In our Politically Correct age, the fact that the U.S. Constitution counted African Americans as "three fifths" of a person for the purpose of apportionment is regularly bemoaned.
But it's less noted that those who wanted blacks to be counted as full persons did not do so out of egalitarian principle. They were delegates from the Southern states aiming to increase their political power by having slaves counted.
Similarly today, the Left wants to use the Census to entrench its political power by ensuring that as many illegal aliens as possible get counted. This would increase Congressional representation, because apportionment is on the basis of population not citizenship, skew the Electoral College to immigrant-impacted states, and (of course) mean yet more taxpayer-funded goodies for Hispanics.
The Census Bureau actively promotes this effort. It wants U.S. Immigration and Customs Enforcement (ICE) to suspend immigration enforcement during the count.
In 1980, 1990 and in 2000, the late unlamented Immigration and Naturalization Service did suspend immigration raids during the census. Back then, there were significantly fewer illegal aliens, and even less enforcement of our immigration laws. Suspending enforcement today would be an even bigger affront to the rule of law than it was in the last three censuses. Fortunately, Americans are much more outraged over illegal immigration, so it is unlikely this will become policy.
But the Bureau will spend an estimated $300 million to maximize the number of immigrants counted. Its tools include Public Service Announcements in English and Spanish, "Immigrant Awareness" posters, and multilingual survey forms.
More disturbingly, "Part of the outreach will occur through Census Bureau alliances with institutions such as churches and ethnic organizations to inform communities and overcome fears of working with the federal government." [To accurately count immigrants, 2010 census will include outreach in more languages, by Juliana Barbassa, Associated Press, October 14, 2009]
One of these "alliances" is with the notorious ethnic lobby National Council of La Raza allies. According to La Raza itself:
"In 1990 NCLR became one of five national organizations to form the first group of "Census Information Centers." (CIC) The CIC program partners, now expanded to include 60 organizations in the 50 states and in Puerto Rico, work with the U.S. Bureau of the Census to:
Educate members of their community on how to access and use Census data.
Motivate and train non-traditional data users to use Census data and apply the data to their needs.
Work collaboratively with the Census Bureau to support ongoing data collection activities and to raise awareness about the importance of Census data.
"As a result of its long relationship with the Census Bureau, NCLR has been able to produce numerous analyses, fact sheets, and other products that include social and economic data on the Hispanic population, and to increase dissemination of Census data to the members of the NCLR affiliate network." [NCLR Census Information Center, National Council for La Raza's website]
It goes without saying that groups like La Raza have every incentive to do what they can to overcount the number of Hispanics. Until they were thoroughly exposed and disgraced, ACORN was also a partner with the Census.
Not all Open Borders groups want Hispanics to participate in the Census. The National Coalition of Latino Clergy & Christian Leaders is calling "for a boycott, asking for non-cooperation with the Census, until there's just and comprehensive immigration reform and legal status for everybody." [Census Boycott Splits Latinos, by Marcello Ballvé, New America Media, September 23, 2009]
Nonetheless, the bulk of the organized Hispanic lobbies are on board with working with the Census Bureau.
The New York Times recently ran an editorial headlined "How to Waste Money and Ruin the Census". [October 19, 2009]. Was it opposed to giving hundreds of millions of tax dollars to help left wing groups count illegal aliens—and in turn get billions of dollars in federal funding?
Of course not! It was referring to a common-sense solution to the illegal immigration problem. Senators David Vitter (R-LA) and Robert Bennett (R-UT) have proposed an amendment to the census appropriation bill requiring that the Census ask residents being counted for their citizenship and immigration status, and that Congress not include non-citizens for the purpose of apportionment.
According to the NYT, "Mr. Vitter's demand would delay the count, could skew the results and would certainly make it even harder to persuade minorities to participate."
Some critics also claim that the Vitter-Bennett amendment will violate the 14th Amendment:
"Critics also point out that the Constitution only says the government must perform an 'enumeration' and says nothing explicitly about citizenship. Some groups also see the Vitter-Bennett amendment as a direct affront to the 14th Amendment, which discusses 'equal protection' and that House seats will be apportioned to the states 'according to their respective numbers, counting the whole number of persons in each State.' Nothing explicit there about citizenship, they say." [Citizenship and the Census, by Ed O'Keefe, Washington Post's Eye Opener Blog, October 15, 2009]
Of course, this purported 14th Amendment problem could be solved straightforwardly by a constitutional Amendment. And indeed in the beginning of the year, Rep. Candice Miller (R- MI) proposed "an amendment to the Constitution of the United States to provide that Representatives shall be apportioned among the several States according to their respective numbers, counting the number of persons in each State who are citizens of the United States."
Rep Miller only got 16 co-sponsors. But given the heightened interest in the issue, the amendment could gain much more traction in the coming weeks.
Of course, any constitutional amendment is a struggle to get ratified. But the struggle itself would force politicians to stand up and be counted on the issue.
Furthermore, it is not even clear that a Constitutional Amendment is necessary to bar non-citizens from being counted. Article I, Section 2 of The Constitution states
"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons"
Section 2 of the 14th Amendment abolished the three fifths clause and added,
"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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
The first sentence is pretty straightforward, but the second sentence needs to be placed in historic context. When the Amendment was written, blacks were not guaranteed the franchise by the Federal Government. Both Southern and some Northern States still denied African Americans the right to vote. As the South had no say in the 14th Amendment, if Mississippi barred African Americans voting, it would lose 1/3 of its representatives, but the effect would be negligible if Iowa were to do the same.
The 15th Amendment made this obsolete by guaranteeing the franchise regardless of "race, color, or previous condition of servitude" (i.e. slavery). But the fact that the 14th Amendment still excluded Indians or disenfranchised blacks for the purposes of apportionment contradicts the notion that the Constitution demands all residents must be factored in.
The courts have not decided directly on this issue. But the Seventh Circuit Court of Appeals ruled in the case Barnett v. City of Chicago (1998) that giving non-citizens "virtual representation" diminishes the voting rights of citizens.
The case dealt with the redistricting of Aldermanic wards in Chicago along racial lines. The Voting Rights Act is currently interpreted to require some gerrymandering of districts to ensure that ethnic groups are represented. In Chicago, Latinos had a lower percentage of majority Hispanic wards than their share of the population of the city.
But, writing for the majority, Judge Richard Posner concluded that the non-citizen Hispanics should not be considered because,
"Neither the census nor any other policy or practice suggests that Congress wants noncitizens to participate in the electoral system as fully as the concept of virtual representation would allow, although permanent resident aliens are permitted to make federal campaign contributions, 2 U.S.C. sec. 441e, as are certain other nonvoters. The right to vote is one of the badges of citizenship. The dignity and very concept of citizenship are diluted if noncitizens are allowed to vote either directly or by the conferral of additional voting power on citizens believed to have a community of interest with the noncitizens—that being the premise of the Latinos' claim in this litigation." [Richard Barnett, Personally, Etc., Et Al. V City Of Chicago, Et Al. And Carole Bialczak, Richard Posner for the US 7th Circuit Court of Appeals, Decided April 1, 1998]
The Barnett decision does not address U.S. Congressional apportionment. But the principle supports Sen. Vitter's proposal.
Like most 14th Amendment problems, this is a grey area. The framers of the Amendment were dealing with the difficult issue of integrating former African American slaves into society. They did not anticipate tens of millions of illegal aliens swamping our country, still less that the combination of legal and illegal immigration from non-traditional sources would have shifted the racial balance to the point where America's historic white core—the "posterity" for whom the Founding Fathers, all of them without exception white, said in the Constitution's Preamble that they sought to ensure the "Blessings of Liberty"—is about to be forced, by public policy, into a minority.
But it's an argument that patriotic immigration reform lawyers should explore.
In the meantime, I have a modest proposal on how to deal with the problem that illegal aliens pose for the Census: Deport them before we start counting!
"Washington Watcher" [email him] is an anonymous source Inside The Beltway.
