Friday, March 30, 2018

Appropriate Census Questions and the Fourteenth Amendment

As often happens, I am posting what my husband could post in more detail, had he the time and inclination.

There is much agitation at present about the plan to add a question to the census concerning citizenship status. This is not a new idea. In 1950, every household was asked about citizenship. For much of the time since then, the long form census questionnaire (received by a smaller sample) included the question as well. However, that history doesn't answer the question of whether asking about citizenship is constitutionally appropriate. (What, we're supposed to consider the Constitution in figuring what questions belong in the census? Well, yes, since our federal government is supposed to exercise only enumerated powers, quaint as that restriction seems to many.)

Before the Fourteenth Amendment, the language of Article I, section 2 provided that "Representatives  . . . shall be apportioned among the several States . . . according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons . . . three fifths of all other Persons." It went on to prescribe the schedule for "the actual Enumeration." Note the use of the term "persons," and the inclusion of three-fifths of the number of slaves, who were obviously not voting citizens.

The Fourteenth Amendment, section 2, replaced this language with the following: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State . . . ." We're still counting persons, not citizens. It went on, however, into new territory: "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, shall be 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 Nineteenth and Twenty-Sixth Amendments extended the right to vote to female citizens and citizens eighteen to twenty years old, respectively.) There is no mention of, and hence no change in, the language setting out the schedule for counting "persons," aka the census. It seems a logical inference that, since the new language requires knowing how many citizens with the franchise there are in the state as well as which of those citizens are being prevented from voting, the census is the appropriate tool to find that out. Based on those numbers, a state that prevents citizens entitled to vote from voting should find its number of members in the House of Representatives cut back in proportion to those so prevented.

It is thus not only appropriate, but necessary that the census, while continuing to count "persons" resident in the states, also count citizens entitled to vote, and quite possibly inquire whether any of those citizens have been unlawfully barred from the polls.