Immigration

My LA Times Op Ed on Why the Constitution Requires Including Undocumented Immigrants in House Reapportionment Counts

The issue is currently before the Supreme Court in the case of Trump v. New York.

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Earlier today, the LA Times published my op ed about the key issue at stake in Trump v. New York, a case currently before the Supreme Court, involving a challenge to the Trump Administration's plan to exclude undocumented immigrants from the  2020 apportionment counts for the House of Representatives. Here is an excerpt:

The Supreme Court recently decided to hear Trump v. New York, a case challenging the Trump administration's decision to exclude undocumented immigrants from the 2020 census counts that would be used in apportioning House seats.

There are important issues on which the Constitution is vague. But not in this case. The constitutional text is clear and the Trump administration's position is wrong.

The Constitution, in Article I, Section 2, mandates 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, … and excluding Indians not taxed, three fifths of all other Persons."

The word "persons" is often used in the Constitution to refer to all people, as opposed to only citizens. When a constitutional provision applies only to citizens, it uses that very word, as in the Privileges and Immunities Clause, which prevents states from denying various rights to "citizens" of other states but not noncitizens.

Moreover, if the term "free persons" were limited to citizens, there would have been no need for the exclusion of "Indians not taxed," a phrase primarily denoting Native Americans living under the authority of tribal governments. Such persons were not citizens at the time of the founding and indeed did not become citizens until Congress passed a law to that effect in 1924.

There is even less support for the idea that "persons" is somehow defined by immigration status….

It might seem strange that congressional apportionment includes noncitizens who cannot vote. But large numbers of nonvoters have always been included in apportionment counts. At the time of the founding, and for generations afterward, most state governments denied the franchise to women and to many men who failed to meet property qualifications. Yet both groups were counted for apportionment….

And even today, most states deny the vote to children under 18, many convicted felons and some of the mentally ill. Yet all these groups still count.

The problem of nonvoters being "represented" by politicians elected by others is partly mitigated by the fact that the interests and sympathies of voters and nonvoters are often intertwined. Thus many adults are sympathetic to the interests of children, and many voters in states with large populations of noncitizens are supportive of undocumented immigrants, sometimes to the extent of establishing "sanctuary" jurisdictions to protect them.

Here, I would like to add a couple points that could not be included in the op ed for lack of space. First, in addition to the main constitutional issue addressed in my article, the case does also include the procedural issues of standing, ripeness, and remedy. It's possible that the Supreme Court will overturn the lower court ruling on one of those grounds, without making any decision on the constitutionality of the administration's plan.

Second, while the text of the Constitution forbids excluding undocumented immigrants and other non-voters from apportionment counts for the House, it is—in my view—likely constitutional for them to do so when it comes to apportionment for elections to state and local offices. There are several plausible interpretations of the "one person one vote" principle that would permit exclusion of some categories of non-voters. Of course, such schemes might be forbidden under some states' own constitutions.

UPDATE: It's worth noting that the language of Article I, Section 2, quoted above, was later modified by Section 2 of the 14th Amendment (which eliminated aspects related to slavery, such as the three-fifths clause, and penalized states that abridged the franchise based on race). However, the part relevant to this case dates back to the original language from Article I, and I quoted it for purposes of considering its original meaning.

NEXT: Sixth Circuit Strikes Down Transportation Agency's Exclusion on "Political" Ads and Ones That "Scorn or Ridicule"

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  1. The Administration’s case is ridiculous of course, and they probably know that. It may have been brought for show more than anything.

    Still, a Court that is willing to halt the Census and do what it did in the Alabama curbside voting case might find an excuse to go for it.

    I hope someone is working on picking four new Associate Justices.

    1. “I hope someone is working on picking four new Associate Justices”
      Because you want to exclude illegal immigrants from the Census?

      That’s what court packing would allow for, you know that, right? For these sorts of “absurd” cases to get through the SCOTUS….

  2. This facile categorization of free persons would also include soldiers in an invading army, right? Seems spot on with respect to our founding.

    1. Yes, the Founders when the drafted that language, of course, imagined that their heirs would let 11-20 million illegal and undocumented aliens into their country and then do nothing about it. Therefore, from a crystal clear Originalist reading of the section, we totally should include illegal aliens in the apportionment. /sarc

      1. The founders had immigration restrictions?

        What does the term “illegal alien” mean to someone in 1789?

        1. Yes, sovereignty and borders were understood in the 18th century.

          1. Indeed, choosing to leave the door open shouldn’t be mistaken for not being entitled to close it.

            1. I don’t doubt that the Constitution permits the federal government to make rules excluding immigrants. It specifically grants Congress the power to make uniform rules of naturalization.

              But that doesn’t mean that people illegally here don’t count in the census.

              1. No, I agree with that, whether you count in the census is a separate issue. I’m just pushing back against people who claim that, because we didn’t have immigration controls back when we desperately needed more population in a world where travel was expensive, that implies that we’re not constitutionally entitled to have them when we’re getting crowded in a world where travel is cheap.

                1. “I’m just pushing back against people who claim that, because we didn’t have immigration controls back when we desperately needed more population in a world where travel was expensive, that implies that we’re not constitutionally entitled to have them when we’re getting crowded in a world where travel is cheap.”

                  Which provision of the Constitution provides that entitlement?

                  1. The migration or importation clause.

        2. Well, as of 1808, an imported slave would have been an illegal alien.

        1. I like laws that I can read in two minutes.

          Seems like there’s precisely zero provisions on who can immigrate to the US in the act–it only limits which of those immigrants can become citizens and mandates how they’d do so.

          Brett’s assertion that imported slaves would be “illegal aliens” after the Act Banning the Importation of Slaves doesn’t seem correct either. That act actually transfers the slaves to the care/possession (depending on which they’re (un)lucky enough to end up in) of the state in which they arrive, rather than trying to exclude them from the US.

          1. That’s a question of what’s to be done with them, not whether their entry into the country was legal.

    2. Why stop there? The Constitution clearly demands that we include everyone domestic and foreign vacationing or visiting the state as Ilya the Sudden Hypertexualist enlightened us!

      Also we can nay must selectively still exclude illegal immigrants and tax dodgers from India and only illegal immigrants and tax dodgers from India in the apportionment counts. Also fetuses that are fully formed as well. I expect Prof Somin will start laying out the groundwork for a future bureaucracy for collating and confirming the nationalities of all illegal immigrants and the number of full term fetuses nationwide in future posts.

      1. *smacks head* Also you’d the Constitution doesn’t specify life status so you have include dead people too! Get those shovels ready boys. Thanks Prof Somin for opening my eyes.

        1. If there’s anything that gets Volokh Conspiracy fans riled — other than too long a period between publications of a vile racial slur at this blog — it’s some genuine libertarian content.

    3. It’s good to see that conservative objections to textualist readings are at least as dumb and probably dumber than when liberals try to strawman the approach.

      1. It’s also good to see that a strictly textualist analysis is really a kissing cousin to post modernist deconstruction. In the end, without context, one can torture text to pretty much mean whatever you want it to mean. The longer the passage, the more one can apply the thumbscrews.

        1. I wouldn’t find it as objectionable if Ilya and Co would actually be consistently textualist instead of only when it benefited them.

  3. Isn’t there an even stronger textual example for your argument than the P&I language? Section 2(2), which immediately precedes the apportionment clause, specifically limits eligibility for Representative to “Citizens”. It is hard to imagine that the drafters did not intend something broader when the use “Persons” in the very next clause.

    1. Don’t forget about the 14th Amendment with Section 1 clearly linking ‘persons’ to citizenship immediately preceding. I’m sure theres plenty of other places where Ilya’s sudden love of textualism would clash with his previously held beliefs.

      1. That was added a century later, so I think the conclusions that can be drawn from particular vocabulary usage are not as strong as they are for contemporaneous provisions.

    2. “[S]omething broader” absolutely. Lawful residents, maybe.

      1. At the founding, there were no immigration restrictions at all, so all residents were lawful.

        The real answer here for people who think non-citizens in general or illegal aliens in particular should be excluded from the census is to amend the constitution.

        1. That is the ideal approach, but while such an amendment would stand a good chance of being ratified, getting it out of Congress would be hopeless. It will have to wait for a constitutional convention.

        2. Matthew Slyfield–I understand you take the absolutist approach in which foreign vacationers and invading troops are clearly included persons. Amendment is not necessary for good judges to see this as more nuanced than that.

          1. It’s possible that there can be some people who aren’t domiciled here. The concept of domicile goes back to English common law and was a background rule for the Constitution. Foreign vacationers and invading troops aren’t domiciled here.

            But that won’t help you in this case, because undocumented immigrants may be illegally domiciled here, but they are domiciled here.

  4. Makes sense, but I would like to see a quality defense of the other side before I decide.

    1. And if there is no “quality” defense that the other side could put forward?

      1. Quality is a relative thing, there are established constitutional precedents that, by any objective standards, ought to have been sanctioned as frivolous when originally argued. I don’t see why the argument for not counting illegals has to be better than Wickard, for instance.

        1. So, then, full on legal realism for you? Not going to worry if your own arguments convince even yourself, so long as you like the policy upshot?

          1. I’d prefer a strict standard, but legal realism has been the trend.

            But why should I agree to a double standard, if I can’t get the single standard I want?

        2. So an argument you think is bad once won, hence you’re entitled to have a moronic argument you like win? I don’t think that’s the way it works.

          1. No, I’d like all the arguments held to a high standard, but see no reason only the other side should get to win with moronic arguments, if they’re going to be permitted.

            1. Well, that’s disgusting.

              I don’t care what you think the other side gets to do, you should make arguments about the Constitution that you believe.

              1. Right. And additionally, Wickard authorizes, if you want to call them this, bad arguments on the Commerce Clause. It doesn’t authorize bad arguments about other clauses.

              2. Right, you’re one of those guys who thinks it’s disgusting to abandon Marquess of Queensberry rules just because the other side nailed you in your balls and then pulled out a tire iron. “That’s disgusting! Just because he’s cheating is no excuse for you to fight dirty. And, no, he keeps the win, there aren’t any backsies.”

                I’d prefer a good standard to a bad standard, but I’ll take a bad standard over a double standard any day, and a double standard is what you want. If the left can win with stupid arguments, the right is entitled to, too.

  5. So, one could argue that Mexican migrants are “Indians” but not that they are “not taxed.” They are subject to the same income taxes, etc as the rest of us.

    Whereas “Indians Not Taxed” were subject to tribal law, rather than American.

    The truth is that this is much ado about nothing. The statistics predict that it means no partisan advantage either way.

    Maybe the digging around in history will explain that birthright citizenship was intentional and deliberate, as clarified in 1924.

    1. How about Mexican immigrants being paid under the table?

      1. Boy is that dumb.

        Some illegal (I presume you meant that, and not “Mexican”) immigrants get paid under the table, so that means all illegal immigrants are your idiotic “Indians not taxed?”

        Lots of people get paid under the table. Lots of people don’t pay income taxes. Unlike Trump, some of them even do that legally. But they are still “taxed” in that they are subject to tax laws.

        Anyway, the total idiocy and hypocrisy of the comments by so-called originalists/textualists here is stunning.

        1. “Some illegal (I presume you meant that, and not “Mexican”) immigrants get paid under the table, so that means all illegal immigrants are your idiotic “Indians not taxed?” ”

          No, it would be matching “some”s.

          1. And you can identify who is who? Of course you can. Piece of cake for someone who can tell us the Pope is not Catholic, some Jews are not really Jews, etc.

            But you ignore, among many other things, that “not taxed” means “not subject to taxes,” as opposed to not paying taxes.

            Look Brett. You don’t think illegal immigrants are really fully human. You despise them, and don’t think they really should ahve any rights at all.

            OK. You’re a bigot. You’re entitled. But stop making insane arguments about how the Constitution applies. You (again) beclown yourself. Have you no self-respect?

      2. I encourage you to bring lawsuits against the Census to discount specific enumerated individuals of Indian ancestry that are not paying taxes.

        But you have to enumerate the individuals and provide evidence that they don’t pay taxes. Otherwise you’re just being racist.

  6. It might seem strange that congressional apportionment includes noncitizens who cannot vote. But large numbers of nonvoters have always been included in apportionment counts.

    Yes, people like children or women that were citizens, or at a minimum, legal residents of the US. Isn’t there a qualitative difference between them and people in the country illegally?

    Should we also take a census count of an invading army and use those numbers for Congressional reapportionment?

    1. Isn’t there a qualitative difference between them and people in the country illegally?

      There is a difference, but not one that matters for these purposes. Read the text.

      Should we also take a census count of an invading army and use those numbers for Congressional reapportionment?

      Call when it comes up. Meanwhile, the invaders are not residents.

      1. Meanwhile, the invaders are not residents.

        What is the actual difference? Both want to live on this land in violation of the law.

        1. I want to pitch for the Yankees. So there’s no difference between me and Gerrit Cole. Is that right?

          1. And yet you say above there’s no difference “that matters” between a legal and illegal immigrant either?

  7. Isn’t the cited text superseded by the 14th amendment?

    “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.”

    So I don’t really see the point of quoting the old “free persons” text. It’s no longer operative.

    I don’t think you can argue that illegal immigrants aren’t “people”, but hasn’t it always been the case that the Census did NOT, as a matter of tradition, count certain classes of people? Tourists, business travelers, temporary visitors. People are counted at their normal residence, even if they happen to be somewhere else on the day of the Census. Such people were regarded as having a regular residence outside the country.

    I would think you could make an at least non-absurd case that illegal immigrants, lacking legal residence in the country, and subject to deportation if caught, constitute “temporary visitors”, and should be considered to legally reside in their home countries. It would seem strange if overstaying a tourist visa gave you greater rights, not fewer.

    At least, I don’t think this argument would be frivolous.

    1. I suppose it’s worth asking: For apportionment purposes, I believe prisoners are generally counted at the address of the prison. What does the census do about escaped prisoners? This is probably the group most analogous to illegal aliens.

      1. I suspect that there are not enough escaped prisoners at any point in time that anyone has ever bothered to do anything about this “problem”.

        1. I’m sure there hasn’t been any sort of official rule promulgated, but it does come up often enough they have to have made some kind of determination in a few cases.

            1. I don’t know why you’d think so.

              1. Because what you’re saying is completely and utterly bonkers.

            2. He’s not high. Just caught in an epistemic bubble.

              1. ¿Por què no los dos?

      2. If they are escaped prisoners, they should be counted wherever they are now. Theoretically, they are living somewhere, and would either fill out the census form that comes to that address, or respond to the census worker who comes to the door. Or would be counted in the estimate the census uses for the homeless population.

        1. Escaped prisoners would be counted as if they were living in the prison. Just like the census counted college students as if there were in the college town even if they were home for covid.

          1. Well, in that case, illegal immigrants should be counted as if they were living in their home country. I think everyone should be counted at their legal residence, not merely where they happen to be at the moment, and illegal aliens have no legal residence in the US.

            So the Census would count the, sure, but they’d count them as residing in Mexico, Honduras, and so forth.

    2. Doing a little poking around, the “usual residence” rule (People are counted where they usually eat and sleep.) is subject to modification, and has been changed for several groups. At one time college students, for instance, were counted as resident at their family’s home, then that was changed to the college for the 1950 Census. This doesn’t appear to have been a statutory change, just an internal alteration of the instructions given to the census takers.

      It’s my conclusion that you can make a serious case for a regulatory level change that counts illegal aliens as residents of their home countries, not where they happen to be in the US.

      1. ” It’s my conclusion that you can make a serious case for a regulatory level change that counts illegal aliens as residents of their home countries, not where they happen to be in the US. ”

        You should try to enact something in the two months during which conservatives will remain practically relevant in Washington.

        1. Nah, if they were going to do anything of the sort, it would have to have been when the House was still Republican. But the GOP has been pretty worthless even when it has commanded both houses of the legislature AND the White house. The only thing I like about the GOP is that “pretty worthless” is better than “actively destructive”.

          But I think you miss the point: The regulatory changes in the “usual residence” rule weren’t statutory, they were internal to the Executive branch. So Trump plausibly could attempt them. And end up with another national injunction for his trouble, of course.

          It would be an interesting fight, and is why Democrats went to court to demand that the Census be stretched out enough that the final numbers would be issued after January 20th of next year. Trump actually DOES have a legal leg to stand on in excluding illegal immigrants, though I’ll concede he doesn’t have two.

      2. It’s my conclusion that you can make a serious case for a regulatory level change that counts illegal aliens as residents of their home countries, not where they happen to be in the US.

        Your conclusion is doo-doo. The “usually eat and sleep” rule, I assume, is what takes care of tourists. But unlike college students, the immigrants do not have two places where they live. They live here, no matter how much you hate the fact.

        1. So, how long does somebody have to overstay their visa before their home country stops being their usual residence? Five years? Five minutes?

          1. Let’s see…

            According to the census folks, people on work or school visas it’s immediate. No need to wait for their visa to expire.

            For people here on B1 or B2 visas (travel for business/tourism), it’d be once they stop being here on a visa, and become an unauthorized immigrant. So the moment their visa expires.

            1. I find the notion that people here illegally are entitled to more rights than people here legally rather bizarre, frankly.

              1. And there it is. The nativist knee-jerk resentment.

                Pretty sure us legal folks gets counted in the census.

                1. Do B1/B2 visa holders need to fill Census 2020?
                  B1/B2 visa holders are not required to fill Census information

                2. He said “legally” versus “illegally,” not “native” versus “immigrant.”

                  It is possible to encourage legal immigration while recognizing the sovereign power to set immigration policy.

              2. It does not seem to me that tourists would be entitled to more rights than (other) people here legally. The twist with those on student visas clearly is a corner case that probably does not apply to very many people, especially as the census is a very occasional event.

                As to counting, or not, of those on tourist or business visas, it is likely that the number is both relatively small as a fraction of the population and changes very slowly with time as some return to their countries and others arrive for a period.

                1. It’s a bit paradoxical is all.

                  If you’ve got a B1/B2 Visa, you can stay in the US up to 6 months, but aren’t counted in the census.

                  If you illegally cross the US border then apparently you’re counted in the census, no matter how long you’ve been here. 1 day or 1 year…

              3. More rights?

                Not at all xenophobic, are you?

      3. Brett Bellmore–even just poking around, your analysis looks much less simplistic than original editorial.

        1. He didn’t even notice that the Article 1, Section 2 text he was quoting was replaced by slightly different language by the 14th amendment.

          Article 1, section 2, pre 14th amendment

          “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.”

          14th amendment, Section 2:

          “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.”

          Note that there is no longer any reference to “free persons”. Just “persons”, now. The language now in effect makes no reference to slavery or indentured servitude.

          Now, I expect he’s aware that the 14th amendment changed things, and might have just been a bit lazy, because the language he quoted was adjacent to the mention of a census. But still, he was quoting language no longer in effect.

          1. The thirteenth amendment abolished slavery, pretty much eliminating the class of unfree persons except, as provided later in the same paragraph as to rebels and criminals. In that context, the change from “free persons” to “persons” makes sense.

            It is worth noting also that the proportion to the whole population of “male inhabitants … over the age of 21” is one that would vary quite slowly over time and is, therefore, not of much consequence.

            1. “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.””

              Now, that is some fairly archaic turn of phrase, but it certainly seems to suggest that at least for apportionment of representatives, people who cannot vote don’t count.

              1. Now, that is some fairly archaic turn of phrase, but it certainly seems to suggest that at least for apportionment of representatives, people who cannot vote don’t count.

                No it doesn’t. Not close.

                when the right to vote ….. is denied to any of the male inhabitants of such state, being …citizens of the United States,

                So it’s only talking about citizens who are denied the right to vote.

                In fact, that this specific provision is there at all suggests that the drafters could have inserted other adjustments, had they wanted to.

                1. Interesting take

                  That text was written at a time when all permanent residents were citizens. Immigration law was only just being invented at the time.

                  Does this analysis account for the lack of such a category?

                  I suppose one might consider “women” to be such a bucket. They cannot have their right to vote removed, never having had it at the time.

                  But the more germain point might be that the language appears to be designed to create consequences for states who wish to institute restrictions on voting rights that contravene the intentions of this new law. I.e., if a state were to institute requirements for voting rights that limited the vote to college graduates, then their representation would similarly be limited and reduced. This would be the reason for the citizen qualifier, and not the other way around.

      4. Brett Bellmore–even just poking around, your analysis is fairer and looks much less simplistic than original editorial.

        1. He has above admitted he doesn’t believe the argument.

    3. I would think you could make an at least non-absurd case that illegal immigrants, lacking legal residence in the country, and subject to deportation if caught, constitute “temporary visitors”, and should be considered to legally reside in their home countries.

      So you would disenfranchise people before they’ve had a chance to due process.

      Indeed. Not “absurd” at all.

      1. I never said anything about denying them due process, and the census can’t disenfranchise people in the first place.

        1. Your entire scheme is to not count folks before they’re deported. The only way to do that is if you make an extra-judicial decision before they’ve had their day in court, aka, skipping due process.

          And yes, not counting people who should be counted is disenfranchisement.

          So yeah. You want to skip due process to disenfranchise folks.

          1. But not counting people for purposes of apportionment doesn’t “disenfranchise” them, they still get to vote if they’re citizens.

      2. They aren’t being “disenfranchised”. They already can’t legally vote.

        1. John Rohan, right. They are being “disfranchised.” That is a distinction with a difference. Historian C. Vann Woodward was careful to observe it when referring to slaves.

  8. There are several plausible interpretations of the “one person one vote” principle that would permit exclusion of some categories of non-voters.

    Pretty sure that voters in Wyoming having (in the electoral college) three times the voting power of voters in California violates that principle far more then any of these shenanigans ever will.

    1. The Court pulled that principle out of their collective ass anyway, you know. It was clearly contradicted by the design of the Senate.

      1. So you agree that Somin is engaging in pointless sophistry.

      2. And it made very little sense applied as it commonly was to senates in states with bicameral legislatures. In those states, Ohio for example, members of the state house of representatives were supposed to be elected from districts of approximately equal population (normally assumed to be determined by the US decennial census. Senators typically were allocated by governmental subdivisions like county or parish. The end result in Ohio was that 99 roughly equal house districts were determined by the normal redistricting process, like the US house redistricting overseen by the governor, state auditor, and two legislators , one from each of the two major political parties. Gerrymandering, often with concurrence of the minority major party leadership, followed directly. Senatorial districts then were constructed from sets of three connecting house districts, with the result that the Senate ordinarily mirrored the House very closely. The outcome made little sense and probably disadvantaged the minority party more often than not.

  9. I wonder if this system could be abused by certain “motivated” parties?

    Could you, for example, draw or obtain a Congressional District that was 80-90% non-citizen? Then you could vote in a representative, needing a fairly small number of actual votes?

    What would be the limit on something like this? Could you get a district that was 99% non-citizen?

    1. Good question.

      Too bad the Supreme Court stupidly ruled that they couldn’t do anything about gerrymandering because someone might have to do some arithmetic.

      1. You know, rather than whine about it, the proper response would be to try to get legislation passed to fix the perceived issue.

        1. How about if I complain – not whine – with the purpose of drawing attention to the issue so it might get taken up by Congress.

          It’s not like I’m in position to introduce legislation, you know.

          1. Perhaps you should “complain” to your Congressmen to make new laws. Maybe write letters. Talk to them in person. Etc.

            Here’s the really big issue in my book. Gerrymandering has been around forever. Fine. You want to change it so there isn’t gerrymandering. Also fine. But, if you want to change something that’s been longstanding policy, you should do it through the law making process. Because that’s what it’s meant for. That’s how you ensure broad consensus and agreement.

            Changing it through the courts “discovering” new rights damages the entire process

  10. There is no such thing as an “undocumented immigrant” so even if we count them the number will be zero.

    1. Legalize murder, and the number of murders magically drop to zero.

  11. Question:

    When the constitution was written, there were no illegal immigrants. There was no border control.

    If you came to the US and found a place to live, you were a part of the US.

    It wasn’t until well after the Civil War that the states and federal government began controlling immigration.

    How does this affect your analysis?

    It seems that the “untaxed indians” idea is much closer to “illegal immigrants” today than the “persons” category in the constitution.

    “Untaxed Indians” were part of a separate sovereignty, living within the US, but not citizens of the US. That is the identical legal status of today’s illegal immigrants.

  12. Even today it is feasible to create virtual “persons” who could pass for real. We could have virtual news anchors. We could have virtual law professors who write Op-Eds for the LA Times. Are they not persons? Should they be counted in the census and allowed to vote? How can professor Somin prove to me that he is human except by submitting to direct physical inspection by me. (That is not something I would wish for.)

    Most scary, once we can create a passable virtual person via computing, we can create trillions or quadrillions of other virtual persons, making them an unstoppable majority.

    Be careful of what you ask for. If it requires a Constitutional Amendment to clarify the meaning of “person”, that could take years, and while waiting those years, we could lose control of government to the “majority” of virtual persons.

    1. Do you number commercial corporations among those scary virtual persons?

  13. We will see just how quickly SCOTUS abandons their “originalist” principles when they vote to not count illegal immigrants.

    1. The current court has decided exactly that… Sort of.

      That you cannot count illegal alien residents. You must count people, real or imagined, and you cannot assertion which category they belong to.

      Which seems quite odd. You must count male or female, race and ethnic identification, age, military and marital status, none of these are relevant to reapportionment or redistricting (well, shouldn’t be). But you cannot count immigration status, which might be directly relevant.

  14. “three-fifths of all other persons”. So do we count three-fifths of the illegals?

  15. Why should the illegals and their states benefit from the illegal activity at the expense of legal citizens?

  16. Should a crime, illegal immigration, be rewarded with federal funding and privileges? That should be against policy. If you reward criminality with money, you will get more of it.

    1. But that begs the question of whether you think it should be a crime. If you don’t think it should be a crime, there’s nothing inconsistent in the position.

      Immigration was completely unrestricted for most of the country’s history, until the 1920s. Current policies aren’t written in stone, and the opposite position has roots in the country’s history. There’s no basis for treating current policy as some sort of obvious given.

  17. Why do people sentenced to death or life imprisonment count fully? They are neither free persons nor persons subject to a term of years. They ought to count 3/5.

    There are no longer many people in the category. But it wasn’t abolished, and should still apply to those few for whom it is relevant.

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