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Accounting for the Census Clause

In a recent Wall Street Journal opinion piece, a pollster and constitutional law professor claim that counting undocumented persons in the census is unconstitutional. This argument misreads the constitution and ignores the good reasons behind the policy.

August 11, 2009

In the inac­cur­ately titled opin­ion piece (“Our Uncon­sti­tu­tional Census”) published on August 9 in the Wall Street Journal, Messrs. Baker and Stone­cipher, a consti­tu­tional law professor and poll­ster respect­ively, falsely claim that the current prac­tice of count­ing undoc­u­mented persons in the census for the purpose of appor­tion­ment is uncon­sti­tu­tional.  

The “Census clause” or some­times called the “Enumer­a­tion clause” is found in Article I, 1, § 2, cl. 3 of Consti­tu­tion.  After taking into account the removal and addi­tions that have occurred with later amend­ments, that clause reads as follows:  “Repres­ent­at­ives . . . shall be appor­tioned among the several States . . . accord­ing to their respect­ive Numbers . . . . 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.”  Further, Section 2 of the Four­teenth Amend­ment states that “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.”   

The Consti­tu­tion uses the word “numbers” or “persons”—not “citizens,” or “legal resid­ents,” or “those lawfully present” as the authors suggest.  Moreover, the Consti­tu­tion wholly and expli­citly empowers Congress to sort out the details.  The express deleg­a­tion of the respons­ib­il­ity to Congress makes it odd that part of their opin­ion piece casts Congress fulfilling its consti­tu­tional oblig­a­tions to make the policy determ­in­a­tions guid­ing the census as a bad thing.   

In a move that is sure to irk “strict construc­tion­ists” the authors ignore the plain text of the Consti­tu­tion and cite enabling legis­la­tion for support, arguing that the name of first census act used the word “inhab­it­ant” and that the contem­por­an­eous defin­i­tion of that word were persons entitled to the priv­ileges conferred by the state, which would exclude unlaw­ful resid­ents.  The word “inhab­it­ant,” is not used in the Consti­tu­tion’s Census clause, but is instead used when describ­ing qual­i­fic­a­tions of Repres­ent­at­ives and Senat­ors.  In the Qual­i­fic­a­tion clauses, the word “inhab­it­ant” prob­ably fairly means what the authors say it means.  But, it is improper for the authors to import a word from other sections of the Consti­tu­tion into a clause where the framers delib­er­ate and purposely omit­ted that word and claim that the word is controlling. 

Even if Congres­sional under­stand­ing of the Consti­tu­tion trumps its plain text, the first census act actu­ally suggests reach­ing a contrary conclu­sion because that act coun­ted slaves and non-white free persons.  It required the district marshals to swear or affirm an oath that they would under­take a “just and perfect enumer­a­tion and descrip­tion of all persons resid­ent within my district.”  Those facts mean that Congress at least had a more expans­ive view of “inhab­it­ants” than the authors would allow, and as the Consti­tu­tion indic­ates, Congress gets to make the call as to the details. 

The authors invoke the Wesberry v. Sanders prin­ciple that there should be rough equi­val­ents of voting citizens in state legis­lat­ive districts.  Justice Rehnquist, however, in an opin­ion in the mid-90s rejec­ted the applic­a­tion of the Wesberry prin­ciple to Congress when conduct­ing the census.  He also noted that the Court had reached the same conclu­sion on two prior occa­sions because of the latit­ude given to Congress under the Consti­tu­tion and because the districts at issue in Wesberry were intra-state, but federal appor­tion­ment required inter­state review which could not be done with the same preci­sion.  Even the Supreme Court disagrees with the authors.   

There are good policy reas­ons for includ­ing all resid­ents in a state when conduct­ing appor­tion­ment.  A district’s repres­ent­a­tion affects every­one in the district; moreover a district’s repres­ent­a­tion is impacted by every­one in the district.   

The authors may disagree that appor­tion­ments should be influ­enced by enumer­a­tions of undoc­u­mented persons, but it is false that the current prac­tice of doing so is uncon­sti­tu­tional.