Evenwel v. Abbott and the History of the Census Clause

April 5, 2016

Monday’s narrow decision by the Supreme Court in Evenwel v. Abbott was a disappointment for constitutional lawyers hoping for a lively discussion of the “one-person, one-vote” principle imputed in the Fourteenth Amendment. The unanimous court refused to broach several important questions raised by plaintiffs as well as the supporting briefs, including the constitutionality of counting illegal aliens in the district-drawing process, a problem that’s particularly important in the plaintiffs’ home state of Texas.

When the Reconstruction Congress debated the changes to the Census Clause, later enshrined in Section 2 of the Fourteenth Amendment, there was concern about the distortive effects of total population-based apportionment. Senator John Sherman of Ohio, for instance, refused to accept that a state with “a very large element of unnaturalized foreigners” should be given political power at the expense of other states. For Sherman, what was fair and correct was a system that “puts a citizen in one State on a footing of precise equality with a citizen in every other State.” In the end, however, it was deemed that a person’s alienage was not to prevent him or her from being included in the 10-year census.

Illegal aliens, as opposed to “unnaturalised (legal) foreigners”, however, were never contemplated in the minds of Census Clause or Apportionment Amendment-drafters, specifically with regards to being granted representation and apportionment “rights.” Formerly with the Immigration Reform Law Institute, legal historian Patrick J. Charles has written extensively about this topic with special focus on the “doctrine of allegiance.” The doctrine, which is embodied in Congress’s plenary power over naturalization, sets out that an alien must submit to the laws of the his or her host-nation and, in order to be subject of those laws, must declare his or her intention to lawfully settle. Says Charles, “when aliens only partially submit to the laws of their host nation they violate the first rule of the law of nations concerning emigration—the doctrine of allegiance and submission of the government.” The drafters, according to Charles, understood that political privileges, like apportionment and representation, were “subject to allegiance and subjecting one’s self fully to the laws” and further that without such submission the alien was still subject to the laws of their home jurisdiction.

When the Fourteenth Amendment was debated, Senator Luke Poland of Vermont stated that legal aliens should be apportioned observing that they are “subject to [the State’s] laws [and as such] they must all share in its burdens, and they are all interested in its legislation and government.” Clearly, this does not apply to those who’ve circumvented our democratically-enacted immigration laws. As Charles argues it is “outside the bounds of constitutional logic for a class of foreigners to be entitled to the full protection of the Constitution, especially the political privilege of apportionment, if they do not subject themselves fully to the laws” (emphasis added). Illegal aliens, by their very existence in the country, do not subject themselves “fully to the laws.” Their very presence violates the law.

The constitutional history of the Census Clause further affirms this view. The reference to “persons,” as in the “whole numbers of persons in each State” that shall be counted, was intended to include those who had a “meaningful connection” to the state and that the state’s “number”, or population, only included persons residing there with a certain degree of stability. The Manual of the Constitution of the United States by Judge Timothy Farrar was the first treatise to analyze the Fourteenth Amendment and in it the judge asserted that “other persons” in the Census Clause included only aliens “legally admitted, or otherwise constituted as such.” It was the “legally admitted” who were “a part of the ‘people of the State,’ to whom the representation is assigned, and on whose numbers it is apportioned.” Writes Judge Farrar, the Constitution’s “persons” were not to “mean everybody, without regard to anything but their humanity and personality.” “They must bear some relation to the State.”

The Census Bureau has never included everyone, such as tourists, in the counting process. Census-counts outline the nation’s political layout and taking a “snapshot” of the population in order to perform this important task is meant to include persons who are to remain in the country for a substantial amount of time, i.e., for the 10-year period of the census’s impact. But as legal academic Charles Wood writes, such a practice “is far more dubious if individuals whose futures here are so tenuous are nevertheless included in the snapshot.” That illegal aliens by federal and many state’s law are prohibited from obtaining work and receiving welfare (most types) evidences such “tenuousness.” Also, that the impact of a census-count is so long further shows that the inclusion of illegal aliens in apportionment is not intended as Congress could pass a law within that long period that stiffens the immigration enforcement or increases deportations. Any literal reading of “persons” in the Census Clause to include illegal aliens is therefore incorrect.