Balkinization: Reapportionment and Section Two of the Fourteenth Amendment

Comments:

I don't think Marty is right about that.

As the President's EO observes, it has never been the case that every warm body physically present in the US got counted for purposes of apportionment. Setting aside "Indians not taxed", tourists have never counted, nor diplomatic personnel.

It's the administration's position that people illegally present in the US are analogous to tourists: They may be physically present, but they aren't members of the polity. They're only present in the country on a temporary basis, because, while they might WANT to be here long term, they're legally subject to deportation if identified.

Unless you're arguing that it is unconstitutional to fail to count tourists, I don't see where you've got a strong argument against Trump's position.

Indeed, many of the people he proposes to not count for apportionment ARE tourists! They're tourists who illegally overstayed their visas. It would seem rather strange if breaking the law entitled a tourist to representation in Congress.

Bottom line, I think he's actually on strong grounds here.

# posted by

Brett : 1:30 PM

ML explains that the challenge is not that 'every warm body' is counted.

That’s correct—but that’s because no one would include ordinary, transient visitors, such as tourists or persons in the U.S. for business purposes on April 1, as inhabitants of the States they happen to be in on April 1. (The Memorandum also refers to “certain foreign diplomatic personnel.” Most such personnel living in the U.S. are counted as State inhabitants, however. The only diplomats who the Census Bureau has sometimes excluded from the census count are those living in foreign nations’ embassies, which aren’t deemed to be in the United States for certain legal purposes.)

So, no, even "diplomatic personnel" aren't as a mass uncounted. At least that is a reasonable debate. Undocumented people are clearly subject to our laws. They are also protected by them. They are represented by members of Congress in the process. In that limited sense at least, they are part of the "polity."

I would however be inclined to just follow the text. They are "persons" and not untaxed Indians. As ML notes, the term has been strictly enforced.

As the Court noted in Franklin, 505 U.S. at 804, since 1790 Congress has deemed a person to be an inhabitant of a State—and thus is “in” the State for purposes of House apportionment—if his or her “usual residence” is in that State. (The 1790 Act referred to a person’s “usual place of abode.”) In particular, and as noted above, the Census Bureau has always counted a person as an inhabitant of a State if that is “where a person lives and sleeps most of the time.”

Documentation as also noted is a complicated thing that is often in flux. People can be undocumented and here for quite some time. It is a rather weak indicator of transience as compared to other things. Recall that this is residence in a state, not the country, since it is for apportionment of each state delegation.

One more joker here as noted by ML is how exactly you would determine documentation. The problem in asking for status was cited in the past. But, regardless, it has been determined you cannot. So, how do you determine it? The results are likely to be arbitrarily incomplete.

Anyway, GM helpfully wishes to have a stronger enforcement of the second section of the 14A. Given the broad rule there that even abridgment ("in any way") of the right to vote, with limited exceptions, is covered, that can be a potent tool.

# posted by

Joe : 2:40 PM

Indeed, many of the people he proposes to not count for apportionment ARE tourists! They're tourists who illegally overstayed their visas. It would seem rather strange if breaking the law entitled a tourist to representation in Congress.

The people are there and the states have obligations to them. If an undocumented immigrant is robbed, a city doesn't just ignore it. The representation in that sense is not merely in the interests of the people covered. The undocumented also has economic effects. As one recalls, slaves were counted for purposes of representation.

Residence at any rate brings rights, even if one is smuggled into the country. Due process of law is applicable. A child born here is a natural born citizen. It is not strange at all that "free soil" brings forth privileges by mere presence.

# posted by

Joe : 2:50 PM

So much for the law as written. The literal meaning of 'Persons' both now and at the time the 14th and its Sec. 2 was written would include undocumented residents, and this is textually strengthened by the fact that it's explicitly distinguished to be something broader than 'citizens' by the language in section 1. The idea that it 'doesn't make sense' to count them or that they are analogous to a historical group that wasn't counted *despite* the clear meaning of what's written is laughable for ostensible textualists to fall back (remember, their usual refrain is 'the law as written might be imperfect and lead to strange things, but the rule of law demands it be followed as written or *changed*').

As has been noted before here, so called textualists are as out for pure political results as much, if not more so, than any other constitutional theorists. But they're of course less honest about it.

# posted by

Mista Whiskas : 3:10 PM

"It would seem rather strange if breaking the law entitled a tourist to representation in Congress."

It's almost like at some lizard level our Bircher here realizes there are important differences between what's being discussed here and tourists, he just has to reformulate it in this kind of fashion.

# posted by

Mista Whiskas : 3:15 PM

"but they aren't members of the polity"

Note the text does not refer to counting 'the People' but 'Persons.' What's happening here is reading a political theory into the plain text which has another literal meaning in order to subvert that latter meaning (done, of course, for contemporary political reasons). If that's not (what its critics call) 'living constitutionalism' contrary to (what its supporters call) 'textualism' then I don't know what is.

Every accusation is, of course, a confession with these people.

# posted by

Mista Whiskas : 3:20 PM

"Undocumented people are clearly subject to our laws."

So are tourists. But illegal aliens, while they are "subject" to our laws, are not "subjecting themselves to" our our jurisdiction: Their very presence in the country represents an ongoing violation.

And, yes, it's "illegal aliens", not "undocumented people".

First, we're not talking about people who've somehow misplaced their visa or green card. We're talking about people who lack the documents because they're not legally entitled to them. You might as well pretend a bank robber is making an "undocumented withdrawal".

Second, they generally DO have documents. Fraudulent ones.

"Undocumented" is a euphemism, designed to avoid acknowledging the elephant in the room: These people are not legally entitled to be here.

# posted by

Brett : 4:03 PM

Mista Whiskas:

For what it's worth, I agree that declaring illegal aliens to be a proper modern counterpart to "Indians not taxed", (A large class of non-citizens within the country.) is probably a more textual approach to Trump's end here.

But from a precedential standpoint, it is already established that those "Persons" are not every live body. Which is 90, 95% of the way, legally, to where Trump wants to be. I think he stands a good chance of winning the challenge, but only if he wins reelection.

Because I fully expect an injunction any time now, and for the Supreme court to be in no hurry to address the appeal from it. As I remarked to Marty, the Court not only follows the election returns, they frequently wait on them, too. They're not going to be eager to issue a controversial ruling that is likely to be overturned in a matter of months at the voting booth.

They'll get around to it if Trump wins reelection. Especially if he gets a quick opportunity to replace RBG. (Ideally by her retiring, of course.)

# posted by

Brett : 4:43 PM

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# posted by

Joe : 4:45 PM

If "precedent" is your test, ML pointed our Brett has a weak case.

# posted by

Joe : 4:46 PM

So are tourists. But illegal aliens, while they are "subject" to our laws, are not "subjecting themselves to" our our jurisdiction: Their very presence in the country represents an ongoing violation.

My reference in context was addressing the wrongful claim that diplomatic personnel were "never" counted. As ML notes, they are. But, I noted as compared to undocumented immigrants, there is a more reasonable case there not to count. Undocumented people, e.g., don't have the special immunity from our laws as diplomatic personnel might.

Breaking the law doesn't mean the undocumented are not subject to jurisdiction. A citizen thief, e.g., is still subject to jurisdiction. A thief is counted. Breaking the law is not some sort of waiving of jurisdiction for 14A purposes. OTOH, diplomatic personnel are special in some sense there.

We're talking about people who lack the documents because they're not legally entitled to them.

We are talking about a range of people including those that might or might not ultimately be found to have the right to be here. A census is for ten years. Using temporary changing status for what often involves long term residency here as the determinant is dubious. The text says "person." As ML noted contra to your wrongful statement, traditionally this even covered many diplomatic personnel.

So, it is far from clear long term why they lack documents. Simply put, they are people without legal documentation. They are undocumented.

Second, they generally DO have documents. Fraudulent ones.

So not the documents that count. A person w/o a correct license is not "licensed" because they have a fraudulent license. This is just hot air.

"Undocumented" is a euphemism, designed to avoid acknowledging the elephant in the room: These people are not legally entitled to be here.

No, as with your comment about diplomatic personnel, this is wrong as a blanket rule. They often are found to have a right to be here. They are covered by our laws. They are bound and protected by them. They are under our jurisdiction.

The term "illegal alien" also has its own baggage. Lots of people don't have documents to do things but we don't call them "illegals" (often the term used) or such. An unlicensed plumber, e.g., might be risky. They might cause major damage if you hire them. But, we don't normally call them "illegals." A term that is often dehumanizing in nature with racist overtones. Finally, often the people covered have been here for quite some time. They are members of the community. Not tourists or diplomatic personnel. They are not "aliens" as that term often is used.

Thus, the term "undocumented" is both correct and appropriate while "illegal alien" is problematic in a variety of ways. It also is not just some neutral "just using the facts" sort of way. The term is selectively used and often with bad baggage.

# posted by

Joe : 4:53 PM

I have come across good article on that issue(and links therein):

"So You Want to Enforce Section 2 of the Fourteenth Amendment?"

Here:

https://medium.com/equal-citizens/so-you-want-to-enforce-section-2-of-the-fourteenth-amendment-e70b3646e62a

# posted by

el roam : 4:58 PM

Brett: Unless you're arguing that it is unconstitutional to fail to count tourists, I don't see where you've got a strong argument against Trump's position.

Lederman argues it is lawful to not count tourists. But, he distinguishes unauthorized people from tourists by noting only the former maintain their usual residence in a state.

# posted by

just_looking : 6:22 PM

"I agree that declaring illegal aliens to be a proper modern counterpart to "Indians not taxed", (A large class of non-citizens within the country.) is probably a more textual approach to Trump's end here."

Lol! This is, of course, not a *textual approach* at all as the text plainly and explicitly excludes Indians not taxed but does not so unauthorized migrants. Indeed, the fact that Indians not taxed are the sole exception to the broad 'persons' indicates there are not other groups to be 'discovered' a-textually via something like analogy. What Bircher Brett is doing is plain as day a living constitutionalism approach (well, I know it says 'persons,' and only excludes Indians, but this is incoveneint for me and my party right now, so what if we argue this group not mentioned is 'functionally' the same as Indians?'). To throw Bircher Brett's oft repeated line back to him, if he and Trump don't like the broad language that *is explicit in the text* and would like to modify it via some polity theory or functional analysis, why don't they *change the language via the appropriate mechanism* rather than, I dunno, acting like bank robbers left to guard the bank...

# posted by

Mista Whiskas : 6:48 PM

"from a precedential standpoint, it is already established that those "Persons" are not every live body. Which is 90, 95% of the way, legally, to where Trump wants to be."

More like 2% of the way given, again, the term is very broad and only has one explicit qualification which, of course, would only apply here via some post-modernist living constitutionalism. What comports much closer to the broad, explicit language would be an exception for a very narrow group of people such as embassy people.

# posted by

Mista Whiskas : 6:51 PM

Articles of Confederation

Article IV: The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be sntitledto all the privileges and immunities of free citizens in the several states...

Constitution

Preamble: We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Article I, sec. 2: 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.

14A: 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.

When read in para material, these provisions suggest the People of the United States, who established the Constitution to secure freedom for themselves and their children, are the free inhabitants and citizens of the Articles, free persons of Article I and the persons of the 14A.

The idea that foreign citizens established the Constitution of the United States of America and a Congress to represent them and thus should be included among the persons counted to apportion that Congress is absurd on its face.

# posted by

Bart DePalma : 7:43 PM

Moving past use of terminology etc., to focus on the text.

Jurisdiction comes up as to citizenship: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." Then, there is a reference to "persons" (not just citizens) having due process and equal protection rights.

We move to the second section. "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."

Tourists. Like business travelers and the like, as ML basically said, they are not "in" each state as a matter of domicile. They are just there temporarily. They also would not become "citizens ... of the state wherein they reside [at the moment]."

What about diplomatic personnel. Somewhat surprising (to me at least) they HAVE been counted. It warrants repeating, I think:

Most such personnel living in the U.S. are counted as State inhabitants, however. The only diplomats who the Census Bureau has sometimes excluded from the census count are those living in foreign nations’ embassies, which aren’t deemed to be in the United States for certain legal purposes.)

Embassies are not "in" each state -- they are foreign ground. And, even THERE, ML says "sometimes" they are counted. Anyone who is "in" each state, even diplomatic personnel, are counted. By "residence."

It really isn't that complicated. It might feel wrong. Some people think it is wrong if someone is born here and become a citizen when the parents are not documented. They even at times give these people crude names. The great dissenter of Plessy v. Ferguson would have given a stricter rule for those born of parents still bound to China.

But, over one hundred years ago, since precedent has been cited, the Supreme Court rejected that approach. "All persons" means "all persons." And, "persons in each state" means just that. Criminals are counted. People here undocumented, which was not really a much a thing until the late 19th Century anyhow, are counted. Again, even diplomatic personnel not residing in embassies (and even some of them!) are counted.

I realize that text often is not crystal clear. Freedom of speech doesn't mean all regulations of speech is unconstitutional. But, some text is pretty clear.

# posted by

Joe : 8:30 PM

Since GM focuses on it, it would be helpful to quote the rest:

"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."

He shows in his writings that later amendments were understood to be read with this so that women and 18-21 year olds are not exceptions now. The breadth of the "other crime" provision also is unclear as a whole. But, I put that aside. Note too that when citizenship or some other status matters, the amendment says so.

This covers a lot of ground. IN ANY WAY ABRIDGED. The article cites a late 19th Century case that seems to limit its reach, but I wouldn't put much stock in its vague language especially given the restrained view of personal rights in general at the time. The text has limited exceptions. For everyone else whose right to vote is even abridged (not totally denied), they should not be counted for representation.

The article cites various examples. Literacy. Property restrictions. Character. Military service. etc. Some sort of id requirement could "abridge" the right to vote. Not deny. Abridge. Requiring people to stay on line for hours to vote. Requiring total payment of fines and court costs that the state is not even clear about. [This last one is more unclear with the "crime" exception though some other constitutional provision might arise, such as due process. Such costs very well might not be "criminal" but civil in various cases.]

# posted by

Joe : 8:50 PM

Bart: The idea that foreign citizens established the Constitution of the United States of America and a Congress to represent them

Straw man alert.

and thus should be included among the persons counted to apportion that Congress is absurd on its face.

I do not know why American citizens chose to count resident foreign citizens for apportionment. But per the plain text of the Fourteenth Amendment, they did, and thus the reasons are immaterial.

# posted by

just_looking : 8:57 PM

"is absurd on its face."

What's absurd on its face is trying to dance around and deny that the 14th Amendment clearly distinguishes between 'citizens' and 'persons.' And it's *not* the former that are to be used for apportionment, but the latter.

Again, if this guy ever claims to be for the 'law as written,' laugh, and laugh loudly and long.

# posted by

Mista Whiskas : 9:12 PM

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# posted by

Bart DePalma : 10:18 PM

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# posted by

Bart DePalma : 10:19 PM

just_looking said... I do not know why American citizens chose to count resident foreign citizens for apportionment. But per the plain text of the Fourteenth Amendment, they did, and thus the reasons are immaterial.

The 14A nowhere states the census shall include foreign legal residents, but not foreign visitors or diplomats. There is no textual basis for including one group of foreign citizens and not another in apportionment. Congress enacted this policy by statute and no one has challenged it.

Indeed, the 14A expressly excluded from apportionment Indians who lived within the territorial United States for centuries before the United States existed because they were not considered part of our People. This does not suggest an intent to count resident foreign citizens.

Because we all agree "persons" does not refer to all human beings present within our borders and the census can exclude foreign citizen, then the only principled textual definition for persons are members of our People or citizenry.

# posted by

Bart DePalma : 10:20 PM

Brett: The 14A nowhere states the census shall include foreign legal residents, but not foreign visitors or diplomats. There is no textual basis for including one group of foreign citizens and not another in apportionment.

It is reasonable to interpret "persons in each state" to include all who have their usual residence in a state, but to exclude non-resident visitors.

# posted by

just_looking : 10:48 PM

BD: The 14A nowhere states the census shall include foreign legal residents, but not foreign visitors or diplomats. There is no textual basis for including one group of foreign citizens and not another in apportionment.

just_looking: It is reasonable to interpret "persons in each state" to include all who have their usual residence in a state, but to exclude non-resident visitors.

"In state" merely designates the persons' location, not their duration in that location.

# posted by

Bart DePalma : 11:18 PM

"In state" merely designates the persons' location, not their duration in that location.

If that were the case, then the text would require the inclusion of foreign-citizen residents and visitors because the plain meaning of "persons" cannot be limited to citizens.

# posted by

just_looking : 12:12 AM

Oh FFS Bart, Marty dealt with this precise point:

Indeed, the Census Bureau’s rules for the 2020 census state that its procedures “are guided by the constitutional and statutory mandates to count all residents of the several states” (citing, inter alia, 13 U.S.C. § 141(a)). The Bureau defines a resident “in accordance with the concept of ‘usual residence,’ which is defined by the Census Bureau as the place where a person lives and sleeps most of the time. . . . This concept of ‘usual residence’ is grounded in the law providing for the first census, the Act of March 1, 1790, expressly specifying that persons be enumerated at their ‘usual place of abode.’”

So, for example—and of most pertinence for present purposes—the Bureau prescribes that citizens of foreign countries living in the United States are to be “[c]ounted at the U.S. residence where they live and sleep most of the time.”

He laid out both the current rules and the history of who is counted by the Census. You can keep making up stories about what you wish were true, and you're entitled to wish it with all your heart. But that doesn't make it so.

# posted by

PaulDavisTheFirst : 12:39 AM

"the only principled textual definition for persons are members of our People or citizenry."

No State shall make or enforce any law which shall abridge the privileges or immunities of *citizens* of the United States; nor shall any State deprive any *person* of life, liberty, or property, without due process of law; nor deny to any *person* within its jurisdiction the equal protection of the laws.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of *persons* in each state,

# posted by

Mista Whiskas : 3:25 AM

What is this, the adverse possession theory of representation? Somebody enters the country illegally and manages to evade law enforcement, they count towards apportionment?

Invading troops are people, too. Good thing we've never been invaded during a census.

# posted by

Brett : 7:19 AM

Unless you think those who "evade law enforcement" are not *persons*, then yes we do.

# posted by

Mark Field : 8:37 AM

PaulDavisTheFirst said... Oh FFS Bart, Marty dealt with this precise point:

Marty is citing a statute of Congress, which I noted above.

I am discussing the meaning of 14A "persons" in this context.

# posted by

Bart DePalma : 8:40 AM

BD: "the only principled textual definition for persons are members of our People or citizenry."

Mr W: No State shall make or enforce any law which shall abridge the privileges or immunities of *citizens* of the United States; nor shall any State deprive any *person* of life, liberty, or property, without due process of law; nor deny to any *person* within its jurisdiction the equal protection of the laws.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of *persons* in each state,

Focusing on the 14A alone, persons can mean every human being or the citizenry.

When you view the 14A in para materia with the rest of the Constitution and the fact no one believes all human beings should be counted for apportionment, then the only principled textual definition for persons are members of our People or citizenry.

# posted by

Bart DePalma : 8:45 AM

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# posted by

Joe : 9:53 AM

Since I don't see a correction ...

As Marty Lederman noted, diplomatic personnel were counted. Even some who reside in embassies though those sometimes are not.

Tourists like business travelers etc. are not. They are not "in" the state for this purpose. They are not residents. It doesn't turn on having the right documents. Or following the law (criminals are counted). Or any number of thing that feels right. It simply turns on residence per the rule Marty Lederman cited. Since the 1790s. So, back then, even slaves were counted. Fugitive slaves too. If fractionally.

Yes, people here for ten years without documentation are "persons." That seems to throw some people. OTOH, don't you dare require for profit corporations to donate to campaigns at a certain point before an election via a PAC. CENSORSHIP!!!!!!

# posted by

Joe : 9:56 AM

I find it a little odd that originalism hasn't been a topic in this thread. As I understand it, until sometime in the late 1800's, the process of immigrating and subsequently becoming a citizen amounted to coming to the country, establishing a residence, and then, after a certain amount of time (years), simply asserting one's wish to become a citizen.

Of course, during the period between coming to the country and gaining citizenship (and even after, for the first part of the century, if one did not have the requirements for being allowed to vote) -- one would be counted for the purposes of representation.

In that frame of reference the actions of Trump this week would be obviously a violation of existing law.

Of course, there have been laws passed since that time which have modified the conditions for citizenship -- but no laws that I've ever heard of which changed the tradition of counting "persons" for the purpose of representation calculations.

Finally: In the long run, we're all just tourists in this world.

# posted by

C2H5OH : 10:15 AM

Originalism isn't a big thing for many of us here. For others, it's a selective thing.

But, the historical background is helpful. The idea of an "undocumented" or "illegal" immigrant would be fairly foreign so to speak for much of our history. Inhibiting migration into the west was an abuse cited in the Declaration of Independence. Several places allowed non-citizens to vote. This is thing a few places even today. Can add that special documentation requirements especially in a pre-computer age was much less a thing. Times change there so that only tells us so much but if one wants to talk about history, guess we can toss that in.

This is not to say there was not anti-immigration sentiment. But, this only helps the case for a broad reading since the people behind the 14A often explicitly opposed that sort of thing. Lincoln, e.g., was a moderate. He spoke against the Know Nothings.

And, there were limits on entry -- e.g., blacks were kept out of certain states, and broad power was given to states (more than later on) to restrict entry including for the likes of poverty or disease (see, e.g., New York v. Miln, partially overturned in Edwards v. California). Again, this sort of thing along with a restrictive meaning given to the rights of blacks above and beyond basic egalitarian rhetoric and actual constitutional text (see, e.g., Dred Scott v. Sandford) was more for those who opposed the 14A. And, strong opposition to restrictions could be found early on; it was a major political battle in the 1790s. Both on federalism and individual liberty grounds.

The 14A was carefully crafted, including broad language covering "persons."

I like the tourist line. Note that even "Native Americans" years back were once immigrants.

# posted by

Joe : 10:43 AM

I assume most Trumpists agree with the chant at Trump's Mt. Rushmore speech that Native Americans should "go back where they came from".

# posted by

Mark Field : 11:05 AM

Focusing on the 14A alone, persons can mean every human being or the citizenry.

Your insistence that "persons in each State" in Section 2 is limited to those two choices remains unpersuasive.

# posted by

just_looking : 11:05 AM

"Focusing on the 14A alone, persons can mean every human being or the citizenry."

the 14th Amendment clearly distinguishes between 'citizens' and 'persons.' And it's *not* the former that are to be used for apportionment, but the latter.

# posted by

Mista Whiskas : 11:24 AM

"Somebody enters the country illegally and manages to evade law enforcement"

Under the terms of some sentences those sentenced are often required to stay within or without certain states. If a person required to stay in North Carolina or out of South Carolina illegally goes to South Carolina and lives there with his mother he's counted as in South Carolina, isn't he? The Census is not about determining legality of where people live, but merely where they actually live.

Again, the terms of the 14th are clear. Persons are clearly distinguished from citizens in Section 1 and it is specifically Persons that are, per Section 2, to be counted for apportionment. Birchers might not like this, but then they should follow their own advice in analogous situations and change the law if they don't like it or think it 'works.' Instead they want to engage in extra-order 'living constitutionalism.'

# posted by

Mista Whiskas : 11:43 AM

BD: "Focusing on the 14A alone, persons can mean every human being or the citizenry."

Mr. W: the 14th Amendment clearly distinguishes between 'citizens' and 'persons.' And it's *not* the former that are to be used for apportionment, but the latter.

No.

The text works if persons are synonymous with citizens or means all human beings. The former meaning works better because the apportionment language excludes resident "Indians not taxed."

# posted by

Bart DePalma : 12:01 PM

"The text works if persons are synonymous with citizens or means all human beings."

Section 1: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

This ONLY makes sense if there is distinction between persons and citizens. So the synonymous interpretation cannot be true. If the terms are synonymous, then this sentence is tautological.

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."

Which also only makes sense if the use of "persons" would otherwise have included Indians. Since Indians were not citizens, this just emphasizes that the term "persons" covers more than citizens. If "person" meant "citizens", then they could have simply said "citizens" and dropped the "Indians not taxed" clause, since they were not citizens. Instead, they used "persons" which would naturally include non-citizens, and then explicitly excluded Indians.

I cannot see any other possible consistent reading of this.

# posted by

PaulDavisTheFirst : 1:02 PM

"I assume most Trumpists agree with the chant at Trump's Mt. Rushmore speech that Native Americans should "go back where they came from"."

Wow, you DO live on counter-Earth. I always suspected it.

# posted by

Brett : 1:30 PM

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# posted by

Bart DePalma : 1:35 PM

PaulDavisTheFirst:

I agree the drafters of the 14A did not use the term "persons" consistently. Using your example, Sections 1 and 2 do not work together because "Indians not taxed,"who are "born...in the United States," should be citizens under Section 1, but are not counted for apportionment under Section 2.

Thus, I have noted I am discussing the definition of the term "persons" in the context of Section 2 apportionment read in para materia with the rest of the Constitution and the purpose of apportionment.

instead, they used "persons," which would naturally include non-citizens

I understand your exploitation of the inconsistency in usage. The problem with your argument is no one believes nor has Congress ever included all non-citizens "in each state" for apportionment.

The purpose of the citizenry electing Congress is to represent its will in the government. Thus, apportioning House seats by including non-citizens in general makes no functional sense. Including foreign invaders, diplomats and tourists is ridiculous on its face. Thus, Congress and anyone interpreting the 14A has always excluded various groups of non-citizens from apportionment.

Because Section 2 nowhere permits partial exclusion of "persons" beyond "Indians not taxed," persons cannot mean all non-citizens "in each state" for apportionment. The only other logical alternative is persons means citizens - the folks electing Congress to represent them in the government.

# posted by

Bart DePalma : 1:37 PM

"Which also only makes sense if the use of "persons" would otherwise have included Indians."

Well, yes. I've said this: There is precedent that "persons" doesn't include every warm body in the country during the Census, though a strict textual reading would imply that.

So, from a textual standpoint, Trump's EO loses, but from that same standpoint, routine practice in previous censuses was unconstitutional. So Trump does have some precedent in his favor.

However, there is that line about "Indians not taxed"; Such Indians were the only sizable group of non-citizens in the country at the time. We now have another, comparably large group of non-citizens in the country. Is it possible that they are, for Census purposes, "Indians", just as websites are protected under freedom of the press, though no printing press is involved?

I think this is the best originalist approach to defending the EO: Illegal aliens are today's "Indians".

No, the federal government mooted that line many moons ago, by enacting a law naturalizing all indians within our borders. I understand Biden is proposing to do the same with illegal aliens. That would certainly settle the issue.

# posted by

Brett : 1:39 PM

https://nativenewsonline.net/currents/american-indian-protesters-told-to-go-home-by-trump-supporters-at-mount-rushmore

# posted by

Mark Field : 2:28 PM

Bart: I agree the drafters of the 14A did not use the term "persons" consistently. Using your example, "Indians not taxed,"who are "born...in the United States," should be citizens under Section 1, but are not counted for apportionment under Section 2.

I see no inconsistency. Indians who are not taxed aren't 14th-Amendment citizens because they are not subject to the jurisdiction of the United States.

Bart: no one believes nor has Congress ever included all non-citizens "in each state" for apportionment.

Brett: There is precedent that "persons" doesn't include every warm body in the country during the Census, though a strict textual reading would imply that.

Both of your arguments continue to depend on the faulty interpretation of "in each state" to mean "physically located in" rather than "usual residence in."

# posted by

just_looking : 2:28 PM

"Such Indians were the only sizable group of non-citizens in the country at the time."

The freed slaves were only citizens thanks to Sec. 1 of the 14th A. And whether Latinos in, say, TX were citizens was very controversial.

# posted by

Mark Field : 2:30 PM

"The freed slaves were only citizens thanks to Sec. 1 of the 14th A."

If you regard Dred Scot as good law, anyway. I don't.

"Both of your arguments continue to depend on the faulty interpretation of "in each state" to mean "physically located in" rather than "usual residence in.""

Actually, what we're concerned with is one's legal residence. We don't believe an illegal residence should be used for legal purposes.

# posted by

Brett : 4:13 PM

Since it didn't have the benefit of your expert legal advice, Congress regarded Dred Scott as good law and passed a Constitutional amendment to reverse it. But no doubt the good citizens of SC back then agreed with you.

# posted by

Mark Field : 4:33 PM

If you regard Dred Scot as good law, anyway. I don't.

Dred Scott v. Sandford could be bad law & just what the test was for federal citizenship could still be up in the air, there being multiple understandings of actually how one became a federal citizen. One basic reason for the 14A was to clarify just what the law is on this and other matters, including for those who did not think the 13A alone gave the power to Congress to define citizenship as it did.

Actually, what we're concerned with is one's legal residence. We don't believe an illegal residence should be used for legal purposes.

Is this the royal "we"?

The text speaks of residence. It doesn't determine why a person resides there. Diplomatic personnel are counted. Tourists are not "residing" there. They are transients. A person there for an extended time is no longer a tourist. They are residing. You want to add things not there.

# posted by

Joe : 5:19 PM

I've said this: There is precedent that "persons" doesn't include every warm body in the country during the Census, though a strict textual reading would imply that.

A strict textual reading doesn't cause much problems. Tourists and such are transients. They are not "in" the state for this purpose. But, basically, as Marty Lederman noted, since the 1790s, residence is the test. That people who are actual residing there, not transients. Even diplomatic personnel were counted here, at least those outside embassies.

So Trump does have some precedent in his favor.

He doesn't. Marty Lederman explained this in detail. Now, if you use a strawman that the not-Trump position is the "all warm bodies" rule, maybe it helps some. But, strawman. Helps if you add your confusion about diplomatic personnel.

However, there is that line about "Indians not taxed"; Such Indians were the only sizable group of non-citizens in the country at the time.

First, the language is lifted from the original enumeration provision in Art. 1. Second, no. There were quite a few people who were non-citizens. Citizenship came by birth or naturalization. There remained quite a few people who were not citizens yet. A large chunk at the time -- a controversial group -- were Chinese who came in as labor in the West. Many didn't want such Asians ever to be citizens and eventually that actually became federal policy into the 20th Century.

We now have another, comparably large group of non-citizens in the country.

So, a misguided amendment should be ratified to address them? Since only liberals 'make shit up' to fit the law to the times? (/snark) Oh no. A joker ...

Is it possible that they are, for Census purposes, "Indians", just as websites are protected under freedom of the press, though no printing press is involved?

Well, even if we take that seriously, it says "not taxed." Undocumented immigrants are taxed. Actually, that exception appears to be obsolete since all Native Americans (citizens by statute if not by birth) are now taxed. 39 Op. Att’y Gen. 518.

Brett has said that he thinks "press" is a function. So, you don't need a "printing press" to be "press." Using basic language, words on a computer screen is "the press" as much as words on type. Here we are stretching "Indians" to mean any person world-wide who are not documented. By logic, though I think it is a fool game to take this too seriously, the Indian Commerce Clause now has a new component that applies to some undocumented Canadian immigrant. Not, as a sane use of language determines, to actual Native Americans as that term is normally used.

I think this is the best originalist approach to defending the EO: Illegal aliens are today's "Indians".

Talk about forcing a round peg in a square hole.

No, the federal government mooted that line many moons ago, by enacting a law naturalizing all Indians within our borders. I understand Biden is proposing to do the same with illegal aliens. That would certainly settle the issue.

Yes, like the 3A, the Indians not tax provision largely is a historical curiosity. But, Brett wants to make "illegal" white French people or whatever the new Indians. Congress changing documentation rules won't settle the issue with that level of creativity.

# posted by

Joe : 5:52 PM

Brett: Actually, what we're concerned with is one's legal residence. We don't believe an illegal residence should be used for legal purposes.

I'm pretty sure Bart departs from your viewpoint. He believes the 14th Amendment should be interpreted such that no foreign citizen is counted towards apportionment.

Your argument distinguishes between legal and unauthorized foreign citizens, but I remain unconvinced that the plain text of "person in each State" excludes unauthorized foreign citizens who maintain their usual residence in a state.

# posted by

just_looking : 6:12 PM

Such Indians were the only sizable group of non-citizens in the country at the time. We now have another, comparably large group of non-citizens in the country. Is it possible that they are, for Census purposes, "Indians", just as websites are protected under freedom of the press, though no printing press is involved?

This is ludicrous. Laughable. Here we have an argument that a group of people, mostly not Indians, who pay taxes, should be considered "Indians not taxed." This from someone who loves him some plain meaning.

I think this is the best originalist approach to defending the EO: Illegal aliens are today's "Indians".

You could be right, but if so, it doesn't say much for originalism as anything but a sham.

# posted by

byomtov : 8:14 PM

"The text works if persons are synonymous with citizens or means all human beings. The former meaning works better because the apportionment language excludes resident "Indians not taxed.""

This is laughable. It's the exact opposite. Of course the fact that they had to name the exception demonstrates that everyone else falls into the natural definition of the broad term.

What's clear is that 'citizens' doesn't work because Section 1 *clearly* indicates that persons =/= citizens, that citizens are a *subset* of persons, meaning there's other people than citizens included. Again, the fact that they had to explicitly identify the exception bolsters the point.

# posted by

Mista Whiskas : 5:36 AM

"I have noted I am discussing the definition of the term "persons" in the context of Section 2 apportionment read in para materia with the rest of the Constitution and the purpose of apportionment."

Lol! Bircher's argument is 'well, it's true my reading of the term persons in Section 2 doesn't make sense with how it's used in the *immediately preceding section 1,* but it makes sense if you read it in conjunction with the Articles of Confederation, the pre-amble of the Constitution and an a-textual reading of what I see as the purpose of apportionment!'

This is like a kooky konservative karicature of living constitutionalism, but on steroids.

# posted by

Mista Whiskas : 5:40 AM

"Illegal aliens are today's "Indians"."

Remember our Birchers threw a fit when the alleged living constitutionalists argued that a referendum could be said to be today's 'legislature' for apportionment purposes. Also, remember Bircher's moaning that 'it doesn't matter if modern changes make the language in the text seem obsolete, not working or absurd, then change [amend] the language!' Yet when faced with his perceived demographic threat Bircher turns migrants into Indians...Indians had a plain meaning when the 14th was written, and it certainly wasn't 'any migrant non-citizen.' (also, Indians weren't 'here illegally' either).

This is functional, not textual analysis (heck, it's post-modernist functionalism).

As to the importance of 'legal residence,' again, certainly a person, let's say a citizen, who, in violation of a probation or parole agreement or terms of sentence, who is actually residing in a state when the Census is taken should be counted where he actually is residing and not on where he 'legally' ought to. Likewise, consider children that are, in violation of a separation or divorce decree, residing with a non-custodial parent in another state (let's say the parent in the right just isn't pressing the issue for whatever reason)-should we count them as in the state they 'ought' to be in?

# posted by

Mista Whiskas : 5:49 AM

Bart: I agree the drafters of the 14A did not use the term "persons" consistently. Using your example, "Indians not taxed,"who are "born...in the United States," should be citizens under Section 1, but are not counted for apportionment under Section 2.

Just_looking: I see no inconsistency. Indians who are not taxed aren't 14th-Amendment citizens because they are not subject to the jurisdiction of the United States.

The only requirement of 14A citizenship is to be natural born in the United States.

Are you really arguing the Indians are not subject to the jurisdiction of the United States?

Bart: no one believes nor has Congress ever included all non-citizens "in each state" for apportionment.

Brett: There is precedent that "persons" doesn't include every warm body in the country during the Census, though a strict textual reading would imply that.

Just_looking: Both of your arguments continue to depend on the faulty interpretation of "in each state" to mean "physically located in" rather than "usual residence in."

"In" simply means physical location within a state at the time of the census. "In" has no residential meaning. Congress created that distinction.

# posted by

Bart DePalma : 9:25 AM

BD: "The text works if persons are synonymous with citizens or means all human beings. The former meaning works better because the apportionment language excludes resident "Indians not taxed.""

Mr. W: This is laughable. It's the exact opposite. Of course the fact that they had to name the exception demonstrates that everyone else falls into the natural definition of the broad term.

Or the drafters of the 14A, after expressly making natural born Indians citizens in Section 1, had to expressly state in Section 2 that Indians would not count with the rest of the citizenry for the purposes of apportionment.

# posted by

Bart DePalma : 9:45 AM

"The text speaks of residence. It doesn't determine why a person resides there."

Likewise, the 5th amendment speaks of private property, it doesn't determine whether that ownership is lawful. That's why when the legal system takes from a burglar the goods he has stolen, and returns them to their rightful owners, the burglar must be paid compensation.

Right?

# posted by

Brett : 9:47 AM

Section 2 makes it clear that there's one textual exception to what Persons should be enumerated, Indians not-taxed (that is, subjects of recognized Indian nations). Section 1 makes it clear Citizens =/= Persons. Citizens are granted P&I rights, but its Persons that are granted DP and EP rights.

And it's Persons, not Citizens, that Sec. 2 says should be counted for apportionment.

# posted by

Mista Whiskas : 10:05 AM

"the 5th amendment speaks of private property, it doesn't determine whether that ownership is lawful. That's why when the legal system takes from a burglar the goods he has stolen, and returns them to their rightful owners, the burglar must be paid compensation."

Again, this analogy doesn't work here. State legal residence requirements often, to my knowledge, don't require one to be a documented migrant in the federal sense (indeed, it's not only possible for undocumented migrants to pay state income taxes, it actually occurs quite a bit).

Secondly, as I've noted, if a citizen is in a state 'illegally' they get counted as being in the state.

Unlike property determinations, the Census isn't about the legal status of any resident, just residency.

There's a good reason for this (sans the most important one: that it's what the text of the Constitution literally calls for): government does all kinds of things for, and to, those who are here intending to 'live' here that it doesn't do (or for the same reasons) for, say, tourists, or invading armies or whatever. It's fair to consider them in apportionment of the districts in which they reside. They can't vote (apart from Bircher fever dreams), so it's not like they take over the district in any way. But the voters in that district (the People) won't get screwed out of representation and services needed/warranted.

It's in the same vein I think as to why we count, say, children or convicts who can't vote but who need 'representation.'

# posted by

Mista Whiskas : 10:14 AM

Likewise, the 5th amendment speaks of private property, it doesn't determine whether that ownership is lawful. That's why when the legal system takes from a burglar the goods he has stolen, and returns them to their rightful owners, the burglar must be paid compensation.

The 5A speaks of due process of law. So, yes, it does determine whether seizure of property by the government without compensation is appropriate. The Takings Clause specifically speaks of "just" compensation. That would include payment to the lawful owner, not a burglar, of the private property in question.

OTOH, as has been spelled out by Marty Lederman et. al., the text and history of the 14A provision does not match your very confused reading.

# posted by

Joe : 10:28 AM

Bart: The only requirement of 14A citizenship is to be natural born in the United States.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

Bart: Are you really arguing the Indians are not subject to the jurisdiction of the United States?

Yes, as the Court did in Elk v. Wilkins.

Bart: "In" simply means physical location within a state at the time of the census. "In" has no residential meaning.

This repeated claim is at best (for your case) one way to interpret ambiguous text. The problem with your interpretation is it leads to the absurd conclusion that all persons physically located within a state when the census is taken, including foreign-citizen tourists, are counted for apportionment. You attempt to get around this absurdity by arguing "persons" means "citizens" does not fly because there is no ambiguity in "persons" that allows you to substitute "citizens" in its place.

# posted by

just_looking : 10:40 AM

BD: The only requirement of 14A citizenship is to be natural born in the United States. Are you really arguing the Indians are not subject to the jurisdiction of the United States?

just_looking: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

The United States and its states have repeatedly exercised often deadly jurisdiction over the Indians within their respective jurisdictions.

Bart: Are you really arguing the Indians are not subject to the jurisdiction of the United States?

Yes, as the Court did in Elk v. Wilkins.

In a complete bullsh_t ruling, the Court held, even though Elk was born in the United States, he was not a citizen because he owed allegiance to his tribe when he was born rather than to the U.S. and therefore was not subject to the jurisdiction of the United States when he was born. Whether the government exercises jurisdiction over you and whether you owe allegiance to a tribe are two very different things. Congress had to overrule the Court to reverse this obviously outlaw ruling.

# posted by

Bart DePalma : 11:23 AM

Congress had to overrule the Court to reverse this obviously outlaw ruling

Congress did the right thing by statutorily granting Indians birthright citizenship. Nonetheless, the 14th Amendment does not grant Indians birthright citizenship.

Thus, your argument that "persons" in Section 2 means "citizens" because Indians were granted birthright citizenship in Section 1 does not hold water.

# posted by

just_looking : 12:04 PM

It also doesn't hold water because the textual grant of P&I rights to 'citizens' but the distinction that EP and DP rights are for 'persons' would lead any non-motivated reasoning to see the two things are not the same.

# posted by

Mista Whiskas : 12:52 PM