Josh Blackman, an incredibly prolific young law professor at South Texas, makes an intriguing argument with regard to the ongoing controversy, now before the US Supreme Court, as to whether the Census may include a citizenship question: the Fourteenth Amendment may actually require it.
His reasoning is complicated but here’s the gist:
While the census counts the “whole number of persons” to establish the “actual enumeration,” Section 2 of the Fourteenth Amendment requires an additional piece of information: “the whole number of male citizens twenty-one years of age in such State.” (I will table for now whether subsequent amendments—the Nineteenth Amendment and Twenty-Sixth—impliedly modified that clause to also require a count of the number of female citizens over the age of eighteen.)
If this argument is correct, then the government would not only be justified in counting the number of citizens in a given state; Section 2 would require the government to have this information available, in the event that a state deprived males (and females) of the right to vote. This is an obligation: the representation “shall be reduced.” And Congress would not be able to enforce Section 2 without an additional enumeration based on citizenship. An estimate would not suffice.
Moreover, the number of citizens must be counted in advance. It would subvert the operation of Section 2 to wait until the next decennial census to count citizens. The waiting period could be as long as ten years. This information need not be collected in conjunction with the census. But it would be reasonable for the government to utilize the census process to collect this additional information. And once the government knows the total number of citizens, it can then discount minor citizens.
— The Volokh Conspiracy, “Is the Government Required to Count the Number of Citizens in Each State?“
Blackman, who has published voluminously on Constitutional law and testified before Congress and elsewhere as an expert raises this as an inquiry—not included in any of the amicus briefs that accompanied the current case—and not as a definitive argument. Eugene Volokh passes it along as interesting but sufficiently outside his expertise that he’s not going to pass judgment.
While I had quite a lot of coursework in Constitutional law and related matters in my undergraduate and masters studies three decades back, I’m considerably less qualified than either Blackman or Volokh to render judgment on this. But it’s an interesting and plausible argument that I’ve not seen elsewhere.
Looking to see if I could find others elsewhere addressing the point—I couldn’t—I stumbled on an interesting piece from political scientist James Piereson, currently president of the William E. Simon Foundation and a senior fellow at the Manhattan Institute. It’s long, covering a wide range of related issues and a survey of Supreme Court cases on the matter. But here’s the bit that intrigued me:
In Evenwel, the Court ruled that the state of Texas could use population as the basis for legislative districts, in part because, as the state maintained, detailed information on citizenship and registered voters was unavailable or too unreliable to be used for legislative districting and the proposed alternatives to population were unworkable. But the justices, following the precedents established in Reynolds and Burns, stopped short of saying that states must use population as the standard, thus leaving the door open for states in the future to use some other metric (e.g., the number of citizens or registered voters) as the basis for representation. As Justice Samuel Alito wrote in a concurring opinion, “Whether a state is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.” Justice Clarence Thomas elaborated on this theme in writing in a separate concurrence that states should be left free to experiment with other metrics, such as “total population, eligible voters, or any other nondiscriminatory voter base.” The Supreme Court has thus left up in the air the issue of whether representatives at the state and local levels must be allocated on the basis of total population, citizenship, eligible voters, or some other metric.
In response to Evenwel, several states have taken steps to apportion legislative districts on the basis of citizenship. Missouri recently approved a constitutional amendment that would accomplish this goal. A similar measure is under consideration in Nebraska, though that state (like Missouri) has a small number of legal and illegal immigrants, in comparison with such states as California, Florida, and Texas. In any event, the issue is beginning to move in states across the country. In the likely event that some states move further in this direction, they will certainly face lawsuits challenging those moves, with the Supreme Court being asked eventually to resolve the unanswered questions from the reapportionment cases.
This is one reason that the citizenship question on the U.S. Census now carries so much weight: it will provide a factual basis to test claims about the appropriate foundations for legislative and congressional representation. If the citizenship question goes forward, state governments will have the information they need to apportion legislative and congressional districts on some basis other than total population.
— City Journal, “Citizenship and the Census“
It’s interesting that there are still interesting, unresolved legal questions surrounding the Census—part of the original Constitution in place since 1789—and the 14th Amendment—ratified in 1868—but there are.
Piereson’s piece ultimately gets to a philosophical question: do we actually want citizenship to matter? But that’s a question for a different discussion.
Hat tip: Dave Schuler
