I have been seeing for the last few months a number of efforts to make sure that illegal immigrants are not counted in the next census. The latest example comes from this post at NRO’s The Corner:
Crist Calls Rubio 'Absurd' [Kathryn Jean Lopez]
Well, I don’t know much about the Crist/Rubio scuffle, but Crist has the correct answer from a constitutional perspective.
One of the most important principles of draftsmanship is that you have to use words consistently. Henry Weihofen explains it well:
[i]n drafting wills and contracts... variation can be dangerous. If you use a different term the second time you refer to a thing, the natural interpretation is that you did it for a reason; if you had meant the same thing, you would have used the same term; since you had used a different one, you must have meant something different.*
Every lawyer worth his salt knows this, so it can be safely assumed that the framers of the constitution did, too. So let’s look at the clauses pertaining to the census:
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. 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. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative...
So we start off with the infamous 3/5 clause, which says that both representation and direct taxes shall be distributed by population. That would include all free persons, except for certain Native Americans, and of course 3/5 of slaves. Then goes on about some procedure of the enumeration of those people.
So who is counted? All persons. And can a human be a “person” without being a citizen? Well, the clause just before it, discussing the qualification for representatives gives you that answer:
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.
Clearly that language contemplates that there are persons who are in America who are not citizens. And no, there is no reference to how they got here, either.
Yeah, I don’t like it much either. It recreates what was in fact noxious about slave representation in the first place. But first I have to explain to you that the common understanding about the 3/5 clause is exactly wrong.
It is always cited by people as proof that to the framers, a slave was 3/5 of a person. But ask yourself this: who was clamoring to count them as whole people for voting purposes? The South was. That should tell you all you need to know. The more persons who are counted in the census, the greater their power in the congress. And the Southern Planters wanted to see their power increased by using the bodies of the slaves, without giving those slaves the right to vote. Then, in turn, they would use that increased power to block any measure to end or diminish slavery. So the slave would be used as tool to ensure the continuation of his or her own bondage. And the outrage of the 3/5 clause isn’t that slaves were not counted as whole persons; it was that they were counted at all.
Of course, ideally slavery shouldn’t have existed on the date of ratification at all, but I digress.
And that explains to a real extent what was going on with Section 2 of the 14th Amendment. The fear was that the same class of Confederate bigots would come back to congress, their power increased by being able to count their former slaves now as full persons, while still not allowing them to vote. Thus the result of all of the blood and treasure spent in the war, would have been a net increase in the power of the Southern white.
Thaddeus Stevens, who is one of my constitutional heroes, had a solution that was simple and elegant: simply change apportionment to one based on the number of voters. But he was overruled on this point and instead the rule says that if you exclude a voter who have certain traits, then the apportionment was reduced proportionally.
And of course all of that was mooted two years later when the 15th Amendment was ratified.
And in the process of all of that the framers of the 14th Amendment reaffirmed that the census was only to count persons, regardless of citizenship status.
But by bad irony, that also created a loophole, where a situation much like the one the founders wanted to prevent, was inevitable; we have people in congress with thousands of people that they supposedly represent that have no say in their election. And these people might have interests directly the opposite of their interests. I would dare say that if the founders had the foresight to anticipate the issue, they might have written the constitution differently.
And I know, I know, alot of conservatives will be upset to see me say that yes, we have to count illegal immigrants in our census. And I understand how this gives our congress all the wrong incentives. Its bad policy, I will grant you any day of the week.
But here is the thing, guys. If we are going to be serious about interpreting the constitution as written, it can’t be the case that everything comes out just the way we want it. I have long said, if you can’t name something that the founders put into the current constitution that you disagree with, you’re probably not reading it right. Because the chances that you and the founders would be able to see eye to eye on everything, is about slim and none.
For me, I can’t be true to my principles and interpret the census clause as meaning anything but this: everyone gets counted. If you are here, you are counted. Even if you are not supposed to be here. Even as I find this outcome outrageous, I cannot deny that this is the inevitable result of proper and honest interpretation of the constitution.
* Legal Writing Style (2d ed. 1980). This is hands down the best book on how to write like a lawyer, if you should want to do that.
