Comment from Chris Lawrence
Time August 10, 2009 at 6:07 pm PDT

In point of fact, the census has always been based on an actual enumeration of “persons,” not citizens, since the 14th Amendment, which states (paragraph 2, sentence 1)

“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 paragraph then goes on to use the term “citizens” in a different context (penalizing states’ apportionment for denying the right to vote to male citizens over 21), suggesting that Congress intended “persons” to have a broader meaning than “citizens” and more importantly that Congress understood the two terms to have different meanings.

Whether legal or illegal, immigrants in a state are clearly “persons” under any reasonable definition of the term and thus have to be accounted for apportionment reasons.

There are plenty of other things that citizenship status might affect that are based on census population figures, but apportionment has never been one of them.

Comment from Alan
Time August 10, 2009 at 7:19 pm PDT

Chris is right; and maybe we continue to do it this way because, logistically, it would be extremely difficult to conduct a Census fairly that takes takes voting privileges into account, because voting privileges are not static. For instance…

All children under age 8 will be counted, yet they won’t be able to cast a single vote until after the NEXT Census. Should they be excluded from the count? Wouldn’t that unfairly give more power to states with more young children?

Many immigrants who came here legally might become citiezns some point during the next ten years. Is it fair to exclude them, even if they are just days or months away from voting privelleges?

Illegal immigrants might be offered a chance to remain in the country legally and become voting citizens. Should they be excluded?

Thousands of American citizens in the criminal justice system have their voting rights suspended, often to be restored at a later point. Should they be excluded, even if they will have their rights restored within the next ten years?

What about those who currently have their voting rights but will become felons in the next ten years?

Comment from Patrick Glenn
Time August 10, 2009 at 8:29 pm PDT

Chirs and Alan: you both make good points regarding the 14th Amendments’ treatment of “persons” versus “citizens.” That is a strong argument for counting all legal residents (citizens, children, convicts, legal immigrants) who reside within the United States. By definition, however, illegal immigrants are not legally recognized as residing within the United States. If/when the federal government officially counts these persons as recognized residents, it is likewise establishing – as an officially, legally-sanctioned position – that it existing immigration laws are irrelevant. Is that a good precedent to set?

Comment from Jay_C
Time August 10, 2009 at 8:47 pm PDT

‘By definition, however, illegal immigrants are not legally recognized as residing within the United States. If/when the federal government officially counts these persons as recognized residents, it is likewise establishing – as an officially, legally-sanctioned position – that it existing immigration laws are irrelevant. Is that a good precedent to set?”

I agree with Patrick, counting illegal aliens would be ignoring the fact that they shouldn’t be here in the first place (hence, illegal) If my company is counting employees for the day, and some guy off the street walks in at the same time, is he an employee? Of course not…

Personally, I do however, somewhat agree with Chris (if what he is writing is correct regarding persons vs. citizens) Specifically that people here legally on work visas, etc. would fall under the umbrella as “persons”. (The equivalent in my analogy above contractors (vs. full time employees) would be analogous to people in the US on work visas)

This is not cherrypicking by the way, it is counting legally vs illegally.

Comment from Jason Arvak
Time August 10, 2009 at 9:29 pm PDT

I don’t agree that counting illegal immigrants makes immigration laws “irrelevant”. We count speeders in the census. Does that make speeding laws irrelevant?

The fact is that they do reside there, they are protected by the police and subject to other laws. To not count them would simply be to deny reality.

Comment from Jay_C
Time August 10, 2009 at 9:49 pm PDT

Hi Jason, I respectfully disagree… “Speeding” has nothing to do with being here in the country illegally; breaking “any law” isn’t the point.

Counting someone that shouldn’t be here in the first place is the problem. It flies in the face of the spirit of the immigration laws put in place…

http://www.uscis.gov/propub/DocView/slbid/1/2/65?hilite=#0-0-0-239
Sec. 237 1/ [8 U.S.C. 1227]

At the very least, if we are going to “give illegal’s a pass” then we at least should do the long form and go through the motions that they are documented as illegal.

Illegals would not want to be counted in the long form version. In the short form, it is in their best interest to be counted. (as from my standpoint, the liberal agenda seems to be to create a permanent voting bloc)

I agree that they are protected by the police and subject to other laws.

Comment from Jay_C
Time August 10, 2009 at 9:53 pm PDT

“as from my standpoint, the liberal agenda seems to be to create a permanent voting bloc”

as that is where this slippery slope wil take us… sorry, I meant to add that earlier..

Comment from Jason Arvak
Time August 10, 2009 at 9:54 pm PDT

Counting someone that shouldn’t be here in the first place is the problem. It flies in the face of the spirit of the immigration laws put in place…

Counting illegals in the census does not “give them a pass” nor does it invalidate the law. And even if it did, an immigration statute doesn’t trump the Constitutional requirement to count “the whole number of persons”. Unless you’re arguing that law-breakers cease to be persons?

To refuse to count illegals would punish the governments and citizens in the areas where they reside (census figures are used to calculate amounts of federal aid of many types). It would do nothing to punish the illegal immigrants themselves.

Also, this “lawbreaker” bit about illegals really needs to stop being absolute. Yes, they broke the law to come here, but how serious a crime is that really? We don’t put people in jail for simple trespassing (the closest analogue), so should we really be using the illegality of illegal immigration as justification for every form of punishment we can dream up? I grant that I am an “open borders” kind of guy and thus not predisposed towards the anti-immigration cause, but I really can’t understand the virulence of the anti-illegals movement as it currently exists.

Comment from Patrick Glenn
Time August 10, 2009 at 10:11 pm PDT

Jason, I don’t quite get your analogy with speeders. Traffic rules have no legal nexus to residency laws, whereas census counts do have a legal nexus to residency laws. Their VERY PRESENCE is a violation of the law. If they were not committing the crime of illegally residing within the United States, they would not be available to be counted on the census. Thus if the federal government officially counts illegal immigrants, it will be legally sanctioning the act of illegal residency.

Citizens and legal immigrants who are committed felons are counted on the census even though they cannot vote because they are legally recognized “residents” of the Unites States: they have legal “papers” such as birth certificates, green cards, etc., which entitle them to reside legally within the United States.

It sets a bad precedent for the government to deliberately not enforce its laws. I’m actually in favor of high rates of immigration (although I would prefer it be done on a rational basis). But if we’re not going to enforce immigration laws, we should repeal the existing laws.

Comment from Patrick Glenn
Time August 10, 2009 at 10:25 pm PDT

Jason, I do agree with you, though, that illegal immigration should be lightly punished (e.g., fines). I’m not in favor of deportation, etc., except for felons (and maybe gang members). At heart, I’m also an “open borders” guy, but after 9/11, it became clear that we had to have a better sense of who was coming and going across our borders. Also, not enforcing our existing laws sets a bad precedent. As long as the existing laws remain on the books, we should take measures to enforce those laws (mostly via employment-related and border traffic measures), but then I would hope that we could develop more sensible immigration policies. I’m normally a very pro-market guy, too, but I don’t think it’s good policy to allow every single person who wants to come to the United States to all come at the same time. Immigration laws cannot function purely in terms of free market labor flows for several reasons.

Comment from Chris Lawrence
Time August 10, 2009 at 10:30 pm PDT

The problem with not counting illegals is that it requires you to come up with a different definition for “person” in this section of the amendment but use a different one elsewhere in the 14th Amendment and elsewhere in the Constitution. The word “resident” doesn’t even appear in the relevant passage – it’s “persons in.”

And illegal immigrants have always been counted; the census has never made a distinction based on legal presence – the “citizenship” question has nothing to do with legal presence, as many non-citizens are legally present in the United States.

Comment from Tully
Time August 10, 2009 at 10:53 pm PDT

To refuse to count illegals would punish the governments and citizens in the areas where they reside (census figures are used to calculate amounts of federal aid of many types).

Yet to count them for purposes of apportionment rewards governments and citizens in those areas for condoning lawbreaking. It also punishes those areas/governments/citizens who do not actively attract a greater number of illegals. California increases its House “power” by nearly 20% by illegals. Those extra 9 seats are stolen from other states, and any accompanying federal funding is likewise being stolen from citizens and legal residents. Why shouldn’t California be punished for that?

Comment from Jason Arvak
Time August 10, 2009 at 10:57 pm PDT

Jason, I don’t quite get your analogy with speeders. Traffic rules have no legal nexus to residency laws, whereas census counts do have a legal nexus to residency laws. Their VERY PRESENCE is a violation of the law. If they were not committing the crime

Ok, trespassing then. We don’t jail trespassers. We don’t refuse to count them in the census. We don’t deny them medical care. We don’t try to strip their children and spouses of citizenship or educational opportunities. We don’t forcibly split up their families or operate under a presumption that they are dirty, disease-ridden unpersons.

But there are those who would do all those things to illegal immigrants and much, much more.

Why shouldn’t California be punished for that?

Because California isn’t the one tasked with enforcing federal law. In many cases, states and localities are actively barred by courts from acting to limit illegal immigration in their area.

Furthermore, whether we like it or not, that 20% of the population does exist in California and the Constitutional requirement of the census does not allow us to pick and choose the kinds of people we want to count. If you want to exclude illegals (or any other group) from the census, then pass a Constitutional amendment. Until then, count them and use those numbers in accordance with the law.

Comment from Patrick Glenn
Time August 10, 2009 at 10:58 pm PDT

Chris: again, you make several good points. But I’m reading it as person = resident because you could have people vacationing or conducting business in the United States who, as “persons,” may be present at the exact time of the census data survey but we would not think of counting them. I was not aware of the past policies regarding whether illegal immigrants were counted. However, the numbers of illegal immigrants were relatively low prior to recent decades and these days illegal immigrants are placing much greater demands on social welfare systems. What might have been regarded as an inclusion of convenience (for simplicty’s sake) in the past would have more serious implications now.

Nevertheless, I do understand that making an effort to NOT count illegal immigrants would have logistical drawbacks. I’d be less concerned about the social services budget allocations.

Comment from Jason Arvak
Time August 10, 2009 at 11:11 pm PDT

Well, Patrick, I understand your reason for inferring “person = (legal) resident”, but I don’t think it fits into the Constitutional meaning of the term. I am fairly certain such a limitation has never been used before and, if it had, it would be vulnerable to a strong Constitutional challenge in the courts. I am certain that it should not be undertaken in the absence of specific legal authority. I can only hope I get done with law school in time to oppose you in the resulting court challenges.

Comment from Patrick Glenn
Time August 10, 2009 at 11:27 pm PDT

Jason Arvak :

We don’t jail trespassers . . . We don’t deny them medical care. We don’t try to strip their children and spouses of citizenship or educational opportunities. We don’t forcibly split up their families or operate under a presumption that they are dirty, disease-ridden unpersons.

Jason, I’m not in favor of those types of draconian responses to illegal immigration. If you monitor flows at the border, enforce sensible labor policies, and limit social services eligible to ADULT illegal immigrants to only emergency-type services, that would go quite a ways. We need a more sensible immigration policy. But, again, I’m in favor of high rates of immigration.

Tully makes a good point above about the census rewarding states like California for having relatively high numbers of illegal immigrants. Even if it is not the primary responsibility of the state government to enforce immigration laws, a policy which counts all illegal immigrants for purposes of representation (= revenue) might have the effect of incentivizing state governments to attract illegal immigration (assuming they can do so without voter backlash). Plus, cities like SF have sanctuary policies, so I’m not sure that the governments of/within California can say that they’re just bystanders.

The other issue is addressed by Michael above. The Democrats would like for illegal immigrants to be brought under its nanny state patronage umbrella and thereby become part of its long term power base. The manner in which the census would switch to all short form and attempt to count (or survey) as many illegal immigrants as possible might harm the legitimacy of republican/democratic governance. This goes hand-in-hand with citizen concerns about governement deficit spending that is exacerbated by social services to illegal immigrants. I agree that it would be wrong to deny illegal immigrants medicare care, police protection, etc., but there are cynical political motivations involved as well. How will the public view the census in the future?

Comment from Patrick Glenn
Time August 10, 2009 at 11:30 pm PDT

Sorry, I will get the block quotes right one of these days. Only the first paragraph above is excerpted from Jason’s comments. The rest are mine.

Comment from Michael Merritt
Time August 11, 2009 at 2:06 am PDT

Very few people are even considering the logistical nightmare it would be to even try and determine who is legal and who is not. The Republicans’ idea of house visits simply would not work for the same reasons as deporting every illegal immigrant right now would not work. I don’t think there are enough people to do the job.

However, the idea might put second thoughts into illegals’ heads before the census.

Comment from Tully
Time August 11, 2009 at 4:47 am PDT

Jason, you made the “punishment” argument, I was showing why it’s a bogus argument on its own terms. The “fairness” basis of the “punishment” argument depends on not acknowledging that the state with extra illegals immorally and unfairly gains power at the expense of states with fewer illegals. As Patrick points out, it encourages the facilitation of illegality by the state, at cost not just to the citizens of other states but also to some extent to the citizens of their own.

The legal argument is a separate argument, and I don’t disagree with the analysis. But it’s not a moral argument, it’s a legal one.

Comment from Jason Arvak
Time August 11, 2009 at 4:52 am PDT

Well, Tully, regardless of whether you think it is a legal argument (though it fails to address the point I made about jurisdictional barriers that stop states from enforcing immigration law, thus making it legally AND morally problematic to try to punish those states for the presence of illegal immigrants within their border), it is still not a Constitutional argument as no place in the Constitution are a class of persons physically present in an area designated as exempt from the census.

Unless, of course, you want to try to leverage the 3/5 clause somehow, but I don’t think you want to go there. I would note that the presence of the arcane 3/5 language does indicate that if the Framers had wanted to exempt some category of people from the census, they were capable of and willing to do so. Thus, their failure to do so indicates that any argument that seeks to make legality a prerequisite to being counted in the census is probably not valid.

Also, Michael Merritt’s point is strong — what, would the census takers demand that all respondents provide their certified long-form birth certificate, suitable for framing and presentation to a convention of birthers?

Comment from Jay_C
Time August 11, 2009 at 5:22 am PDT

“Also, this “lawbreaker” bit about illegals really needs to stop being absolute. Yes, they broke the law to come here, but how serious a crime is that really?”

That is not so bad, you are right. But more to my point, it is the burden and resource drain on our society that is what bothers me. I don’t see how we should tolerate illegal immigration, and then on top of that count these same folks. It just sets a bad precedent. Why do we have laws? Since when is enforcing the law a crime? This is not just a prinipled stace, I am taking but a legal one as well. Sure, we can’t just “round ‘em up” but, neither should we open the borders and let them become a further burden on us. I am just for reasonably enforcing the law first and then within a reasonable effort, counting the folks that are supposed to be here. Perhaps we will just have to agree to disagree, but I believe I have the spirit and letter of the law on my side.

Comment from John G
Time August 11, 2009 at 10:30 am PDT

@Chris Lawrence

I would like to go back to this line of the 14th ammendment, “excluding Indians not taxed.” Although clearly Illegal Aliens are not Indians, the framers did clearly provide basis for representation to be based on those who were “taxed”. Illegals do not pay taxes, thus should make them ineligible to be counted for basis of representation.

Comment from Jason Arvak
Time August 11, 2009 at 1:37 pm PDT

And how would we verify that every single respondent to the census had actually paid taxes?

Children aren’t taxed — should they be excluded?

When illegal aliens do pay taxes (most of them do) would they then be counted?

Comment from Patrick Glenn
Time August 11, 2009 at 2:14 pm PDT

I have to concede that the two main arguments in favor of counting illegal immigrants, as discussed above, are very compelling: 1). the “persons” language in the Constitution; 2). the logistical nightmare of trying to sort out (survey) legal from illegal residents (or persons).

Probably the only legal and logistical solution would be to create and enforce more sensible immigration policies so that fewer illegal immigrants are being counted on the census, burdening social/medical services systems, etc. I do expect, however, that the status-quo has the potential to damage civic faith because it says to the citizens: we’re going to only loosely enforce our own immigration laws, if at all, but we will interpret and implement the census law in strictly “originalist” terms.

Jason, I know that you’re arguing in good faith. But I would invite hard-core Democratic partisans who make similar arguments to the ones you make above: if we’re going to take an originalist position on the census, then let’s extend the originalist approach to all other aspects of constitutional law. I’d be very happy to come to that arrangement, but I won’t hold my breath. If I were an advocate of a “living, breathing Consitution,” I could argue that the framers had no way of anticipating the present circumstances, or else it is likely they would have barred illegal immigrants from being counted on the census. Keep in mind that the 1790 census was very much a “door to door” affair. I don’t think they would ever have invisioned the drive-by surveying that will be done for the 2010 census.

As for logistics, why are we going away from the long form entirely? Perhaps this is a new Constitutional requirement. Oterwise, we have lots of good data from previous decades (2000, 1990, 1980, etc.) for which social scientists and others would like to make comparisons to 2010. Guess we won’t be able to do that anymore. Why?

Comment from Jay_C
Time August 11, 2009 at 3:08 pm PDT

“Probably the only legal and logistical solution would be to create and enforce more sensible immigration policies so that fewer illegal immigrants are being counted on the census, burdening social/medical services systems, etc.”

True. But we do already have a “line in the sand” regarding the letter and spirit of the law is concerned. (The goal being nobody in this country is here illegally) We should shoot for that as a goal (knowing full well that in reality we would most likely never reach it, but always striving for it none the less) Knowing this we already have laws in place, it is just a matter of getting better at enforcing them.

Comment from Jay_C
Time August 11, 2009 at 3:10 pm PDT

“I could argue that the framers had no way of anticipating the present circumstances, or else it is likely they would have barred illegal immigrants from being counted on the census. Keep in mind that the 1790 census was very much a “door to door” affair. I don’t think they would ever have invisioned the drive-by surveying that will be done for the 2010 census. ”

Very good point Patrick. That again, goes to the spirit of the Law.

Comment from Jay_C
Time August 11, 2009 at 3:27 pm PDT

Sorry for my persistance on this, I guess it just boils down to I don’t want anyone “gaming the system” for a particular advantage, and sticking as closely as possible to the rules we have in place. I certainly don’t want groups to ripping out the rules here and there, with the intention of making “fresh new rules”. That just doesn’t sit well with me. I guess it is clear I am not a fan of Cass Sunstein

Comment from Jason Arvak
Time August 11, 2009 at 3:39 pm PDT

So now the proper way to interpret the Constitution is to supplement the text with assumptions about what the Framers would have done if they had known about modern problems?

If so, we’ve accomplished a miracle here at PoliGazette! The chasm between liberals’ “living Constitution” and conservatives’ respect for the Framers has at last been completely abolished!

Seriously, as soon as you embrace nebulous doctrines like “the spirit of the law”, then you become unmoored to any actual text and it becomes possible to divine some “spirit” that motivates anything the judge wants. That way lies the Warren Court. Do you really want that?

Sorry, but I think if conservatives are willing to throw out strict adherence to the Constitutional text just to indulge in yet another outburst against illegal immigration, then they have forfeited their claim to be conservatives and have reverted to base nativism.

Comment from Jay_C
Time August 11, 2009 at 4:12 pm PDT

“Seriously, as soon as you embrace nebulous doctrines like “the spirit of the law”, then you become unmoored to any actual text and it becomes possible to divine some “spirit” that motivates anything the judge wants. That way lies the Warren Court. Do you really want that?

Of course I haven’t “figured it out”, Quite the opposite I am more entrenched as ever in the letter of the law than anyone that has written here so far. Cass Sundstein and his ilk, would tweak the rules here and there and before you know it, we are somewhere completely different from where we started. “Law and order is here if you want it”. It’s a concession to the way in which the demands of dailyy life cause us to define small deviancies down to let single-serving infractions go. For some, the intricacies of public law, in its everyday pattern, reflects institutional forms of justice and injustice that offend something more than law itself. This is how immigration laws, present and future, strike those for whom charity, solidarity or utility is more important than the rule of law. It’s an old conflict and a similar dilemma that kept Victor Hugo going for eight hundred pages.
But having, to obeying standing immigration law, even though not doing so may be “not so bad” — is not, despite howls to the contrary, to face the forced moral calculus of stealing versus starvation. It is the most basic statement of the rule of law to say that one does not have the right to continue violating any law, not even in order to perform the most extravagant acts of kindness or public utility, simply because the law has not been well-enforced.

Comment from Jay_C
Time August 11, 2009 at 4:26 pm PDT

‘Sorry, but I think if conservatives are willing to throw out strict adherence to the Constitutional text just to indulge in yet another outburst against illegal immigration, then they have forfeited their claim to be conservatives and have reverted to base nativism.”

Again, I talked about being concerned about folks “gaming the system” and maintaining “strict adherence to the letter of the standing law” AS WELL AS to making sure that if changes do occur, that we are maintaining the spirit of the law. Before I am jumped on again, I am not all knowing, and no, I haven’t gone back in time.
Illegal immigration laws were put in place for a reason, what is that reason? to enforce the rules? or to ignore it AND to then anti-up AND THEN count those that are breaking that law? Which one do you think most “reasonable people” would say makes more sense? Both my letter and spirit are in sync, are they not? (that being enforcement of the law)

Where do we draw the line? As was said earlier, how about vacationers, do we count them? Truckers from Canada? they are here, lets throw them in the mix, folks in planes over our airspace at the time, etc, etc..

Comment from Patrick Glenn
Time August 11, 2009 at 5:00 pm PDT

The Democrats/progressives have a tendency to treat the Constitution as an all-you-can-eat buffet from which they can pick and choose those items that serve their agenda(s). And, yes, their opponents do it, too; however, I would argue that the tendency is less pronounced among conservatives/libertarians/classical liberals and, besides, the Democrats/progressives are in charge right now.

In regard to the census, Democrats/progressives will use originalist arguments because it suits their purposes, but they usually have no patience for orginalist legal philosophy. And what is the primary purpose of Democratic/progressive politicians and political operatives in ensuring that the highest numbers of illegal immigrants are counted on the census? How does that counting serve the American public at large (not just residents of CA, AR, NY, etc.)? Mind you, I appreciate that public officials (and even taxpayers) in states like CA have very legitimate reasons for wanting greater federal representation to help pay for its greater service burdens. I also assume that Democratic/progressive pols themselves have good intentions in promoting their “social justice” agendas; however, I object to their cynical ends-justify-the-means schemes to acquire power by any means necessary.

Again I know that Republican politicians and operatives share the same tendencies. When they manifest it, I will criticize them just as harshly (and have many, many times in the past). The state will always try to expand its power. That’s why voters must send a powerful mandate to turn down the spigot.

Nevertheless, Jason, I largely concede the constitutional and logistical arguments in favor of counting illegal immigrants on the census. For now at least, if I were a judge, I would have to rule in favor of the argument(s) made by you, Chris, Alan, and Michael Merritt. Yet I ask: At what cost is this victory?

And, again, I heartily invite Democratic partisans and/or ideological “progressives” to ALWAYS take an originalist (or strict constructionist) approach to interpreting constituional law. But, yes, I will stick by my belief in originalist constitutional law even if I might be tempted to borrow the old liberal “living, breathing” approach at times.

Comment from Patrick Glenn
Time August 11, 2009 at 5:29 pm PDT

Jay_C: I agree with you that the manner in which census law/policy may be used to “game the system” does not seem to square with general notions of fair play and the spirit of the law. I expect that many voters – especially those who live in states with relatively low numbers of illegal immigrants – will be bothered by it as well. If the Democratic regime makes one or both of the above arguments, many people will think: How come the government does not apply the same degree of legal precision to the enforcement of immigration law? Also: If it is infeasible for the government to differentiate on the census between legal and illegal residents (or persons), how will it be feasible for the government to provide social/medical/etc. services to illegal residents?

In other words, the better remedy is probably at the ballot box. One way to look at it: the Democrats/progressives are gambling that they can add more votes to their power base this way than they will lose.

Comment from Tully
Time August 11, 2009 at 7:16 pm PDT

Evading my point* with misdirection and straw men, I see. Are there any more arguments I never made that you’d like to arbitrarily assign to me so you can rebut them, Jason?

It is IMHO unequivocal from the legislative history commencing in 1790 with the first Enumeration Act that the Census is (and always has been, aside from the defunct “Indian clause”) meant to ACTUALLY COUNT each and every person, legal or illegal, residing within our borders with intent to remain as a permanent resident, regardless of their legal immigration status. Not to sample them, but to actually count them. There is nothing “unconstitutional” about the inclusion of illegals in the census numbers if they are actual inhabitants and not just temporary residents intending to return “home” to another nation. Their status as criminals in violating immigration and entry laws is utterly irrelevant for census purposes. Only their intent (or lack thereof) to be permanent residents counts. The “unconstitutional” reference used by the WSJ op-ed authors is actually as to the method of counting, and they employ a fair amount of misdirection to imply that including the illegal count at all somehow unconstitutionally misbalances the apportionment. It does not, as long as the distinction between temporary residents and permanent ones is observed in the counting, and the former excluded.

But you can’t ascertain intent without asking directly…and that’s where the fight begins in earnest.

The argument between the parties breaks down to the following: The Constitution and subsequent Enumeration/Census Acts require an actual enumeration, not an estimated one. The divide: Republicans are quite comfortable with actual enumeration, and Democrats object to it and want to use sample-derived estimates for hard-to-count (illegal) populations. For obvious reasons, illegals will attempt to evade the census regardless of their intent to be temporary or permanent residents, so an actual enumeration will UNDERcount those illegals who should be counted. Dems want to use sampling to estimate the true number of illegals and include them, but without querying residency intent the method would certainly OVERcount illegals for census purposes, as many do indeed intend to make some money and then go home. There are also not-unreasonable fears that the sampling would be “gamed,” fears stoked by the use of partisan/activist organizations such as ACORN in the census.

As Jason states in the original post, the stands of the respective parties have less to do with the law and constitutional intent than with the perceived comparitive political advantage of each method to each party. “Original intent” requires an actual count and would include in the census those illegals who intend to remain as permanent residents while excluding those who intend to return home. Neither party seems to care much about original intent save as it favors their own political advantage, as neither party wants to observe that distinction and abide by it.

[* -- The point that the "punishment/fairness" argument of not counting illegals in the census for apportionment fails on its own terms and assumptions by disregarding the counter-balancing UNfairness and punishment that counting illegals transfers onto other states with lower levels of illegals, quite independently of the state of the law. States have a positive and demonstrable incentive under the census to encourage illegal immigrant residents. The "punishment/fairness" argument thus encourages condoning and promoting illegality that "punishes" states that successfully discourage illegality, all in the name of "fairness." Heh.]

Comment from Jay_C
Time August 11, 2009 at 7:29 pm PDT

“Not to sample them, but to actually count them.”

Aside from our disagreement as to weather illegals should be counted at all, I agree Tully. The “door to door – long form” at the very least, would provide for less “gaming” of the system.

In fact, if implemented properly, the long form method would actually help to enforce immigration law and reduce illegals in the country, whereas the short form would only encourage this behavior, but progressives would not want that. As it seems from my point of view, charity, solidarity or utility (pick your other poison) are more important than the rule of law.

Comment from Patrick Glenn
Time August 11, 2009 at 8:22 pm PDT

Tully, excellent analysis. You helped educate me on several points.

First, that “persons” do not include immigrants temporarily residing within in the United States who intend to return to their nations of origin (or perhaps another country altogether). Looking at paragraph 2, sentence 1 (see: comment #1 above, from Chris Lawrence), it doesn’t appear that the 14th Amendment changed the intent of the Framers in that regard. Indeed, it even carried over the Indian exception. Thus it would NOT be consistent with an originalist interpretation to assert that ALL illegal immigrants should be enumerated – only those who intend to remain in the U.S. Therefore, the case for counting all illegal immigrants must rest on other arguments, such as logistical issues.

Second, are you aware of exactly how the census bureau would survey illegal immigrants? Apparently, the long form, which was sent to 1 in 6 households, was started in 1940. But the census has always had some version of a “short form” to make an actual total “hard” count of the population. The Census Bureau website states, “The 2010 Census will be a short-form only census and will count all residents living in the United States as well as ask for name, sex, age, date of birth, race, ethnicity, relationship and housing tenure . . .” Okay, so they’re advertising the 2010 Census as “short form only” not short form + survey (estimated) data added into the totals. What does it mean – in a constitutional sense – to “COUNT all residents (or persons)”? In theory, the 2010 totals should be based on the total numbers of short-forms collected. Without a short-form, a person does not get counted. Note that, for purposes of demographic analysis, etc., the short form is referred to as the “100 percent count.” Isn’t that what an enumeration is – a 100 percent count (and not a survey/estimate)? Is a survey the same thing as a census? Will census collectors fill out thousands of “John Doe” short forms to represent the estimated numbers of hard-to-find (or uncooperative) illegal immigrants?

Comment from Jason Arvak
Time August 11, 2009 at 8:51 pm PDT

Maybe you should stop going off on me for no reason whatsoever, Tully, especially since you apparently lack the attention to detail yourself to even have accurately noted who wrote the original post.

I agree with Patrick that the analysis in your comment is excellent. It would have been even more excellent if not preceded by gratuitous personal abuse.

Comment from Jay_C
Time August 11, 2009 at 9:40 pm PDT

‘Thus it would NOT be consistent with an originalist interpretation to assert that ALL illegal immigrants should be enumerated – only those who intend to remain in the U.S. Therefore, the case for counting all illegal immigrants must rest on other arguments, such as logistical issues. ”

I assume those logistical issues would be you would be:
1) identify them
2) contact them
3) Ask if they are planning on staying

Your right, that would be quite an undertaking, considering it would be almost the same effort to deport them. So, if what you are saying is correct, I assume that means they won’t be counted at all.

Comment from Patrick Glenn
Time August 11, 2009 at 10:11 pm PDT

Jay_C, I’m not sure if it’s been detrmined how the 2010 census will “count” illegal immigrants. Check out this NYT article from Arpil 3, 2009: http://query.nytimes.com/gst/fullpage.html?res=9502E4DE1138F930A35757C0A96F9C8B63.

From that article:

“Republicans expressed alarm because of one of Mr. Groves’s specialties, statistical sampling — roughly speaking, the process of extrapolating from the numbers of people actually counted to arrive at estimates of those uncounted and, presumably, arriving at a realistic total.

If minorities, immigrants, the poor and the homeless are those most likely to be missed in an actual head count, and if political stereotypes hold true, then statistical sampling would presumably benefit the Democrats.

Republicans have generally argued that statistical sampling is not as reliable as its devotees insist. ‘Conducting the census is a vital constitutional obligation,’ Representative John A. Boehner of Ohio, the House minority leader, said Thursday. ‘It should be as solid, reliable and accurate as possible in every respect. That is why I am concerned about the White House decision to select Robert Groves as director of the Census Bureau.’”

Again, would it be constitutional for the Census Bureau to enumerate the population based on an estimate? Is that really a census? Has the bureau used estimates in the past and I’m just not aware of it? Is there any case law addressing these issues?

Comment from Patrick Glenn
Time August 11, 2009 at 10:35 pm PDT

Check out the below linked analysis by Mark Krikorian of the Center for Immigration Studies. CIS and Krikorian are in favor of a “low immigration” policy, so they definitely have their own agenda. Nevertheless, the analysis does a good job of addressing some of our questions. Moreover, Krikorian takes to task the Wall Street Journal op-ed linked above in Michael’s original post, calling it “sloppy and poorly thought out.”

http://www.cis.org/Krikorian/WhoCounts-OurUnconstitutionalCensus%20.

Comment from Jay_C
Time August 11, 2009 at 10:53 pm PDT

Thanks for the link Patrick,

In light of the reality of the situation, I like this idea:

“But if the inclusion of illegals specifically is your concern, then better enforcement of the immigration laws is your only practical recourse (something I suspect the Journal wasn’t considering when they greenlighted the op-ed). This would have three positive effcts — dissuade foreigners from coming here illegally, dissuading some of those already here from staying, and dissuading those remaining here from answering census questionnaires (it’s estimated that 90 percent of illegals are counted in Census Bureau surveys).

This last one has the most potent short-term impact — stepping up enforcement in the run-up to April 1, 2010, Census Day, would scare off illegals from responding and result in an apportionment of congressional and state legislative seats less arttificially skewed in favor of the Democrats. ”

and of course this will happen:

…”But this administration is likely to do the opposite and follow in the footsteps of the Carter administration, which ordered the INS to stop immigration enforcement altogether in the spring of 1980 so the illegals would feel safe to come forward and be counted. Preventing a repeat of that policy should be a top priority for conservatives.

(both of which is what I say here:)

@Jay_C

Comment from Jason Arvak
Time August 12, 2009 at 12:57 am PDT

No, Jay, they will almost certainly be counted because there is no practical way to differentiate them from the surrounding population.

Also, I think going door-to-door and asking them to self-identify as illegals and state their intention to remain would not get honest answers and, even if it could, would violate their rights against self-incrimination.

Comment from Jay_C
Time August 14, 2009 at 7:12 pm PDT

Ok, but if that is the case, why will we just cherrypick citizens and illegals? Why not everyone else?

Comment from Jay_C
Time August 14, 2009 at 7:19 pm PDT

actually, I should have said, will we count everyone else? I shouldn’t assume we will not)

Comment from dona
Time August 20, 2009 at 4:27 pm PDT

@Chris Lawrence
The phrase ” …the WHOLE number of persons…” refers to a MATHEMATICAL count. ART.I SEC 2. of the Constitution declared this. The word “whole” does not mean ALL. It means that FREE individuals were to be counted as a WHOLE person and slaves were counted as 3/5 of a person. The phrase “…excluding Indians not taxed…” meant that these Indians/foreigners who weren’t taxed couldn’t be counted because they weren’t citizens. These Indians belonged to a FOREIGN nation and were not subject to the laws of the United STATES of AMERICA. Why do you think the US government had to sign treaties with the Indians to take their lands? This is what the US had to do according to the Laws of Nations.
The 14th Amendment continues this phrase “…excluding Indians not taxed…”. They were still citizens of A FOREIGN NATION.

Comment from Jason Arvak
Time August 20, 2009 at 4:36 pm PDT

The phrase “…excluding Indians not taxed…” meant that these Indians/foreigners who weren’t taxed couldn’t be counted because they weren’t citizens.

It only means that after you added words to it, which is generally considered an invalid method of Constitutional interpretation except by Ron Paul fans.

P.S. Both foreigners and Indians do pay taxes.

Comment from dona
Time August 20, 2009 at 4:47 pm PDT

@John G
Actually, I believe it DOES mean illegal aliens. You have to consider the time frame the Constitution was written. Many of the Indian NATIONS had sided with England in the War. These individuals resided on the same continent, BUT were not citizens of the United States. They were not members of ANY of the colonies. They had their own lands and laws. They were a separate nation residing on the same continent, JUST like Germany and France reside on the same continent, but are separate NATIONS. The United States had to enact TREATIES with these NATIONS in order to negotiate for THEIR land. “…excluding Indians not taxed…” means exactly any individual, not taxed, because they are a foreigner and NOT a citizen of the United States. They are a citizen of a foreign nation. These individuals were not and are not SUBJECT to the laws of United States.

Comment from dona
Time August 20, 2009 at 4:58 pm PDT

@Jason Arvak
This is why people who are here illegally are “DEPORTED”. They are here illegally and have no legal rights in this country to vote or to reside here. The constitution reiterates time and again natural born and naturalized. People like me who were born and reside in this county and individuals who, THROUGH LEGAL CHANNELS, are naturalized and reside in this country are guaranteed the right to representation and the other rights in the Constitution of our country. If I go illegally to Mexico, I am not guaranteed ANYTHING.
If it meant “ALL” people, then everyone here would be Legal citizens once they set foot on our soil.

Comment from Jason Arvak
Time August 20, 2009 at 5:17 pm PDT

Wrong again, Dona. Those who break the law are not stripped of their Constitutional nor their human rights. The right to vote and the legal right to reside are irrelevant to the text requiring the census and the words you keep trying to add just aren’t there.

“Natural born” and “naturalized” distinctions related merely to an idiosyncratic and obsolescent clause regarding the qualifications for President. They has no application to human rights, Constitutional rights, or the census.

I suggest you talk to someone who actually knows about Constitutional and human rights law before taking on faith whatever is apparently being presented to you by nativists and other bigots.

“…excluding Indians not taxed…” means exactly any individual, not taxed, because they are a foreigner and NOT a citizen of the United States.

Again, it only means that after you add words to it, which is generally considered an invalid method for interpreting the Constitution, except of course by Ron Paul fans who want to pose as Constitutional Defenders ™ while dramatically altering what’s actually there and outright ignoring parts as well as some “living Constitution” progressives who want to use post-modernist hand-waving to insert 20th-century liberalism into an 18th century document.

Comment from Disgusted
Time March 17, 2010 at 9:33 pm PDT

I am very frustrated. Why are we giving bonuses to states that condone illegal immigration by giving them more seats. This just seems incomprehensible. Isn't this what the civil war was all about. The South wanted to count their slaves as part of the population but the slaves didn't have a vote. It seems that this is the problem again with the illegal hispanics. They are counted as part of the population but are without a vote, and basically treated as slaves. Seems like we are going down a slippery slope again.