Citizenship Should Count in Census

Our system of government is, at least technically, that of a republic. In the original Constitution, state legislatures chose Senators, and, even now, an Electoral College technically elects the president. But the House of Representatives was and remains the “people’s chamber” and is supposed to represent the people in a “one man, one vote” fashion.

But which people? And how should that people be counted in the census for purposes of apportioning congressional districts?

The Founders provided for the inhabitants of the United States to be counted every 10 years in the form of a census. This required more than a mere count of living people. Implicit in the Constitution was that the government would be one made up of free people, that is, of citizens. Thus, various classes of people would be counted in the census—free, indentured, Indian, and slaves—but each would be provided different weights for the purpose of apportionment of congressional districts.

The (pre-amendment) constitutional text is straightforward: “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.”

While the “three-fifths compromise” is supposed to scandalize us today, critics forget that the large slave-owning states of the South wanted slaves counted as whole persons for census purposes, whereas the Northern states wanted them treated in the same manner as Indians, with no weight provided to slave populations that would increase Southern representation in Congress. The compromise maintained the union, but diminished the political power of the slave-owning South. The non-counting of Indians and reduced count of slaves—indeed, the failure to even use the word slavery in the Constitution—exemplified the moral foundations of the Constitution, as well as the ethos of its authors: it was fundamentally created as the charter of a free and self-governing people . . . but a people nonetheless.

The Constitution, and every government whether constitutional or not, is preceded by a particular people, a nation, which is the combination of particular persons, defined by their loyalties, bonds, and history, as well as the geography they call home. While our Constitution had legal and philosophical antecedents in the English Bill of Rights, the common law, and the practical experience of self-government in the colonies, the boundaries of the people entitled to that protection had to be defined, just as did much as the new country’s geographic boundaries.

For the early United States, this peoplehood excluded unrepentant Loyalists, who had their property expropriated, after which many fled to Canada or other parts of the British Empire. During and after the Civil War, those who had fought for or served the Confederacy were deprived of the right to vote for an extended time. The constitutional provision quoted above was, in fact, altered by the 14th Amendment, which allowed a reduction in apportionment to reflect the presence of former Confederate soldiers and officials who lost their right to vote.

As now, there were also aliens in the country legally, but they could not vote. How this population affected congressional representation varied by time and place, but generally the districts were supposed to be equal in their “free” population. In a series of decisions in the 1960s, the Supreme Court disallowed legislative districts with uneven populations that were designed to enhance the power of one or another political party or group.

Today, we have a large class of illegal aliens. These are noncitizens with no formal political power and no right to vote, yet these make up a sizeable portion of the population, particularly in certain parts of California, Arizona, New York, and Texas. According to the Census Bureau, “all people (citizens and noncitizens) with a usual residence in the 50 states are to be included in the census and thus in the apportionment counts.”

This practice is not required by any constitutional provision. As the Supreme Court noted in its unanimous 1966 decision of Burns v. Richardson, “[the Court] had never suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime, in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured.”

In other words, who to count for apportionment following the census is a matter for Congress to consider when dealing with special cases, such as aliens, illegal, or otherwise.

The big brouhaha criticizing the 2020’s Census including a question on citizenship—apparently eliminated from the primary “short” form only in 2010—has little to do with high principle, and much to do with political power. Not only apportionment, but federal benefits of various kinds, hinge on the size of a locale’s population, whether it consists of citizens or not. While Hillary Clinton extolled the coasts as dynamic places full of entrepreneurs, New York and California have been losing people, particularly among citizens fleeing for lower crime, lower tax, and lower diversity places in the interior. But each has a large illegal alien population.

The argument for including questions of citizenship on the census—and excluding noncitizens from being included for the apportionment of congressional representation—is fairly straightforward: the current failure to do so increases the political power of places with large numbers of illegal immigrants, by potentially increasing the number of such districts on the margins and also by augmenting the relative power of voters in these districts.

The effect is identical to the asymmetry that would have arisen in the absence of the three-fifths compromise. Including illegal aliens in congressional apportionment confers political benefits on places economically dependent upon large, marginalized, noncitizen populations. As Justice Story noted in his Commentaries on the Constitution, “If they were to be represented as property, the rule should be extended, so as to embrace all other property. It would be a gross inequality to allow representation for slaves to the southern states; for that, in effect, would be, to allow to their masters a predominant right, founded on mere property. Thus, five thousand free persons, in a slave-state, might possess the same power to choose a representative, as thirty thousand free persons in a non-slaveholding state.”

The Founders were no doubt familiar with the practice of the English Parliament, where, at the time, there were numerous “rotten boroughs.” These small “buyable” parliamentary seats, effectively created an anti-democratic roster of offices, which only retained the outward appearance of representation. Today, a large illegal alien population creates a similar problem, allowing an additional seat or two to places like California to be elected by a comparatively small number of eligible voters.

Government of “we the people,” must, first and foremost, restore power to the actual people—the citizens. The United States is not just a land mass, a shopping mall, or a military base. It is a country made up of a people, and the government’s duty is to promote that people’s “union” and “common welfare.”

Adding the citizenship inquiry to the census will enhance our collective knowledge of the extent and expense of the alien population among us. With all the talk of “foreign influence” in the last election, the most dramatic form of foreign influence is the presence of millions of illegal aliens “living in the shadows,” who affect the tone, expense, and efficiency of government at every level where they reside. The only reason they were ignored in the last census was the Obama Administration’s efforts to increase the political power of the most left-leaning portions of the country, while concealing from the country as a whole the extent of illegal aliens in our midst.

This mercenary calculation only enhanced the power of those legislators, bureaucrats, and political parties that have revealed themselves as perfectly content with foreign influence, so long as that influence draws the country further away from its philosophical origins and dilutes the unity of a people rooted chiefly in their status as a nation of free and equal citizens.

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Photo credit:  Drew Angerer/Getty Images

About Christopher Roach

Christopher Roach is an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, The Journal of Property Rights in Transition, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.

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