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.
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.
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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.