Balkinization: A Question for the Next Census

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# posted by

Gerard: There is a controversy brewing about the Justice Department's request that the next census ask about citizenship status. The concern is that this question may discourage noncitizens from answering the census and thus lead to an undercount of that population that would affect all sorts of government programs, including representation in the House of Representatives.

It is reasonable to assume, where the government is again enforcing immigration law, that a substantial number of illegal aliens would avoid the census and thus reduce the population count.

This only becomes an issue under the 14A if the original meaning of "population" at the time of the Civil War amendments included illegal aliens given such a class of people was unknown at that time. If an eleven million person foreign army invaded the United States in 1869, would the Congress who proposed the amendments include them as part of the "population in the 1870 census?" The Amendment expressly excluded American Indians, who were not citizens at this time, from the population count even though they lived among the population.

You have performed a great deal of research on this subject. Was there any discussion of which people constituted the population?

Of course, given the law prohibits illegal aliens from receiving federal welfare state benefits, I do not see the problem in eliminating illegal aliens from the distribution formula for those benefits.

The modern version would ask all citizens above the age of 18 whether their right to vote has ever been "denied . . . or in any way abridged, except for participation in rebellion or other crime.

If they answer yes, are you going to offer a second question asking them how their vote was "denied . . . or in any way abridged?"

There are no such laws of which I am aware. Laws meant to ensure citizenship like voter ID cannot rationally be considered an abridgment of the right of citizens to vote.

# posted by

Bart DePalma : 12:46 PM

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# posted by

Brett : 3:09 PM

Am I to take it that "non-citizens" is a euphemism for "illegal aliens"? Because I've known a fair number of legal aliens, (I married one!) and none of them would have been afraid to respond to the census.

Indeed, it would be silly for your typical legal alien to be afraid to respond to the census, in as much as they already have a legal obligation to keep the government apprised of their residence.

Bart's analogy to an invading army is one that's occurred to me, too. If a neighboring country should happen to invade during the census, must the soldiers be counted?

If the answer is "no", I can't see why illegal aliens, present here contrary to the law, would be any different.

# posted by

Brett : 3:11 PM

Brett:

Consider this from another point of view. What did the American Indians consider European immigrants settling on their land seeking economic opportunity and a better life? I believe illegal immigrants would not have begun to describe their view of our invasion.

# posted by

Bart DePalma : 3:28 PM

Undoubtedly true. But, like the injustices done by the British to my Irish forbearers, (Who came here during the Potato famine.), that's among the sunk costs of history. I don't lose sleep over it.

What's going on now in Europe is probably more to the point. Society after society committing cultural suicide; The future will look back at us and be puzzled.

# posted by

Brett : 3:51 PM

Here's how a couple of authors of new books looked back on the KKK of the early 20th century as described in this essay in the New Republic:

"The KKK’s Attempt to Define America"
Two new books explain how the Klan gained so much power in the 1920s.
By Eric Herschthal January 16, 2018

Here's a paragraph from the essay:

***
Gordon, a professor at NYU and one of America’s most accomplished historians, has written The Second Coming of the KKK as an explicit political parable: Understanding the Klan of the 1920s can help us understand the rightwing populism of today. Unlike the original Klan that took root in the South shortly after the Civil War, the so-called “second Klan” of the 1920s, she shows, deemphasized lynching and secrecy, and though they continued to be extremely racist, did not always put anti-black racism front and center. Instead, it hosted parades and picnics, and spoke to the fears of individual communities, particularly in the Midwest and West. In fast-growing cities like Los Angeles, Portland, Oregon and Muncie, Indiana, new immigrant groups—Eastern European Jews, Irish and Italian Catholics, Japanese—bore the brunt of the group’s racism. This was not because the Klan suddenly embraced black Americans, she argues, but because many of these cities lacked a sizable black population.

***
https://newrepublic.com/article/146616/kkks-attempt-define-america

A major political accomplishment of the KKK back then was its (4-6 million members) support for the Immigration Act of 1924. Note that the Irish had problems in this time frame many, many decades after the the Irish potato famine of the 1850s that led to Brett's forbearers coming to America.

Deja vous [sic], Brett.

# posted by

Shag from Brookline : 4:25 PM

Brett: What's going on now in Europe is probably more to the point. Society after society committing cultural suicide; The future will look back at us and be puzzled.

Human migrations over history generally resulted in cultural change at minimum, more often war.

The US has demonstrated immigration can work IF the immigrants are culturally assimilated. Substituting diversity for a melting pot is a recipe for destruction.

# posted by

Bart DePalma : 4:50 PM

Brett's comments reminded of an NPR report on undocumented (aka illegal) Irish concerned with Trump's policy.

https://www.npr.org/2018/01/22/578930256/undocumented-irish-unexpectedly-caught-in-trumps-immigration-dragnet

I understand these are not dreamers for the most part.

SPAM failed to note that many immigrants were thwarted regarding cultural assimilation both de jure and de facto.

# posted by

Shag from Brookline : 5:00 PM

Shag: Brett's comments reminded of an NPR report on undocumented (aka illegal) Irish concerned with Trump's policy.

I listened to that NPR segment. Immigration law enforcement has actually increased the most for non-hispanic illegals like the Irish and Chinese. So much for the meme that enforcing the law is racist.

# posted by

Bart DePalma : 5:03 PM

Coincidentally the Irish and Chinese were targets of the KKK in the early 20th century. Prof. Gordon wrote her book with visions of the Trump immigration policy during the 2016 campaign

By the Bybee [expletives deleted], as I recall Brett thought that America's best days were in the Roaring Twenties. Maybe that's what Trump had in mind as to when America was great.

# posted by

Shag from Brookline : 6:57 PM

Shag, you're just recalling your previous aspersions against me. I understand, though; As you get older, the line between fantasy and reality does tend to thin.

# posted by

Brett : 7:14 AM

Brett's:

"As you get older, the line between fantasy and reality does tend to thin."

reminds me of an expression years ago:

"Hair today, gone tomorrow."

Fantasy? Reality? Or is that a photoshop?

Actually, I'm recalling Brett's response to my question (years ago) when he thought were America's best years. Brett's response: The Roaring Twenties. (SPAM's response to that same question: The Gilded Age of the late 19th century.) Brett of course was not yet a potato bud back in the 1920s. But maybe Brett learned a tad about the role of the KKK regarding the Immigration Act of 1924 when as a youth in northern Michigan he was competing with Mexican farm laborers in pulling radishes.

# posted by

Shag from Brookline : 7:48 AM

Perhaps you can provide a link to that comment?

# posted by

Brett : 7:55 AM

Which comment?

Frankly, Brett is personally confirming that (his) memory is the second thing to go. Did reference to radishes make him blush?

# posted by

Shag from Brookline : 9:07 AM

The comment you claim I made about the Roaring Twenties being America's best years.

The problem with turning it up will be that Google doesn't have your daydreams indexed.

# posted by

Brett : 9:17 AM

But Google no longer searches blog comments. But this Blog does have its Archives.

# posted by

Shag from Brookline : 10:11 AM

Where did you get the idea that Google doesn't search blog comments?

Try this.

# posted by

Brett : 10:23 AM

Brett:

I suspect our ancient correspondent is actually recalling my past observation that the 1920s after the 1920 depression was the most highly productive period of the 20th century. I believe Mr. W offered the 1960s in response during a lengthy discussion.

# posted by

Bart DePalma : 10:30 AM

I think he's just recalling previous occasions on which he's baselessly made the same claim.

I did a search for my own posts in the context of the roaring twenties, and what did I come up with? "I don't think that there was a golden age, but that doesn't obligate me to welcome a leaden age with a smile."

# posted by

Brett : 10:35 AM

I can see why even a legal non-citizen here might, in the current climate, be concerned with responding to the census. Remember, many o of them come from countries where the 'rule of law' is a farce and corruption is rampant. Even if you think they are misled by news accounts that the current administration is anti-immigration you can't deny such accounts are 'out there.' Therefore, even if they are legal you can see how they might be 'worried.'

Also, I've said it before and I'll say it again, equating illegal immigration to 'invasions' is goofy hyperbole. The Founders, and everyone else not part of a paranoid conspiracy theory mindset knows that an invasion involves conscious, coordinated efforts in ways that don't exist with immigration.

It's interesting that immigration has really become the raison d'etre of American movement conservatism. The fear that the 'other' is going to come here and, ostensibly, vote differently than those here, is easily the most important issue among them. Reagan has been kicked to the curve with a mega-focus on such a temporarily partisan issue.

# posted by

Mista Whiskas : 10:53 AM

Check out the thread at this earlier post by Gerard for clues:

https://balkin.blogspot.com/2013/10/an-ideological-test.html

Those were my SALADISTA days.

Now back to the Archives.

# posted by

Shag from Brookline : 10:57 AM

"I can see why even a legal non-citizen here might, in the current climate, be concerned with responding to the census. Remember, many o of them come from countries where the 'rule of law' is a farce and corruption is rampant."

Again, I'll remind you that legal resident aliens are under a legal obligation to report any changes of residence to the INS. Failure to do so can lead to deportation. Given that, it would be absurd for them to hide from the Census.

Like I said, I know a lot of legal resident aliens, and not one of them has the least fear of the government knowing where they live. Because it already does. In fact, they'd face legal jeopardy if it lost track of them!

It's quite clear that "non-citizen" was being used as a euphemism for illegal alien; They're the only category of non-citizen in the US that would have anything to fear from responding to the census.

# posted by

Brett : 11:23 AM

BD: Also, I've said it before and I'll say it again, equating illegal immigration to 'invasions' is goofy hyperbole. The Founders, and everyone else not part of a paranoid conspiracy theory mindset knows that an invasion involves conscious, coordinated efforts in ways that don't exist with immigration.

Valid distinction. For that reason, I prefer my second analogy of Europeans settling in American Indian lands seeking a better life and economic opportunity.

However, I do not see how the distinction is relevant to a determination of what people constitute the "population" under the original meaning of the 14A.

# posted by

Bart DePalma : 11:39 AM

Here's a little more nostalgia from a post by Sandy just prior to the 2012 election:

https://balkin.blogspot.com/2012/10/the-october-surprise.html

Check out SPAM's (they known as the "yodeler") predictions on the election and on FEMA. Compare the latter with Trump/GOP reactions to hurricanes in 2017 causing great damage to Texas and to Florida (also PR, but they don't vote).

Back to the Archives.

# posted by

Shag from Brookline : 11:52 AM

"The Founders, and everyone else not part of a paranoid conspiracy theory mindset knows that an invasion involves conscious, coordinated efforts in ways that don't exist with immigration."

Given some of the history of Mexican involvement in promoting illegal immigration to America, I don't think you can really say that.

Like this helpful little pamphlet for those considering invading the US.

<a href="https://www.theguardian.com/global-development/2016/sep/06/mexico-african-asian-migration-us-exit-permit>Or how about Mexico giving illegal immigrants from other countries safe passage to the US, so long as they commit to crossing our border?</a>

No, it's actually a lot more like an invasion that you'd like to admit. Encouraging and enabling illegal entry into the US is official Mexican policy.

# posted by

Brett : 1:03 PM

Sorry, try that link here.

# posted by

Brett : 1:04 PM

Did Brett recognize that invasion when he was a mere laddie in northern Michigan when he had to compete with Mexican invaders in pulling radishes?

By the Bybee [expletives deleted], to what extent was there a conspiracy among American farmers to accommodate such invasion for purposes of agricultural productivity/capitalism? Was this de facto official American policy?

# posted by

Shag from Brookline : 1:49 PM

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# posted by

Bart DePalma : 2:14 PM

Whether the 14A requires states to use the total population (including illegal aliens) or some subset of that population appears to be an open question.

In Burns v. Richardson, the Court allowed Hawaii to use state citizens to apportion its state legislature, excluding a very large population of transient non-citizens.

In the recent Evenwel v. Abbott decision, the Court dodged making a decision whether Texas could district based the voting-eligible persons, excluding children and a very large population of non-citizens, hundreds of thousands of which are here illegally.

However, some of the historical research in Everwel is interesting:

[During debates at the Constitutional Convention:] Endorsing apportionment based on total population, Alexander Hamilton declared: “There can be no truer principle than this—that every individual of the community at large has an equal right to the protection of government.” 1 Records of the Federal Convention of 1787, p. 473 (M. Farrand ed. 1911).

Are illegal immigrants part of the community at large? Do we look at the de jure reality that the law prohibits such aliens from being part of the community or the de facto reality that they are part of the community? Of note, Hawaii did not think non-state citizens, even if they were US citizens, were part of their community.

[During debates on the 14A:] “As an abstract proposition,” argued Representative James G. Blaine, a leading critic of allocating House seats based on voter population, “no one will deny that population is the true basis of representation; for women, children, and other non-voting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot.” Id., at 141. See also id., at 358 (remarks of Rep. Conkling) (arguing that use of a voter-population basis “would shut out four fifths of the citizens of the country— women and children, who are citizens, who are taxed, and who are, and always have been, represented”); id., at 434 (remarks of Rep. Ward) (“[W]hat becomes of that large class of non-voting tax-payers that are found in every section? Are they in no matter to be represented? They certainly should be enumerated in making up the whole number of those entitled to a representative.”).

During the 14A debates, the concern here among proponents of districting based on total population appeared to be limited to "women and children, who are citizens" Nothing about aliens - illegal or not.

The reality is we did not a have a significant population of illegal aliens in the United States during the constitutional convention or the 14A congressional debates because the immigration laws were far more liberal.

# posted by

Bart DePalma : 2:16 PM

"Of note, Hawaii did not think non-state citizens, even if they were US citizens, were part of their community."

Hawaii is barely willing to acknowledge as state citizens people who've lived there all their lives, if they're not of native Hawaiian descent.

# posted by

Brett : 2:28 PM

Imagine the US government during Vietnam, knowing lots of US citizens were fleeing to Canada to avoid the draft, and knowing (let's say) that many were dying in that effort, published a pamphlet giving advice on how to be safe in that flight. That would hardly be an 'invasion,' which is an "incursion of an army for conquest or plunder."

Words mean things, and when conservatives start using them like post-modernists, we can assume some bs is involved re their motives.

# posted by

Mista Whiskas : 2:49 PM

I will pass on the whole "invasion" dispute here though have commented in the past.

The specific issue of asking the citizenship question is suitably addressed by Mr. W.

Doing some research, the "last time the entire U.S. population was asked about citizenship status was in 1950." Instead, to address an argument cited for the request, "American Community Survey, which is sent out every year to a sample of the population; census experts say that’s enough to enforce the Voting Rights Act." [Atlantic article]

The concerns btw are not necessarily limited to undocumented residents -- documented family members can be concerned as well. As Mr. W. notes, the fact some of these concerns are somewhat unreasonable doesn't erase the concern -- various people from various ideological groups have certain unreasonable fears when dealing with the government.

It is good policy to try not to instigate such things, especially changing a policy in place for over fifty years. The change also can make the census process more complicated and costly. Again, for little net gain at all, if any. Finally, as Mr. W's recent comment notes, specific groups at specific times might reasonably have fears others might not.

# posted by

Joe : 3:02 PM

A pamphlet how they might, once in Canada, avoid detection by Canadian police? Oh, come on, how do you think Canada would react to that?

Imagine the US government, knowing that Canada didn't want them entering, allowed people who weren't legally permitted to stop in the US to land at US ports, and be given safe passage to the Canadian border, where they would cross illegally into Canada. Just try to imagine that.

That's act of war territory.

# posted by

Brett : 3:06 PM

Brett's "Chicken Little" hyperbole:

"No, it's actually a lot more like an invasion that [sic] you'd like to admit. "

and

"That's act of war territory."

Is it time for Congress to declare war?

# posted by

Shag from Brookline : 9:11 AM

Listen to Dinah Washington:

https://www.youtube.com/watch?v=OmBxVfQTuvI

and think of "What A Difference Davos Makes."

But who knows what Trump will say after 24 hours - or less.

# posted by

Shag from Brookline : 10:57 AM