Bench Memos

The Census and Immigrants

At the American Thinker, Jed Gladstein complains that the Census Bureau counts illegal immigrants when determining the populations of states for purposes of allocating seats in the House of Representatives.  A similar complaint is made by Richard Greener and George Kenney in the LA Times.  Or is it counting all immigrants, legal as well as illegal, to which they object?  Hard to tell.  But Gladstein makes a simple error when he remarks that the census is supposed to count “the people living in each state who are legally eligible to vote in statewide elections.” 

Not so.  In the original Constitution, the number of seats in the House accorded to each state was to be determined every ten years 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 the census was to ignore the Indians within the country’s territorial sovereignty but “not taxed” (because they were not assimilated into American civil society but lived on tribal lands and governed themselves), count the slaves and use 60% of their total numbers (that’s the “all other persons”), and count all “free Persons” including indentured servants.  No distinction is made here between free persons who are citizens and those who are not.  In fact, it was commonly the case that indentured servants (“bound to Service for a Term of Years”) were recent immigrants, and they were to be counted nonetheless.

After the Thirteenth Amendment’s abolition of slavery rendered the “three fifths of all other Persons” a dead letter, the Fourteenth Amendment revised the census clause’s language to read (in the amendment’s second section) that “[r]epresentatives 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.”  No more distinction between the “free Persons” and “all other,” and no more reference to indentured servitude, also a thing of the past.  But the absence of any distinction between the citizen and the alien persisted in this new language: the “whole number of persons” in a state undeniably includes both categories.  While some states have at times permitted aliens to vote, that is no longer done in any jurisdiction I know of.  But voting rights are not and never have been the relevant consideration in counting population for congressional representation.  Like women in most states before the Nineteenth Amendment, and like minor children even today, the alien is counted because he is represented in Congress, even if he cannot participate in electing members of it.

Can we say of the illegal immigrant, though, that he is represented in Congress, even in some Burkean “virtual” sense?  That is an interesting question of political theory, perhaps.  And we might say that the important thing in practice is to prevent it from becoming a question–by dealing with the problem of illegal entry to the country.  But for constitutional purposes, the question hardly arises.  For “the whole number of persons in each State” would seem, on its face, to include everyone residing therein, illegally and legally alike.  Foreign tourists passing through Arizona to see the Grand Canyon, or other short-term sojourners like foreign exchange students, would be obvious candidates for exclusion from the census–just as American tourists from other states and college students permanently residents of other states would not be counted in Arizona’s total for representation in Congress.  But anyone really living in Arizona would be properly counted by the census–citizen, legal immigrant, or illegal alien.

Is it “unfair” for a state with large numbers of illegals to “benefit” from the boost their presence gives to its prowess in Congress?  Perhaps so, although one does not notice the people of Arizona welcoming in more illegals in order to achieve this effect.  But if the result is some advantage to states with more illegals and some disadvantage to those with fewer, the solution to the problem is to do something about our immigration crisis, not to mangle the plain meaning of the Constitution.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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