From the Brennan Center for Justice blog

By Myrna Pérez – 08/11/09

In the inaccurately titled opinion piece ("Our Unconstitutional Census") published on August 9 in the Wall Street Journal, Messrs. Baker and Stonecipher, a constitutional law professor and pollster respectively, falsely claim that the current practice of counting undocumented persons in the census for the purpose of apportionment is unconstitutional.

The "Census clause" or sometimes called the "Enumeration clause" is found in Article I, 1, § 2, cl. 3 of Constitution.  After taking into account the removal and additions that have occurred with later amendments, that clause reads as follows:  "Representatives . . . shall be apportioned among the several States . . . according to their respective Numbers . . . . 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."  Further, Section 2 of the Fourteenth Amendment states that "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 Constitution uses the word "numbers" or "persons" -- not "citizens," or "legal residents," or "those lawfully present" as the authors suggest.  Moreover, the Constitution wholly and explicitly empowers Congress to sort out the details.  The express delegation of the responsibility to Congress makes it odd that part of their opinion piece casts Congress fulfilling its constitutional obligations to make the policy determinations guiding the census as a bad thing.   

In a move that is sure to irk "strict constructionists" the authors ignore the plain text of the Constitution and cite enabling legislation for support, arguing that the name of first census act used the word "inhabitant" and that the contemporaneous definition of that word were persons entitled to the privileges conferred by the state, which would exclude unlawful residents.  The word "inhabitant," is not used in the Constitution's Census clause, but is instead used when describing qualifications of Representatives and Senators.  In the Qualification clauses, the word "inhabitant" probably fairly means what the authors say it means.  But, it is improper for the authors to import a word from other sections of the Constitution into a clause where the framers deliberate and purposely omitted that word and claim that the word is controlling. 

Even if Congressional understanding of the Constitution trumps its plain text, the first census act actually suggests reaching a contrary conclusion because that act counted slaves and non-white free persons.  It required the district marshals to swear or affirm an oath that they would undertake a "just and perfect enumeration and description of all persons resident within my district."  Those facts mean that Congress at least had a more expansive view of "inhabitants" than the authors would allow, and as the Constitution indicates, Congress gets to make the call as to the details. 

The authors invoke the Wesberry v. Sanders principle that there should be rough equivalents of voting citizens in state legislative districts.  Justice Rehnquist, however, in an opinion in the mid-90s rejected the application of the Wesberry principle to Congress when conducting the census.  He also noted that the Court had reached the same conclusion on two prior occasions because of the latitude given to Congress under the Constitution and because the districts at issue in Wesberry were intra-state, but federal apportionment required interstate review which could not be done with the same precision.  Even the Supreme Court disagrees with the authors.   

There are good policy reasons for including all residents in a state when conducting apportionment.  A district's representation affects everyone in the district; moreover a district's representation is impacted by everyone in the district.   

The authors may disagree that apportionments should be influenced by enumerations of undocumented persons, but it is false that the current practice of doing so is unconstitutional.