In the LA Times today, Richard Greener and George Kenney haul out a familiar conservative hobbyhorse: illegal aliens are counted in the census and this produces an unfair apportionment of congressional districts:
The reapportionment of today’s static 435 seats according to census results would be a respectable example of representative democracy if each individual included in the count had a vote. But, just as in 1790, the system remains badly fractured and fundamentally unfair.
Hmmm. Kids and (in some states) felons can’t vote. But we count them. In the 19th century women couldn’t vote. But we counted them. In 1790 residents without property couldn’t vote. But we counted them. Hell, slaves couldn’t vote either, but the infamous 3/5 compromise shows that the founders deliberately agreed to count them in the census for purposes of congressional representation anyway. So voting status is a pretty poor argument for not counting non-citizens. But even if you agree with Greener and Kenney for other reasons, their solution is deliberately obtuse:
The good news is that the Constitution leaves the manner of conducting the census, and the apportionment of the House, up to Congress. Passing a census reform law should be a relatively simple fix, if we have the leadership and the will to do so.
Would this work? Let’s go to the text of the constitution:
[Article 1 Section 2]: 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.
[14th Amendment]: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….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 text is pretty clear: citizens is used in some places and persons is used in others. And persons means just what you think it means. So if you want to change the way non-citizens are counted in the census, Congress isn’t enough. You need a constitutional amendment. Because, in this case, both the plain text of the constitution and the intent of the framers is quite clear. From a CRS report written earlier this year: “The Framers adopted without comment or debate the term ‘persons’ in place of the phrase ‘free citizens and inhabitants’ as the basis for the apportionment of the House….During the debate on the Fourteenth Amendment, Congress specifically considered whether the count was to be limited to persons, citizens, or voters. The term ‘persons’ was used instead of ‘citizens’ due, in part, to concern that states with large alien populations would oppose the amendment since it would decrease their representation.”
If Greener and Kenney want to change the way states are represented because they’re afraid the Mexican government might collapse, “sending hundreds of thousands of refugees across the border,” that’s fine. But pretending this is something Congress can do on its own is just populist demagoguery. They know better.