Republicans are arguing against the Framers’ original intent

By George F. Will,

This nation’s empirical and inquisitive Founders considered information conducive to improvement, which is one reason the Constitution mandates a decennial census. And why James Madison soon proposed expanding the census beyond mere enumeration to recording other data. Today, the census provides an ocean of information indispensable to understanding this complex society. And it determines the disbursement of $1.5 trillion annually from the federal government.

On Nov. 30, the Supreme Court will hear arguments in a census-related case concerning a question of large philosophic interest and practical consequences: Was it constitutional — 22 states, 15 cities and counties and other entities say no — for the president to order the exclusion of unauthorized immigrants from the enumeration of states’ populations used for apportioning congressional seats? Apportionment was the initial reason for the census, and remains its only constitutional function.

The president says: Because the census’s original and fundamental purpose concerns Americans as a political community, it would be incongruous to give congressional representation to illegal immigrants who are subject to removal from the country. Foreign tourists should not be counted, and military personnel stationed abroad should be, because the former are not, and the latter are, members of the political community.

This argument, though interesting for a political philosophy seminar, is insufficient for the Supreme Court, which must construe the two constitutional provisions concerning apportionment. One (in Article I) mandates an “actual Enumeration” of “persons” other than “Indians not taxed.” The second (in the 14th Amendment) says seats in the House of Representatives shall be apportioned among the states counting “the whole number of persons in each state, excluding Indians not taxed.” An amicus brief by two constitutional scholars, Ilya Somin of George Mason University and Sanford Levinson of the University of Texas, demonstrates that neither provision allows the exclusion of unauthorized immigrants.

The Framers understood “persons” broadly, with the sole exception of Indians not taxed because they were considered noncitizens with an allegiance to distinct political communities: their tribes. The Framers would not have expressly excluded Indians not taxed if “persons” excluded foreigners or others with an allegiance to a government other than the U.S. government. So, the Framers clearly meant “persons” to include immigrants.

Most of the Framers, say Somin and Levinson, did not believe the federal government had the power to exclude immigrants — there was no significant federal immigration restriction until 1875 — so they could hardly have intended to exclude from apportionment “illegal” immigrants. Furthermore, the Framers expected that the congressional apportionment count would include the more than half the adult population that was not entitled to vote because of gender, or property requirements.

Members of Congress, Somin and Levinson argue, have always been thought to represent the interests of many persons — in 1790, at most 70 percent of White men, and few others, could vote — “to whom they were not directly accountable at the ballot box.” Today, most states deny the vote to children under age 18, and some felons, yet these groups are counted in congressional apportionment.

The 14th Amendment, which stipulates the enumeration of “the whole number of persons,” elsewhere uses the term “citizens.” So, by “persons” the amendment’s authors denoted a broader category. The Supreme Court has held that in this amendment “persons” refers to the “total population,” including immigrants, “whatever” their “status under the immigration laws.”

The court has repeatedly held that the “person[s]” the Fifth Amendment’s Due Process Clause protects (“No person” shall be “deprived of life, liberty, or property, without due process of law”) includes aliens in the U.S. population. And unlike foreign diplomats or tourists, the United States is the usual residence of unauthorized immigrants.

The 1787 Constitutional Convention’s Committee of Style replaced “inhabitants” with “persons,” so supporters of excluding unauthorized immigrants from the census’s enumeration for apportionment argue, implausibly: The Framers considered the two words synonymous, and that foreigners by definition cannot be inhabitants. But Somin and Levinson say that in its original public meaning, “inhabitants” meant “people who intend to stay somewhere indefinitely.” Therefore, these facts matter: More than 60 percent of the estimated 10.5 million unauthorized immigrants have lived here more than 10 years, and more than 20 percent for more than 20 years.

Republicans would benefit from not counting illegal immigrants for purposes of apportionment: This would reduce congressional seats (and electoral votes) in mostly blue states (27 percent of such immigrants are in California) and shift power away from cities. Republicans generally say, however, that the Constitution should be construed according to the text’s original meaning. Forced to choose between power and principle, well . . .

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