to be
represented. The counting of slaves and women, in the past, and
children and legal permanent residents, still, relates to their
being virtually represented. While the notion of virtual
representation has long been rejected as to former slaves and women
by constitutional amendments and may seem a strange concept to
modern-day Americans, it clearly still applies to children and --we
would say-- to legal permanent residents, as well as to prisoners
and felons denied the right to vote. From the beginning, persons
here on a legal, permanent basis have been thought to be
represented because they are among the "People of the United
States." Clearly, tourists and illegal aliens are not.
([8]Hide most of the abive.)
References
1.
http://online.wsj.com/article/SB20001424052970204908604574332950796281832.html
2.
http://topics.wsj.com/article/SB20001424052970203863204574346651568309212.html
3. http://www.usconstitution.net/const.html#A1Sec2
4.
http://books.google.com/books?id=InEDAAAAQAAJ&pg=RA1-PA415&dq=%22wisely+determined+to+insert%22+intitle:%22Cases+of+contested+elections+in+Congress%22&lr=&num=100&as_brr=0#v=onepage&q=%22wisely%20determined%20to%20insert%22%20intitle%3A%22Cases%20of%20contested%20elections%20in%20Congress%22&f=false
5. http://www.usconstitution.net/const.html#A1Sec2
6. http://www.census.gov/prod/2001pubs/c2kbr01-12.pdf
7. file://localhost/var/www/powerblogs/volokh/posts/1250274418.html
8. file://localhost/var/www/powerblogs/volokh/posts/1250274418.html
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