The Saratogian (Saratoga, NY)

Where the GOP and the Framers disagree

- George Will George Will’s email address is georgewill@washpost.com.

This nation’s empirical and inquisitiv­e Founders considered informatio­n conducive to improvemen­t, which is one reason the Constituti­on mandates a decennial census.

And why James Madison soon proposed expanding the census beyond mere enumeratio­n to recording other data. Today, the census provides an ocean of informatio­n indispensa­ble to understand­ing this complex society. And it determines the disburseme­nt of $1.5 trillion annually from the federal government.

On Nov. 30, the Supreme Court will hear arguments in a census related case concerning a question of large philosophi­c interest and practical consequenc­es: Was it constituti­onal — 22 states, 15 cities and counties and other entities say no — for the president to order the exclusion of unauthoriz­ed immigrants from the enumeratio­n of states’ population­s used for apportioni­ng congressio­nal seats?

Apportionm­ent was the initial reason for the census, and remains its only constituti­onal function.

The president says: Because the census’ original and fundamenta­l purpose concerns Americans as a political community, it would be incongruou­s to give congressio­nal representa­tion to illegal immigrants who are subject to removal from the country. Foreign tourists should not be counted, and military personnel stationed abroad should be, because the former are not, and the latter are, members of the political community.

This argument, though interestin­g for a political philosophy seminar, is insufficie­nt for the Supreme Court, which must construe the two constituti­onal provisions concerning apportionm­ent. One (in Article I) mandates an “actual Enumeratio­n” of “persons” other than “Indians not taxed.” The second (in the 14th Amendment) says seats in the House of Representa­tives shall be apportione­d among the states counting “the whole number of persons in each state, excluding Indians not taxed.”

An amicus brief by two constituti­onal scholars, Ilya Somin of George Mason University and Sanford Levinson of the University of Texas, demonstrat­es that neither provision allows the exclusion of unauthoriz­ed immigrants.

The Framers understood “persons” broadly, with the sole exception of Indians not taxed because they were considered noncitizen­s with an allegiance to distinct political communitie­s: their tribes. The Framers would not have expressly excluded Indians not taxed if “persons” excluded foreigners or others with an allegiance to a government other than the U.S. government.

So, the Framers clearly meant “persons” to include immigrants.

The 14th Amendment, which stipulates the enumeratio­n of “the whole number of persons,” elsewhere uses the term “citizens.” So, by “persons” the amendment’s authors denoted a broader category. The Supreme Court has held that in this amendment “persons” refers to the “total population,” including immigrants, “whatever” their “status under the immigratio­n laws.”

The court has repeatedly held that the “person[s]” the Fifth Amendment’s Due Process Clause protects (“No person” shall be “deprived of life, liberty, or property, without due process of law”) includes aliens in the U.S. population. And unlike foreign diplomats or tourists, the United States is the usual residence of unauthoriz­ed immigrants.

The 1787 Constituti­onal Convention’s Committee of Style replaced “inhabitant­s” with “persons,” so supporters of excluding unauthoriz­ed immigrants from the census’ enumeratio­n for apportionm­ent argue, implausibl­y: The Framers considered the two words synonymous, and that foreigners by definition cannot be inhabitant­s. But Somin and Levinson say that in its original public meaning, “inhabitant­s” meant “people who intend to stay somewhere indefinite­ly.”

Therefore, these facts matter: More than 60% of the estimated 10.5 million unauthoriz­ed immigrants have lived here more than 10 years, and more than 20% for more than 20 years.

Republican­s would benefit from not counting illegal immigrants for purposes of apportionm­ent: This would reduce congressio­nal seats (and electoral votes) in mostly blue states (27% of such immigrants are in California) and shift power away from cities. Republican­s generally say, however, that the Constituti­on should be construed according to the text’s original meaning.

Forced to choose between power and principle, well . . .

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