Yes, Non-Citizens are Represented in Congress

If you recall your grade school civics, you already knew this.

The USA Today editorial board weighs in on the Trump Commerce Department’s announcement that it will include a citizenship question on the 2020 Census:

The actual Census, conducted every 10 years, is a sacred trust mandated by the Constitution to gain the most accurate count possible. This trust is sacred because it determines how many congressional districts each state gets and where those districts will be within each state. It is also used by states in their legislative redistricting efforts and by governments at all levels to make spending decisions.

Census compliance relies on public trust. Trying to ask the citizenship question of someone in every household in America is a move calculated to make people uneasy about participation.

Undocumented workers would be the most troubled by the question, particularly at a time when the administration is aggressively pursuing deportations. But legal immigrants, rightly or wrongfully fearful that they could lose their status, would also be wary.

These non-citizens need to be counted. They pay taxes, have kids in public schools and contribute in many ways to communities. The Supreme Court has even ruled that non-citizens count toward the drawing of political districts, even though they themselves can’t vote.

As Doug Mataconis noted in a follow-up post yesterday, California is already suing to stop this question from being asked; one suspects other states with large populations of illegal immigrants to join them, since both Congressional representation (and therefore also Electoral College representation) and federal funding is implicated.

Judging from both my Twitter feed and comments on OTB yesterday, this has quite a few folks who avidly follow US politics confused. For example, John430 wondered,

How [is it that an ‘under-count would threaten at least one of California’s seats in the House of Representatives’]? Do the illegal immigrants figure in the vote in California?

As Doug notes in his post,

The requirement and authority to conduct a Census is set forth in Article I, Section Two, Clause 3 of the Constitution which requires an “actual Enumeration” of the residents in each state for the purposes of apportionment of Congressional Districts. This apportionment number, of course, is also used to determine the number of Electoral Votes each state shall have in Presidential Elections from the time of final apportionment going forward until the next Census. In that respect, it’s important to note that the clause in question makes no distinction between citizens, legal residents (a concept that didn’t really exist in the law at the time the Constitution was drafted), and undocumented immigrants or others who may be in the country illegally. Indeed, since the entire purpose of the Census is to establish the actual population of each state, it’s self-evident that the Census is required to count everyone equally regardless of whether they are citizens or what their immigration status may be.

Further, as I noted in response to both John 430 and some in my Twitter feed, while most citizens are understandably vague on what the Constitution says about the Census, they ought be familiar with the basic principle that non-citizens are counted. Why? Because even the most rudimentary civics education includes at least a brief discussion of the so-called “3/5 Compromise.”

At stake were two issues: How many Representatives would each state get? And how much would each state they contribute to the Federal Treasury?

Because of the Great Compromise, the Senate would be comprised of two representatives from each of the several states, regardless of population. The House, by contrast, would represent states based on their population, with the proviso that all states would have at least one Representative. To determine the size of the House delegation from each state, then, required a census to count the number of people. These would be conducted in 1790 and every decennial afterward in perpetuity. How would slaves—who were decidedly not citizens—be counted? Non-slave states, naturally, wanted them to not count at all and slave states, also naturally, wanted them to count as full persons for that purpose.

In addition to various tariffs, Federal revenue would be derived from the several states on the basis of a head tax. The states would pay a set amount per individual resident, regardless of citizenship. Again, the question of how to count slaves was an issue with the sides being flipped here: slave states wanted the slaves to not count at all since they were just property and non-slave states wanted them to count as full people because, hey, more money.

Ultimately, the famous compromise solution was reached: slaves would count as 3/5 of a person for both representation and taxation.

Now, students will often remark as to how awful it was that slaves were considered a mere 3/5 of a person. I assure them that it’s much worse than that: slaves were 0/5 of a person; they were chattel with no more citizenship than a head of cattle. Their counting 3/5 for representation and taxation was a matter of accounting, not recognition of their humanity.

Of course, the 3/5 Compromise was obviated by the 13th Amendment, which ended slavery, and the 14th Amendment, which made anyone born on U.S. soil a citizen. Further, the 16th Amendment ended the head tax in favor of an income tax to be paid by individuals. The principle that the government represents all the people, not just citizens, remains intact.

FILED UNDER: *FEATURED, Government, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. KM says:

    If you recall your grade school civics, you already knew this.

    So optimistic, James…

    Look, in the end this is a political intimidation game that’s going to backfire spectacularly on the GOP. They are assuming that it will imitate illegals (and hopefully legal minorities who are still cautious) into under-representation believing this will hurt Dems. Yeah, Cali will take a hit but so will Texas and most of the Southern red states. Any state along the Rio Grande is looking to lose quite a bit of money and they’d be fools to think otherwise…..

    What to stop them from lying anyways? It’s not like the Census worker can check or would be willing to. You have a ton of houses to do, you have no access to any kind of databases and legally you aren’t allowed to ask jack, see jack or do jack about anything illegal you find in your census taking. Hell, you can’t even ask NAMES – just “do you reside here”? Frankly, if this question gets added I wouldn’t be surprised to see a push towards the illegal community to lie and say they’re citizens if asked to skew the data. What is the GOP gonna do about it? Spend billions more to go back and fact check??

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  2. What most people miss about the 3/5 Compromise is that it actually served to reduce the influence of slave-holding states in Congress. If slaves had been counted fully along with all other state residents, then the slave states would have had a larger presence in the House to match the dominance in the Senate that they held right up until the moment they seceded from the Union in 1861.

    In any case, as you note, the 3/5 compromise was nullified by the Fourteenth Amendment and the “head tax” was largely nullified by the Sixteenth Amendment. Part of the irony of this, of course, is that after Reconstruction African-Americans were fully counted in the population of the states of the former Confederacy even though, thanks to Jim Crow, poll taxes, and other measures, their political power in those states was largely non-existant. This gave the white population in the South significantly more political power than it otherwise might have had.

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  3. As for the Citizenship question on the Census Questionnaire the ironic thing is that this is as likely to harm the interests of many red states as it is states such as California. Texas and Arizona in particular would likely be adversely impacted if the predictions of critics that including the question would lead to an undercount among Latinos in general.

  4. Paul L. says:

    Evenwel v. Abbott and Trump v. ACLU ruled that Non-Citizens (Illegal Aliens) have superior Constitutional Rights to US citizens.

    Including voting.

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  5. Pete M says:

    “Texas and Arizona in particular would likely be adversely impacted if the predictions of critics that including the question would lead to an undercount among Latinos in general.”

    Seriously? These aren’t sanctuary states trying to attract illegal aliens for cynical political and ideological purposes; those states (like most) want the illegal aliens living among their citizens excluded from the political process and ultimately deported.

    So called ‘sanctuary’ political entities must be not be allowed to deliberately facilitate the political/demographic transformation of the republic. They need to be brought to heel, their leaders imprisoned.

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  6. matt bernius says:

    @Paul L., bless your heart.

    @Doug Mataconis:
    Great point about the census during reconstruction. I have not thought about that.

  7. Daryl's other brother Darryl says:

    @Paul L.:
    Precious.

  8. Timothy Watson says:

    @Doug Mataconis:

    Part of the irony of this, of course, is that after Reconstruction African-Americans were fully counted in the population of the states of the former Confederacy even though, thanks to Jim Crow, poll taxes, and other measures, their political power in those states was largely non-existant.

    To be fair, Section 2 of the Fourteenth Amendment created a mechanism to address this in advance but was never used.

  9. Neil Hudelson says:

    @Paul L.:

    No, it didn’t.

  10. matt bernius says:

    @Neil Hudelson:
    Please, don’t even try.

    Every time this sort of thing comes up, he posts the same crap. And then people (including Doug) point out that he’s fundamentally misreading the texts and misunderstanding how the legal system works. And that just makes him repeat it more firmly.

  11. James Joyner says:

    @Paul L.:

    Evenwel v. Abbott and Trump v. ACLU ruled that Non-Citizens (Illegal Aliens) have superior Constitutional Rights to US citizens. Including voting.

    No SCOTUS ruling ever has ever said anything remotely like that. Evenwel says that states may draw Congressional districts based on total population, which of course they may. Trump v ACLU hasn’t yet been decided but isn’t about anything like that.

  12. Daryl's other brother Darryl says:

    Dennison lost the popular vote. He’s trying to ensure that the Electoral College fluke he rode in on is easier, not harder.
    Again…Republicans have lost the popular vote in 6 out of the last 7 Presidential Elections. People are not buying what they are selling. The only way they can remain as a party is to try and work these shenanigans. Their extremist ideology is a losing cause. And it will only get more so with a rapidly changing demographic. That’s what all these things are about. Nothing more.
    Hopefully, in the near future, a real leader will show up in the Democratic Party and start to push back on this.

  13. MarkedMan says:

    @James Joyner:

    Evenwel says that states may draw Congressional districts based on total population, which of course they may.

    Talking Points Memo has an interesting take on this effort. According to them, the above case did not resolve whether it was permissible for the states to partition districts based on citizenship population. One of the reasons this hasn’t been tried is because the census doesn’t collect citizenship data. That might be the GOP strategy then. Implement this in the census, opening up the opportunity to enact the citizenship based apportionment in the future. If so, I find this worrying. It’s the first piece of actual legislative strategy (as opposed to tactics) I’ve seen out of the GOP in a long long time. Granted, it’s in service of a racist agenda, but this is the GOP we are talking about.

    Of course, it still may end up backfiring, but I doubt that would stop them. One thing I learned from the two times I lived in Southern states was just how many of the leaders there were willing to shoot holes in the bottom of the lifeboat because they couldn’t stand seeing the other guy dry.

  14. inhumans99 says:

    @Paul L.:

    Sigh…this is either the second time this week, or at least the second time in less than 7 days time that I have to ask you the following, what are you trying to say? Can you elaborate on why you feel an illegal immigrant has “superior” rights as afforded to them by the U.S. Constitution vs this legal citizen’s supposedly “inferior” rights?

    Also James, even though I was aware of the 3/5 compromise you did a great job summing things up creating a post that folks can easily grok.

  15. Stormy Dragon says:

    Yes, Non-Citizens are Represented in Congress. If you recall your grade school civics, you already knew this.

    You’re forgetting a significant number of Trump’s supporters were home schooled and were instead taught that congress is supposed to represent Jesus.

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  16. Stormy Dragon says:

    @inhumans99:

    Can you elaborate on why you feel an illegal immigrant has “superior” rights as afforded to them by the U.S. Constitution vs this legal citizen’s supposedly “inferior” rights?

    Because that’s what Sean Hannity told him to say yesterday, and Paul L. really wants that cracker.

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  17. grumpy realist says:

    @Paul L.: Dearie, I really really hope that at some point you try to act as your own lawyer in a case….

    You have about as much understanding of law as Cadet BoneSpurs does. That is to say, nil.

  18. KM says:

    @Pete M:
    You act like not counting those people somehow magically makes them disappear, not use services such as roads or firefighters and basically stop being humans in need of human things. Closing your eyes doesn’t make a problem go away and it won’t make those millions of souls you don’t think matter go away either.

    Like or not, someone physically present needs to be counted to accurately ensure properly funded government services. It’s incredibly stupid and it hurts citizens as well. After all, if you only count 10 million people in a state that physically holds 13 million, guess what – you’re getting shorted on your due because someone decided to be an asshat and deflate the real number of population consuming goods and services to score a cheap political point.

    That’s you Pete – you’re not getting your tax money’s worth of everything because some hater decided only citizens deserve to be counted despite that not being Constitutional. Your representation gets diluted, your schools become underfunded and overcrowded, etc. Even if you toss every illegal out afterwards, that number is set for 10 YEARS so try and put the hate aside and think rationally about this one, hmmm? Sheer self-preservation should see Republicans thinking twice about this one – you’re not just screwing over some random illegal, you’re screwing over yourself and your family for a decade. Better to overcount then under since you ain’t getting those needed extra funds outta DC without a tax hike once you realize whoops,you ran out of money because you didn’t count everyone!!

  19. Kylopod says:

    @inhumans99:

    Can you elaborate on why you feel an illegal immigrant has “superior” rights as afforded to them by the U.S. Constitution vs this legal citizen’s supposedly “inferior” rights?

    It’s a variant on an old right-wing trope: the charge that certain groups of people are being given “special rights.” Back in the Jim Crow era, arch-segregationists often described civil rights legislation as conferring “special rights” on blacks. Decades later conservatives used similar arguments against gay rights legislation–or really against any sort of proposal to help gay people in any way. (In 2011, around the time Uganda was attempting to make homosexuality a capital crime, Rick Perry criticized a White House memorandum calling for protections for LGBT people in other countries. Perry claimed the memorandum was “promoting special rights.”) It’s a reflection of how conservative reactionaries view everything as a zero-sum game. In their mind, you can’t help minorities without hurting the majority group, and therefore any attempt to do so automatically is an attempt to give something to the former at the expense of the latter. Railing against “special rights” or “superior rights” is almost always a complaint against giving the people in question any rights at all.

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  20. michael reynolds says:

    @Pete M:
    Dude if “we” actually wanted illegals gone they’d long-since have been evicted. Illegals come here for work, which they can get because why? Because business interests reject employer verification and serious enforcement. IOW, wealthy Republicans want a large pool of illegals. See if you can guess why.

    Illegals are not exploiting us, we are exploiting them. That’s been true from the start. The Business folks know this is true. Regular people don’t get it because the effect on them will be delayed and diffused: higher consumer prices, inflation, and an acceleration of automation. See, if Burger King can’t hire an illegal for $5 an hour they have to go looking for help amongst the native population which will not work for $5 an hour. How is Burger King to survive? By paying Americans the $15 an hour they will demand? Or by investing in robots who will never demand anything?

    There are entire categories of work that exist only because we have illegals keeping the labor costs down. If/when we replace them it will be with tech, a large portion of which will be designed and built in China, South Korea, Malaysia, etc… Without illegals and legal temporary migrants (braceros) the US will not have an agricultural sector. This will hurt red states and red portions of blue states.

    The obvious solution to illegals is an expanded guest worker program and serious employer verification. Easy peasy. But you may not like the consequences.

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  21. Kathy says:

    @Kylopod:

    Wait until they hear non-citizens, including “illegals,” are also entitled to due process and all the protections in the Bill of Rights.

  22. Timothy Watson says:

    @Kylopod:

    It’s a variant on an old right-wing trope: the charge that certain groups of people are being given “special rights.”

    It goes back to even the antebellum United States. Pro-slavery advocates actually said that if slavery was abolished, the freed slaves would become masters with the white people as slaves.

  23. Kylopod says:

    @Timothy Watson:

    Pro-slavery advocates actually said that if slavery was abolished, the freed slaves would become masters with the white people as slaves.

    That sounds familiar like I read it somewhere, but I didn’t remember it before. My reading on this subject began after the news of Rick Perry’s comments on protections for gay people in 2011. I immediately remembered Bob Dole having made similar remarks when he controversially returned a donation from the Log Cabin Republicans in 1996. I decided to look up the phrase “special rights” in a newspaper index, and that’s when I learned of its use by arch-segregationists like Harry Byrd and Richard Russell.

    Bigots always seem to find a way to make it sound like they’re the victims of persecution. My favorite example of all is the Richard Russell quote in protest against the Civil Rights Act of 1964, “In all of the sanctimony about protecting the rights of minorities, let us understand fully that the bill is aimed at what has become the most despised and mistreated minority in the country — namely, the white people of the Southern States.”

  24. Daryl's other brother Darryl says:

    @Pete M:

    those states (like most) want the illegal aliens living among their citizens excluded from the political process and ultimately deported.

    Were that to happen the economies of Texas and Arizona would fold like a cheap lawn chair under Donny Dennison’s fat arse.

  25. JKB says:

    Is there some argument that Congress specifically excluded questions of citizenship in the census? If not, then the question is entirely proper. It certainly would be easy to argue that it is necessary and proper for the Census to distinguish between citizens and non-citizens living in an area for policy purposes. Far more relevant than the 2010 question regarding dwelling ownership/rental/occupation.

    “…just the basics: name, gender, race, and ethnicity or each person, and whether the dwelling was owned, rented, or “occupied without payment of rent.”

    The authority of the Congress to conduct the census in whatever way it wishes, and thus to require that the forms be filled out is found in the Constitution itself, which notes:

    [The Census] shall be made … in such Manner as [Congress] shall by Law direct.

    The Congress is also authorized to ask various questions in the census aside from the basic headcount by virtue of this clause and by virtue of the Necessary and Proper Clause.

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  26. Just 'nutha ig'nint cracker says:

    @KM: As a resident of a blue state, I’d rather that he didn’t. Red states get too much Federal money as it is from being the equivalent of Trump’s miserable shurthole countries.

  27. rachel says:

    @Timothy Watson: To them, paying people for their labor = becoming their servant.

    Something about this attitude seems familiar…

  28. MBunge says:

    The citizenship question was apparently included on every long form census questionnaire from 1970 to 2000, was asked again on the American Community Survey in 2010, and was included on the short form or regular census before that through 1950.

    https://www.npr.org/2018/03/27/597436512/fact-check-has-citizenship-been-a-standard-census-question

    So, trying to suggest this is some sort of bizarre or extraordinary question is incorrect. You can certainly assign malicious motives to returning the question to the regular census because you folks already do that for anything done by the Trump Administration.

    It’s hilarious, however, to see this reaction because it only reinforces a point I’ve tried to make over and over again, which is that Trump is not the problem. He’s the result of the problem. The only reason anyone cares at all about the question is that we’ve spent decades with a broken immigration system allowing a completely unjustifiable number of undocumented non-citizens into the country. And before anyone race-monger brings it up, you CAN justify allowing this number of non-citizens into the country. It’s called “immigration” and it generally has a lot of positive effects. You can’t justify the lawless way it’s been done.

    Mike

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  29. michael reynolds says:

    @MBunge:
    You know the parable of the mote and the log?

    Matthew 7:3-5 King James Version (KJV)
    3 And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?

    4 Or how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam is in thine own eye?

    5 Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eye.

    There is a criminal in the White House. You not only support his crimes, you actively work to defend his criminal activities, lie to defend same, excuse his criminal activities and encourage the cover-up of his criminal activities.

    TL;DR: STFU you ridiculous hypocrite.

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  30. KM says:

    @MBunge:

    The only reason anyone cares at all about the question is that we’ve spent decades with a broken immigration system allowing a completely unjustifiable number of undocumented non-citizens into the country.

    The only reason anybody cares is because it’s being used a political tool instead of a data gathering point and will cause the census to be inaccurate. Look Bunge, we *need* these numbers to be as accurate as possible because they get used in all sorts of calculations for the next decade. This has a real world impact that goes beyond talking points – there’s a reason the census is supposed to be kept apolitical.

    This of it this way: a bridge needs to be repaired in the near future. Based on the estimated amount of usage – 10mil or so per year – repairs are budgeted for X amount in 5 years. Only…. the usage is *15mil* because the population estimate was off and the wear-n-tear on the bridge gets really bad in 3 years. Now you need emergency repairs with no money which usually means either debt or a tax hike.

    This has nothing to do with “lawlessness” and everything to do with not starting sh^t before an important project goes down. If the question was just that, I wouldn’t care but it ‘s being used to silence and frighten a segment of the population we really do need to count in order to make sure everybody’s lives don’t suck. Scared people don’t tell the truth and that’s what the census needs in order to be more then just a giant market survey.

  31. Tyrell says:

    @Timothy Watson: How could we forget to mention the great compromiser: Henry Clay! A statesman who managed to stave off the Civil War for decades.
    The South threatened to secede when Jackson (hero of New Orleans) was president. “Ole Hickory” told them he would burn the South if they tried to pull that. And there most likely would not have been a Civil War. Interesting.

  32. JohnMcC says:

    @Tyrell: Oh, my friend, the Andrew Jackson story you are reaching for is much better than you remember. I won’t take the space here but you should look it up. And the issue wasn’t ‘secession’ it was ‘nullification’, BTW.