According to the Associated Press, Senate Democrats have blocked an effort made by Louisiana Sen. David Vitter to require a citizenship-related question in next year’s census in order to exclude illegal immigrants from population totals used in reapportionment of congressional districts.
The report says that critics of Vitter’s proposal have made two arguments — first, that including such a question would discourage immigrant participation in the census and be very expensive in doing so; and second, that “it’s long been settled law that the apportionment of congressional seats is determined by the number of people living in each state, regardless of whether they are citizens.”
While I am simply not in a position to read minds of illegal immigrants, nor am I capable of assessing the added expense of excising census reports from non-citizens, unfortunately I think the second argument made by Vitter’s critic holds significant water. While most of the debate over the census and reapportionment has centered on actual enumeration versus population estimates, the resounding majority of evidence shows that the founders intended that all residents be counted.
The third clause of Article I, Section 2 is fairly straight-forward: “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.” The Constitution says nothing to distinguish citizens from non-citizens, nor do any of the contemporaneous writings from our founders.
Alexander Hamilton wrote, in Federalist No. 36, that “an actual census or enumeration of the people must furnish the rule, a circumstance which effectively shuts the door to partiality or oppression.” George Washington, in a 1791 letter to Gouverneur Morris, cited the advantages of and need for an actual count rather than an estimation by arguing that an estimate “of the number of inhabitants which would probably be found in the United States on enumeration” was likely too large. And even the Census Act of 1790 stated unequivocally the requirement of “a just and perfect enumeration and description of all persons resident within [census takers'] districts.”
Shutting the door to partiality. Inhabitants. All persons resident. I don’t like it any more than you do, and I welcome anyone more well versed in the Constitution and our founders’ writings to contradict me, but on this issue it appears that the Democrats could be right — any effort to exclude certain residents, illegal or not, could be questioned as unconstitutional.
Of course, our founders likely did not consider a rampant illegal immigration problem, or the idea that one of the two primary political parties would work to preserve the illegal immigration population for their own political gain. But as a constitutionalist, I cannot in right mind expand–without other evidence–the scope and meaning of Article I, Section 2. Hopefully, with a little more research, I’ll be able to down the road. For now, however, founders’ intent seems to spell difficulty for the GOP and David Vitter.
It’s a shame, and it is something which absolutely must be revisited. I have serious concerns about the 2010 census, and the use of illegal immigrant populations for reapportionment purposes is only the tip of the proverbial iceberg.