"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.