The Thirty-Ninth Congress Included Persons Illegally Present in the United States in the Basis of Representation

Guest Blogger

Michael L. Rosin

You need to know only one number from the 1860 census in order to understand why Northern Republicans in the Thirty-Ninth Congress so expansively embraced aliens in the basis of representation they were reshaping for the apportionment of seats in the House of Representatives.

The 1860 census counted only 6% of the foreign born residing in the eleven states that would rise in rebellion. The remaining 94% of the foreign born resided in the states that did not. (See p. xxix. For further details see pp. 85–87.) Any proposal to exclude significant numbers of the foreign born from the basis of representation would shift power away from the loyal states to the states that had risen in rebellion.

There was, however, one segment of the foreign born who resided almost entirely in the states that had risen in rebellion: enslaved persons of color brought into the United States in contravention of the 1807 Slave Trade Act. The 1819 Slave Trade Act “authorized” the President of the United States was “to make such regulations and arrangements as he may deem expedient for the safe keeping, support, and removal beyond the limits of the United States, of all such negroes, mulattoes, or persons of colour[.]”

Such persons who had been illegally imported into the United States were, nevertheless, not legally present in the United States. Excluding them from the basis of representation would not shift power to the states that had risen in rebellion. In fact, it might even shift power away from those states and that would have been politically advantageous to Northern Republicans.[*] Of course, no one in the Thirty-Ninth Congress even suggested that these formerly enslaved persons – who had been illegally imported into the United States – be excluded from the basis of representation.

The Census Bureau’s recent Proposed Residence Criteria for apportionment of House seats among the states based on the 2030 census states

Given the historical meaning of “usual residence” as tied to allegiance, durable permission from the sovereign to settle within the United States, and establishment of domicile within the United States, the Census Bureau proposes to include lawful permanent residents within the apportionment base, while excluding from the apportionment base illegal aliens and aliens whose legal status is less durable and indefinite in length than lawful permanent resident status. (See p. 57526. Emphasis added)

Chin and Finkelman have demonstrated the Thirty-Ninth Congress was aware that there were  formerly enslaved persons who had been brought into the United States in violation of the Slave Trade Acts and were still not legally present in the United States. (See pp. 2243, 2259–60.) That Congress could hardly have meant to exclude them from the basis of representation. Yet that is exactly what would have happened under the terms of the Census Bureau’s recent Proposed Residence Criteria.

Michael Rosin is an independent scholar whose work focuses on the electoral college and everything it is built on. You can reach him by e-mail at mlrosin@att.net.