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"Our Unconstitutional Census":

How many representatives should each state have? The answer currently turns on total state population. But a 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 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 (see here for an example of its being interpreted this way); 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 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 an 1824 House of Representatives contested election decision that was interpreting the 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 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.

Dilan Esper (mail) (www):
Nice takedown. I can't figure out whether the authors are driven to this position because they are outraged about illegal immigration or simply want to head off demographic changes that will give more power in the House of Representatives to Democratic-leaning states, but either way, this is something that the Constitution is pretty damned clear about.
8.14.2009 2:46pm
rick.felt:
I can't figure out whether the authors are driven to this position because they are outraged about illegal immigration or simply want to head off demographic changes that will give more power in the House of Representatives to Democratic-leaning states, but either way, this is something that the Constitution is pretty damned clear about.

Right, because those are the only two possible reasons for wanting to count only legal residents for purposes of representation.
8.14.2009 2:51pm
conlaw2 (mail):
Rick the sarcasm is apparent, but you don't get a lot of op-eds that so clearly grasp at straws, without some sort of agenda. Otherwise why do it?
8.14.2009 3:08pm
Phatty:
If you take this theory (that the Constitution allows apportionment to include illegal aliens) to its extreme, you can see how could it could violate the spirit of equitable apportionment that the framers were shooting for.

Imagine that a rancher owns several thousand acres of land in Arizona near the Mexican border. Just prior to the census, a large stream of Mexicans poor across the border and set up camp on his land. By the time of the census, there are 500,000 illegal aliens camped out on his land. The census results in a new congressional district composed solely of the rancher's land. However, the total number of registered voters in that district is one. Thus, the rancher would single-handedly get to choose a representative, making his vote about 500,000 times stronger than any other citizen.

Now that there are no heightened voter standards from one state to another, the procedure of apportionment that would most closely match the framer's intent would be to only count each person eligible to vote in each state. That would ensure vote equality throughout the country. Having said that, I agree that the letter of the Constitution requires counting everyone physically present.
8.14.2009 3:09pm
jim (mail):
Why wouldn't this portion of the 14th Amendment "except for participation in rebellion, or other crime" pertain to those people who emigrate to the US illegally. Oh, forgot, they're "undocumented" not "illegal".
8.14.2009 3:09pm
24AheadDotCom (mail) (www):
For the practical side of things, the libertarians at this site should read this.

Note that the group she works for is closely linked to the BHO admin. Also note that libertarians and those in their orbit are in effect giving her group more power and making it even less likely that their ideas would take hold. From the practical side of things, anyone who doesn't want to give the Dems a great deal of power should be working to reduce the numbers of illegal aliens and immigration in general. Instead, those in the liberatarian orbit - such as FreedomWorks - promote increases with some of them even promoting open borders. In case anyone wants to actually do something about all this, go to a townhall and ask a question like the one here. And, take a close look at those leaders who are only concentrating on fiscal matters rather than things that are far more important.
8.14.2009 3:17pm
PatHMV (mail) (www):
jim, that section allows such individuals to be prevented from voting. Nobody here is claiming that illegal aliens should vote. But they're still counted in the census, just as are felons in prison, minors, and legal aliens.
8.14.2009 3:17pm
Eugene Volokh (www):
Jim: You need to read the whole sentence (emphasis added):
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.


This means that (1) a state may lose some of its representation in Congress to the extent it denies people the vote, but (2) it doesn't lose that representation to the extent that it denies the vote to people based on their crimes or their not being citizens. A state doesn't lose representation in proportion to the number of criminals, or noncitizens, among its residents. Rather, it is not denied representation because of its decision not to let criminals or noncitizens vote.
8.14.2009 3:18pm
Baelln1:

...the major problem/scandal is not how to 'count' people in the states -- but the fact that the number of House of Representatives members (435) does NOT change... no matter what the population "count".

The 1st U.S. House of Representatives had 65 members for about 4 Million Americans (~ 1 representative per 6,000 persons). Today's House has 435 members for 300 Million Americans (~ 1 per 690,000 persons).

The original U.S. Constitution demanded that a Congressional Representative 'represent' no more than 30,000 persons

The political power of an individual Representative has increased a hundredfold since the 1st Congress in 1789 -- by artificially restricting the total number of Congressmen. Congress could easily increase its official membership to better represent its 'constituents' -- but politicians never willingly diminish their power.
8.14.2009 3:20pm
Gabriel McCall (mail):
Leaving aside the question of who is to be counted, what's the constitutional basis for putting questions about race, religion, employment, etc. on the census form and criminalizing a refusal to respond?
8.14.2009 3:20pm
PatHMV (mail) (www):
Eugene, side question, do any states allow legal aliens to vote? I guess I always assumed that because Congress has the naturalization power, states could not authorize non-citizens to vote. But the section you quote seems to make it clear that the 14th Amendment at least contemplated that states have the discretion to extend or deny suffrage to non-citizens.
8.14.2009 3:22pm
Oren:

Right, because those are the only two possible reasons for wanting to count only legal residents for purposes of representation.

There are in fact very many good reasons to propose doing so on policy grounds. Arguing that the Constitution requires, or even permits, such a thing is wholly another.


Imagine that a rancher owns several thousand acres of land in Arizona near the Mexican border. Just prior to the census, a large stream of Mexicans poor across the border and set up camp on his land.

They quite clearly don't reside there. I live in suburban Boston -- if I happen to be camping in VT when the census "happens", do I get counted in VT?

(Scare quotes because the census is a rather long and drawn out process that doesn't really occupy a particular point in time.)
8.14.2009 3:22pm
some dude:
Since corporations and such are defined as "persons" through legal mumbo-jumbo, should they be counted, too?
8.14.2009 3:23pm
PatHMV (mail) (www):
Gabriel, the relevant language of the Constitution says:

The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.


"In such manner as [Congress] shall by law direct" means that Congress gets to decide what questions are asked on the census. As Congressional powers go, it's a pretty clearly expressed power.
8.14.2009 3:25pm
Oren:

Leaving aside the question of who is to be counted, what's the constitutional basis for putting questions about race, religion, employment, etc. on the census form and criminalizing a refusal to respond?

None, since the power to conduct a census is explicitly authorized to the Congress. Do you have a particular complaint or is just a general "dern gubmint done made me fill out dis forrem"?
8.14.2009 3:25pm
PatHMV (mail) (www):
some dude: The Supreme Court has generally held that a corporation is not a "person" as that term is used in the Constitution.
8.14.2009 3:28pm
Eugene Volokh (www):
Baellin1: I think you have the constitutional text backward: It's that "The number of Representatives shall not exceed one for every thirty Thousand," which is to say that a Representative must represent no less than 30,000 persons (with the except that "each State shall have at Least one Representative"). Also, your division seems off: 4 million divided by 65 is about 60,000, not 6,000.

As to what the proportion should be, any thoughts on the practical effects of having a House of Representatives that consists of, say, 5000 members (if we stick with the 60,000 ratio)?
8.14.2009 3:28pm
FmrADA (mail):
Question: How does this discussion intersect with the (non-constitutional) axiom about taxation without representation? Illegal aliens probably do not pay income tax, but the fruts of their labor unquestionably result in federal tax income. As individuals living within a state and contributing both to state income (sales tax, e.g.) and to federal tax, what is the argument for excluding them from numerical representation?

It seems to me that the "three-fifths" compromise is a precedent for counting non-voting, non-citizen residents. The slaves were considered chattel in slave-owning states, but those states successfully lobbied to include them in the count of residents -- albeit for selfish political purposes. The compromise to treat slaves as 3/5 persons does not change the inference that the founding generation was comfortable including persons who both contributed to the economic base and consumed state/federal services.

The House of Representatives was intended to be the "big state" side of Congress, balanced by the "small state" Senate. Given that illegal aliens consume actual services and enjoy actual rights, why not count them toward the "big states'" voting power on the side of Congress intended to reflect those concerns?
8.14.2009 3:30pm
Phatty:

They quite clearly don't reside there. I live in suburban Boston -- if I happen to be camping in VT when the census "happens", do I get counted in VT?

I didn't want to bog down my hypothetical with facts. Suffice it to say that by "camp" I didn't mean a temporary, one night camping trip with a tent, sleeping bag and can of beans. Assume that the aliens had every intent to reside on the rancher's land and make up whatever facts you need to in order to make the story more plausible in your own mind.
8.14.2009 3:30pm
Andy Rozell (mail):
"Imagine that a rancher owns several thousand acres of land in Arizona near the Mexican border. Just prior to the census, a large stream of Mexicans poor across the border and set up camp on his land. By the time of the census, there are 500,000 illegal aliens camped out on his land. The census results in a new congressional district composed solely of the rancher's land. However, the total number of registered voters in that district is one. Thus, the rancher would single-handedly get to choose a representative, making his vote about 500,000 times stronger than any other citizen."

They'd be dead of thirst long before the census-taker ever got to them.
8.14.2009 3:31pm
PatHMV (mail) (www):
Oren, here is the Census Bureau web site which discusses how to count folks who are travelling on Census day. Short answer is, if you have a "usual residence" somewhere in the country, you are counted there, even if temporarily away. But if you don't have a "usual residence," or have more than one, you are pretty much counted where you are at the moment.

So I think those 500,000 illegal aliens on the ranch would need to be counted there.
8.14.2009 3:33pm
rick.felt:
Right, because those are the only two possible reasons for wanting to count only legal residents for purposes of representation.There are in fact very many good reasons to propose doing so on policy grounds. Arguing that the Constitution requires, or even permits, such a thing is wholly another.
Reading is... what's the word I'm looking for here? Oh yeah, "fundamental."

I was pointing out that Dilan Esper's assertion that there could only be two reasons that Baker wrote this op-ed was absurd. I was not saying that Baker was correct as a matter of Constitutional interpretation.
8.14.2009 3:34pm
SuperSkeptic (mail):
thoughts on the practical effects of having a House of Representatives that consists of, say, 5000 members

...the bills would be 11,490 pages long...
8.14.2009 3:38pm
Duffy Pratt (mail):
PatHMV:

The S.Ct. has made no such "general" holding about whether corporations are persons. Nor is the S.Ct. in the business of making "general" holdings at all. They have held that corporations are persons within the meaning of the due process clause of the Fourteenth Amendment. And I'm pretty sure there are holdings one way or the other with respect to other clauses and other issues.

Whether a corporation is a person within the meaning of the Census clause has probably never come up to the Supreme Court, possible because the idea is a bit silly.
8.14.2009 3:40pm
Dilan Esper (mail) (www):
I was pointing out that Dilan Esper's assertion that there could only be two reasons that Baker wrote this op-ed was absurd. I was not saying that Baker was correct as a matter of Constitutional interpretation.

Rick, when someone authors an op-ed that makes a completely fatuous argument, on a page that is basically an arm the conservative movement and frequently publishes pieces that are intended to further the goals of the Republican Party, it's pefectly natural to ask what the motive here is.

And I suspect that some combination of the two motives I mention is exactly why this op-ed was written and published.
8.14.2009 3:41pm
Phatty:

thoughts on the practical effects of having a House of Representatives that consists of, say, 5000 members

...the bills would be 11,490 pages long...

And you'd have to dish out a tremendous amount of pork to ever get a bill passed.
8.14.2009 3:42pm
Oren:

As to what the proportion should be, any thoughts on the practical effects of having a House of Representatives that consists of, say, 5000 members (if we stick with the 60,000 ratio)?

It would slightly increase the representation of the larger states, since the least populous ones (WY) currently don't even have enough people to merit a single seat (of course, we round up the first one -- I'm not arguing that we shouldn't).


I was pointing out that Dilan Esper's assertion that there could only be two reasons that Baker wrote this op-ed was absurd. I was not saying that Baker was correct as a matter of Constitutional interpretation.

The main focus of the article (the title, in fact) is not about the policy grounds -- it's about constitutional grounds. Dilan wonders what motivation one could have to seriously mangle the Constitution in order to assert that it requires your preferred policy result?
8.14.2009 3:43pm
Houston Lawyer:
Coming from a state with millions of illegal aliens, I certainly hope they count. We are obligated by federal law to provide the same government services to the illegal aliens that we provide to citizens.

Lets just hope that for the next census we have an enumerated count, not just an estimate set forth by administrative fiat.
8.14.2009 3:43pm
Oren:

Oren, here is the Census Bureau web site which discusses how to count folks who are travelling on Census day. Short answer is, if you have a "usual residence" somewhere in the country, you are counted there, even if temporarily away. But if you don't have a "usual residence," or have more than one, you are pretty much counted where you are at the moment.

Huh. Thanks for the link/clarification.
8.14.2009 3:44pm
conlaw2 (mail):
Rick you weren't pointing out anything, you stood behind your sarcasm and said nothing. Now you've pointed something out.
8.14.2009 3:54pm
Arturito:
How can I become one of these "Indians not taxed"? I'd happily give up the right to be counted in exchange.
8.14.2009 3:57pm
D.O.:
If we count illegal residents and legal non-citizens separately, we would need the Census Bureau representative to assess legality. Do we really want that? Is it legal itself (after all it may require a court order to deport someone)? If only citizens+permanent residents to be counted than folks need to keep the paperwork on hand when the counter comes, and if someone does not than what?
8.14.2009 3:59pm
CJColucci:
Does anyone know what the big deal was about "Indians not taxed"? Are there still "Indians not taxed" for reasons other than that they don't earn enough to owe taxes?
8.14.2009 4:06pm
SuperSkeptic (mail):
Baker and Stonecipher should have just made an originalist argument by analogy that "Indians not taxed" means that all those who are "not taxed" should not be counted. I'm sure they could have dug up the statistic that states that roughly 50% of people do not pay federal income taxes. It would have better served their partison purposes , in fact, with only marginally less plausibility.
8.14.2009 4:10pm
Lior:
Houston Lawyer: Why do you prefer an enumerated count to a more accurate polling method? After all, the goal is to have the most accurate census, not a population register.

That aside, I think the main confusion is from the counting method. As far as I can tell, the constitutional formula is the following: let N be the total number of persons living in the state (including citizens and aliens, legal or not, but not including certain Indians). Let V be the total number of male citizens over 21 who are eligible to vote, and let I be the number of male citizens over 21 who are ineligible to vote but not due to having committed crimes. Let f = V/(V+I) be the proportion of eligible voters, criminal excepted. Then the population of the state for representation purposes is fN.

In other words, states may give or deny anyone the right to vote for many reasons, but if a state denies any citizen over 21 the right to vote for reasons other than criminality, then they lose representation in the House, in proportion to the extent of the denial of the right to vote.
8.14.2009 4:21pm
rick.felt:
Rick, when someone authors an op-ed that makes a completely fatuous argument, on a page that is basically an arm the conservative movement and frequently publishes pieces that are intended to further the goals of the Republican Party, it's pefectly natural to ask what the motive here is.

Right, because if there's one publication on the right that can be considered to be reliably anti-immigration, it's the Wall Street Journal editorial page.

Where's Sarcastro when we need him
8.14.2009 5:03pm
Curious:
Was "Indians not taxed" defined anywhere? Were there Indians who were taxed? Are today's Native Americans not taxed still excluded from the actual count? Or was the intent of the language to indicate that those people who couldn't be citizens of the United States and weren't taxed wouldn't be included? If I am a lineal descendant of Mayans who is in this country illegally and not taxed, am I counted? What if I'm half-Mayan and half-Cherokee and an illegal immigrant who is not taxed?
8.14.2009 5:16pm
Houston Lawyer:
Lior

I'd go with statistics, if I get to determine the parameters. However, the Constitution requires enumeration.
8.14.2009 5:28pm
Dilan Esper (mail) (www):
Right, because if there's one publication on the right that can be considered to be reliably anti-immigration, it's the Wall Street Journal editorial page.

Rick, you are confusing the editorial page and the op-ed section. The editorial page is hyper-libertarian. But the op-ed page is an outlet for the advancement of the Republican Party / movement conservativism.
8.14.2009 5:44pm
Gabriel McCall (mail):
Gabriel: Leaving aside the question of who is to be counted, what's the constitutional basis for putting questions about race, religion, employment, etc. on the census form and criminalizing a refusal to respond?


The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.


PatHMV: "In such manner as [Congress] shall by law direct" means that Congress gets to decide what questions are asked on the census. As Congressional powers go, it's a pretty clearly expressed power.

Oren: None, since the power to conduct a census is explicitly authorized to the Congress. Do you have a particular complaint or is just a general "dern gubmint done made me fill out dis forrem"?


Congress is explicitly authorized to enumerate the population, for the purposes of apportioning representatives. Authorizing Congress to count heads does not authorize them to ask additional questions incident to the enumeration. Any questions that go beyond "how many people live here?" exceed the scope of the text as written; an enumeration is not a financial or sociological survey.

Pat, by your argument, Congress could constitutionally direct census employees to come into your house, inventory your guns, take DNA samples, and tattoo you with a national ID number. I would argue that that goes beyond the scope of an enumeration. Similarly, I would argue that ethnographic questions go beyond the scope of an enumeration, except as necessary to identify Indians not taxed.
8.14.2009 5:59pm
egd:

Rick, you are confusing the editorial page and the op-ed section. The editorial page is hyper-libertarian. But the op-ed page is an outlet for the advancement of the Republican Party / movement conservativism.

This whole thing would be easier if the WSJ just took on the mantle of the NYT and started making every page political propaganda (obituaries occasionally excluded). Then they could hire "reporters" to make up stories and ignore basic facts.
8.14.2009 6:07pm
Tom B (www):
Prof. Volokh said that he does not think that the authors are right - he did not say that their argument lacks all merit.

As a policy matter, it does not seem unreasonable to only want the census to count persons legally here. I haven't thought about enough to have a strong opinion on it, but it does not seem like raw partisanship.
8.14.2009 6:15pm
Owen H. (mail):
If it says, "persons", how does that justify not counting illegals? They are "persons", aren't they? Or are than "unpersons"?
8.14.2009 6:21pm
Dilan Esper (mail) (www):
<i>Congress is explicitly authorized to enumerate the population, for the purposes of apportioning representatives. Authorizing Congress to count heads does not authorize them to ask additional questions incident to the enumeration. Any questions that go beyond "how many people live here?" exceed the scope of the text as written; an enumeration is not a financial or sociological survey.<i>

Gabriel, I am not saying this is what they are doing, but are you saying it would be unconstitutional to include other questions in the census survey even for the purpose of verifying the results (in other words, to ensure that the head count isn't grossly off by looking for things such as a high concentration of Amish in South Central L.A.)?

It seems to me that the point of giving Congress authority to determine how the enumeration is conducted is to allow Congress to do whatever it thinks is necessary to ensure that an accurate enumeration takes place, and that a power to ask additional questions is quite fairly implied in that.
8.14.2009 6:36pm
Alexia:
The Constitution should be changed. Only citizens should be entitled to representation.
8.14.2009 6:48pm
PatHMV (mail) (www):
Tom B.... that Prof. Volokh was polite in his disagreement does not mean that he found any merit to the argument at all. Is there somewhere in his post or letter to the editor where he says "they make a reasonable argument, but..."? In fact, not once does Prof. Baker even attempt to explain how, as a matter of the plain language of the text of the Constitution itself (not acts of Congress), the word "Persons" can mean anything other than "human beings." Prof. Baker, for policy reasons alone, seeks to restrict the word "persons" to mean "all human beings except for illegal aliens." There is precisely zero textual support for that argument. None. Prof. Baker is, generally, a "conservative" legal thinker. He advocates, quite strongly, for textual and originalist interpretations of the Constitution. The only basis for reaching this result is the desired policy outcome.

Alexia has it right. If you don't like the policy, amend the Constitution.
8.14.2009 6:58pm
Oren:

Authorizing Congress to count heads does not authorize them to ask additional questions incident to the enumeration. Any questions that go beyond "how many people live here?" exceed the scope of the text as written; an enumeration is not a financial or sociological survey.

To "enumerate" means not only to "count to the total" but rather means something close to "count and name each individual". For instance, the Constitution does not simply enumerate the powers granted to Congress by listing the total number of such powers, but rather goes through one by one and lists them.

As to the other parade of horribles, those things are clearly forbidden by the fourth amendment and so cannot be a valid exercise of congressional power in any case.
8.14.2009 8:11pm
JK:

Arturito:
How can I become one of these "Indians not taxed"? I'd happily give up the right to be counted in exchange.

easy:
1. We kill off almost all your family and friends (no picking and choosing!)
2. We take all your property and relocate you to whatever shitty mound of dirt we choose
3. We outlaw any of your religious practices that we find distasteful
4. Expose you to a variety of deadly diseases

Then you just wait about 200 or so years while the paper work goes through and your great-great-...-grandchildren won't have to pay any income tax!
8.14.2009 8:12pm
some dude:

PatHMV:

The S.Ct. has made no such "general" holding about whether corporations are persons. Nor is the S.Ct. in the business of making "general" holdings at all. They have held that corporations are persons within the meaning of the due process clause of the Fourteenth Amendment. And I'm pretty sure there are holdings one way or the other with respect to other clauses and other issues.

Whether a corporation is a person within the meaning of the Census clause has probably never come up to the Supreme Court, possible because the idea is a bit silly.


The idea of counting a corporation as a person in the due process clause is also a bit silly, IMHO.
8.14.2009 8:13pm
anomdebus (mail):
Just a general question, not intending to be leading:

How can there be a textual interpretation of something that was not considered? (note I am not saying it was not considered, though our host does not apparently know of it)
8.14.2009 8:25pm
Dilan Esper (mail) (www):
How can there be a textual interpretation of something that was not considered? (note I am not saying it was not considered, though our host does not apparently know of it)

You have actually run into one of the real debates about statutory construction in academia (not like the fake "conservatives apply the law as written" stuff you hear on talk radio). There are great arguments back and forth about whether a general textual rule should be applied to circumstances not anticipated by the framers.
8.14.2009 9:43pm
Duffy Pratt (mail):
Some dude:

So you think, when a foreign corporation gets sued in a state court, the court should be able to just enter judgment against it without giving it notice or a hearing? Or that a state should just be able to seize all of a corporations property, and leave the corporation with no recourse whatsoever?

As for "Indians not taxed": whatever it means, it likely had nothing to do with the income tax, unless the framers were as prescient about the income tax amendment as they were about Equal Protection when they incorporated it into the due process clause of the fifth amendment.
8.14.2009 9:46pm
Tom B (www):
Maybe I am interpreting him wrong, but it seems that Prof. V is objecting to their claim of "outrageous" unconstitutionality and not necessarily to the argument itself. In other words, their argument is not meritless, but it was certainly reasonable for people to count the aliens. Hmm, or maybe the article is more partisan than I thought.
8.14.2009 10:56pm
A. Zarkov (mail):
Suppose the Mexican army were to invade the US and establish a position in New Mexico around the time of the census. Would we then have to count the soldiers and increase New Mexico's representation?

The idea of counting illegal aliens is beyond stupid, and the founding fathers would have laughed you out of the room at the suggestion of counting them. The "whole number of persons in each state" obviously applies to legal residents-- not illegal aliens, not visitors from outer space, not androids, or even pod people. Let's use some common sense for a change.
8.14.2009 11:37pm
some dude:
Duffy Pratt,

Yes and yes.
8.14.2009 11:44pm
Rich Rostrom (mail):
1) The phrasing of the "enumeration" passage of the Constitution makes no distinction between lawful residents of the United States and others. I wish it did, but it doesn't.

2) "Indians not taxed" was shorthand for Indians who lived
outside the scope of civilized society. The reference is to the "head tax" which the Founders foresaw (but which has never been established). Some Indians, even in 1789, lived in civilized communities, owned property, and, yes, paid taxes and voted in elections.

3) BTW, does anyone agree with me that the passage from the 14th Amendment from

But when the right to vote...

to

the whole number of male citizens twenty-one years of age in such State.

is unquestionably the worst part of the Constitution, inasmuch as it is completely unworkable?

4) Also, ISTM that as phrased, it bars limiting the vote on any basis other than citizenship, crime, age, or gender; that is, it bars poll taxes, literacy tests, advance registration, and residency requirements.
8.15.2009 1:30am
PDXLawyer (mail):
There still are lots of "Indians not taxed" by the states. They are Indians living and working on reservations. However, since they are citizens residing within a state, they can vote in the state.
8.15.2009 3:13am
Leo Marvin (mail):

The census results in a new congressional district composed solely of the rancher's land.

Is that right? Doesn't the legislature draw the district lines? Assuming it does, wouldn't it likely draw the rancher's district to "trade" most of the non-voting aliens for voters from pre-existing districts, leaving no one district with a preponderance of the non-voting aliens?
8.15.2009 8:17am
Policy (mail):
It's ironic that the open borders people don't want the states to enforce the immigration laws, but they are perfectly happy to have these "residents" counted in their favor.

What constitutes a resident? How about tourists?

The author has omitted to mention tourists; at any one time, for example, Florida must have several hundred thousand tourists who reside there for a few days at a time.

How long does one have to reside to be a resident?

How about a three fifths compromise?
8.15.2009 9:43am
Douglas Johnson (mail) (www):
I agree that Baker and Stonecipher get the constitutional question completely wrong.

They also get the apportionment math wrong. They state that California will get 57 Congressional seats in 2011, a gain of 4 seats, when every accurate estimate has California either staying at 53 or losing 1.

More on my blog post on this article.
8.15.2009 12:56pm
geokstr (mail):

Dilan Esper:
...on a page that is basically an arm the conservative movement and frequently publishes pieces that are intended to further the goals of the Republican Party, it's pefectly natural to ask what the motive here is.

Excellent point, Dilan. So I'm quite certain you would be empathetic whenever conservatives question the motivation of authors on all those media that are obviously the arm (and legs and feet and mouths and butts) of the liberal movement, that is, NBC, ABC, CBS, MSNBC, CNN, NPR, PBS, AP, nearly every one of the other major "news"papers, and every "news"magazine in the entire country. Especially since you have never shied away from questioning the principles, character, motivation, morals and ethics of what few sources we have come to rely on.


Andy Rozell:
They'd be dead of thirst long before the census-taker ever got to them.

No way. One call to the president of ACORN, and a quick determination would be made that since this is all illegals, it would help the Democrats. They'd have an army of counters there the next day. Register them to vote too, they would.
8.15.2009 2:00pm
Eli Rabett (www):
Does the 1964 decision not invalidate counting prisoners in apple knocker districts?
8.15.2009 6:20pm
Dilan Esper (mail) (www):
Excellent point, Dilan. So I'm quite certain you would be empathetic whenever conservatives question the motivation of authors on all those media that are obviously the arm (and legs and feet and mouths and butts) of the liberal movement, that is, NBC, ABC, CBS, MSNBC, CNN, NPR, PBS, AP, nearly every one of the other major "news"papers, and every "news"magazine in the entire country. Especially since you have never shied away from questioning the principles, character, motivation, morals and ethics of what few sources we have come to rely on.

Air America is an arm of movement liberalism. So are Keith Olbermann, Rachel Maddow, and Ed Schultz on MSNBC. But the rest of the ones you mention are just news outlets who report negative information about liberals and things that liberals find abominable all the time. (Remember how the media fell over on the job rather than questioning the intelligence in the windup to the Iraq War?)

Look, the same conservative movement that owns the WSJ op-ed page also invests deeply in a narrative that truth seeking, straight-shooting journalistic institutions are "liberal". Of course, when you think about it that's a damning concession, that reality has a liberal bias.
8.15.2009 10:57pm
ReaderY:
The constitution specifically calls for counting "persons", not members of "the people". Thus those in the first class but not the second count.

The fact that slaves (partially) count is illustrative that the census was never intended to be limited to fully participating members of society.

I believe that inmates on death row or serving a life sentence should count only 3/5. Such inmates are not "free Persons", nor are they bound to serving only a "Term of Years." They would seem to fit precisely within the definition of 3/5 counters.


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.
8.16.2009 12:52am
geokstr (mail):

Dilan Esper:
(Remember how the media fell over on the job rather than questioning the intelligence in the windup to the Iraq War?)

That's a wonderfully disingenuous claim made by the left, that somehow the media were pro-Iraq war, and that it proves their ridiculous claim that the MSM are actually shills for the right. Let's face it, right after 9/11, everybody was for the war, and everybody (including the most brilliant female politician who ever lived and Kerry and lots of other leftists, the UN, and British intel) claimed that they knew Sadaam had WMD's, etc and had to be stopped. Those leftists and their lapdogs in the press knew that it would be very unpopular to be against the war at that time. Once the bloom was off that particular war, they gradually all got progessively (pun intended) more anti-war. Where are those daily body counts that were on pretty much every TV news program from 2004 on since Obama was inaugurated? Are there no more US casualties, now that the seas have begun to recede?

Look, the same conservative movement that owns the WSJ op-ed page also invests deeply in a narrative that truth seeking, straight-shooting journalistic institutions are "liberal". Of course, when you think about it that's a damning concession, that reality has a liberal bias
8.16.2009 12:55pm
geokstr (mail):

Dilan Esper:
Look, the same conservative movement that owns the WSJ op-ed page also invests deeply in a narrative that truth seeking, straight-shooting journalistic institutions are "liberal". Of course, when you think about it that's a damning concession, that reality has a liberal bias.

A narrative that has pretty much been proven by a ton of studies on the media, where journalists, reporters, anchors, editors, journalism professors and students, are asked to self-identify their party, their political leanings, who they voted for, who they donated to, and who they supported in elections for the last 50 years. In every one of those studies, they self-identify as Democrats/liberals over 9 to 1, donate to the Dems over 9 to 1, voted for the Dem in every presidential election since Kennedy over 9 to 1, etc ad nauseum.

The left claims that if a scientist ever filled his gas tank with Exxon gasoline, anything skeptical that he says about GW must be considered tainted because he's been bought. But somehow, these 90%+++ of highly skewed left-leaning media members must be totally immune to human nature and are able to totally play it down the middle.

Puh-leeze.

Quick quiz: how often have you heard the terms left-wing extremism, far left, radical left, etc used by these objective media? However, the terms right wing, conservative extremist, far right are used quite liberally on all those media. "Expert" guests are usually exclusively left-leaning and never identified as such, and rarely counterbalanced by opposing voices.

Funny, but that one disingenuous example of the run-up to the Iraq war is pretty much the only example you can point to of any consequence that shows how balanced the media are. Can you give us some others; and only substantive issues where the media (not including Fox) have consistently backed anything identified with conservatism? I eagerly await all of this extensive list.

But I can see why you would believe that. After all, since they all agree with you 90%+++ of the time, how could they possibly be biased?
8.16.2009 1:22pm
Dilan Esper (mail) (www):
Geok:

Media bias studies depend on who does them. It's true that many reporters are liberals-- it's also true that many station owners, publishers, and advertisers are conservative. (You want real bias, find a local newspaper which ever covers cost overruns in a big construction project (like a stadium or a subway).)

But you are totally wrong about the Iraq War. In March 2002, there were huge protest marches against the war all over the country. The organized left was against the war-- Democratic politicians, on the other hand, were not.

The point though is that there were plenty of indications that Bush Administration statements about the state of WMD's as well as the alleged Saddam-Al Qaeda links were false. People like Scott Ritter were screaming about this. But the mainstream media dismissed this stuff and bought it hook line and sinker.

I am not, by the way, using that to claim that the media has a right-wing bias. (You misconstrued this part of my argument.) I am simply saying that media biases are much more complicated than left and right. One big media bias is to curry favor with a seemingly popular President, because if you don't, you lose access-- you no longer get those choice leaks and background conversations that you need to produce daily content for the paper or the evening news. That-- and not any inherent conservativism of the media-- was behind the media's failures in the runup to the Iraq War.

But a real "left-wing" media certainly would have covered all the discrepancies in Bush's claims. Indeed, publications like The Nation (i.e., the actual "left wing" media) did so in 2001 and 2002.
8.16.2009 2:15pm

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