“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.

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.

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.

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

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

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?

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.

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.

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?

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.

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.]

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.

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.

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..