Currently before the U.S. Supreme Court is the issue of whether including a question concerning citizenship in the 2020 census is constitutional. Democrats object to the question and have sued the Trump administration. It is an issue that goes directly to what the Constitution says.
Article I, Section 2 of the Constitution, ratified in 1788, established the foundation for the decennial census. The section defines who would be counted and who would not. Only “the whole number of Free persons, including those bound to Service for Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”
A reading of the Constitution and contemporary documents indicates that the founders understood the concept of citizenship but never explained exactly what the term meant. Constitutional scholars believe they accepted the British definition that being born in Britain meant that the person was British. Therefore, those born in the U.S. or the colonies would be citizens. In 1790, the Congress expanded that concept when it determined that children born to Americans abroad would be considered natural born citizens.
So, at the time of ratification of the Constitution, the term citizen was used, but not in a legally defined context. Article II, Section 1, which establishes the criteria for president, however, clearly makes citizen a more restrictive category than person.
Article I, Section 2 also states that “Representatives and direct Taxes shall be apportioned among the several States … according to their respective numbers.”
In Federalist Paper 58, James Madison wrote that “The unequivocal objects (are) the apportionment of representatives to the number of inhabitants.” Significantly, he added that “one branch is a representation of citizens.” In context, he was referring to the House of Representatives.
Madison’s use of the more restrictive word citizen clearly ties apportionment of representatives directly to the census of citizens, not to the broader terms persons or inhabitants.
Madison has been described as the “Father of the Constitution” and was the driving force behind ratification of the Bill of Rights. His views cannot be taken lightly.
Not until Amendment XIV, Section 1 of the Bill of Rights was ratified in 1868 did there become a constitutional definition of U.S. citizenship: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. … No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
The first U.S. census was conducted in 1790. In addition to asking the name of the head of household, it asked six questions: the number of free white males under 16, those age 16 and above, the number of free white females, the number of other free persons and the number of slaves.
As Madison stated, apportionment is to be a “representation of citizens.” The number of citizens is established by the census. Including undocumented aliens – non-citizens – in the census violates the specific intent of the founders.
Allowing undocumented aliens to be counted skews the numbers when it comes to apportioning congressional representatives and allocating money to the states. To count undocumented aliens gives non-citizens a say in how “representation of citizens” is determined.
States with large numbers of undocumented aliens will unconstitutionally gain members in the House of Representatives, thus robbing the citizen-voters in other states of their rightful representation. There are only 435 representatives. One state’s illegal gain is another state’s constitutional loss.
Including undocumented immigrants in the census will unjustly bestow additional political power to states where lax enforcement of immigration laws attract large populations of undocumented aliens.
Changes in apportionment of House members also changes the number of votes states get in the electoral college which ultimately determines who is elected president. It is therefore possible for individuals who are prohibited from voting to actually swing the balance of who becomes president of the United States.
The U.S. has undertaken 23 decennial censuses. Thirteen of those have had questions regarding citizenship, the latest being in 2000. The precedent for the question has been established. That certain groups can be excluded from the count is in the Constitution. That counting non-citizens is an abridgment of the right of citizens to determine their fair share of representative apportionment. The intent of the founders is clear.
Democrats do not care. A Pew Research Center study found that 31% of undocumented immigrants identify as Democrats. Only 4% identify as Republicans.
Is there any wonder as to why Democrats oppose any measure that might restrict illegal aliens from influencing elections?
The U.S. Supreme Court will rule on the question later this month.
Rich Kiper is a Leavenworth Times columnist.