Balkinization  

Tuesday, March 27, 2018

The Wrong Section 2

Gerard N. Magliocca

Yesterday the Commerce Department announced that a citizenship question will be included on the next census. Secretary of Commerce Wilbur Ross stated that the addition of this question would generate data that would be helpful "for determining violations of Section 2 of the Voting Rights Act," which "protects minority population voting rights." The Commerce Secretary also concluded that the concern that fewer non-citizens will respond to a census that includes a citizenship question were unfounded. Several states are considering a challenge to this proposed change. Presumably, they will argue that the decision to add a citizenship question reflects a discriminatory intent that violates the Fourteenth Amendment.

While there are many ways of assessing the Department's intent, here's one that I want to throw out there. I find it strange that a Commerce Department (responding to a DOJ request) interested in asking a citizenship question to protect voting rights would choose not to ask that question about Section 2 of the Fourteenth Amendment. If the Department really wants more information about our citizens to protect their voting rights, then the most straightforward way of doing so would be to ask how many of them were unable to vote and for what reason. There is precedent for this in the 1870 census form, as my forthcoming article explains.

The actual census question being proposed, by contrast, is uninterested in whether citizens can or cannot vote. This strikes me as a poor tool for improving voting rights, though it might be a fine way of reducing the count of non-citizens.

Comments:

A point that occurs to me is that, in practice, pretty much all modern reasons somebody "couldn't" vote are arguably not of 14th amendment significance. (The exception being psychiatric disenfranchisement.) The relevant question is whether they've been deprived of their right to vote in specific sorts of elections, for a reason other than participation in rebellion, or other crime.

Being deprived of the right to vote, in this context, appears to me to relate to whether or not the person is legally entitled to vote, under the laws of the state. Not whether they failed to comply with some procedural requirement such as registering in advance, or identifying themselves. It has to be illegal for them to vote, not merely inconvenient.

That implies some sort of state or local law. People being illegally prevented from voting is likely a criminal matter, not constitutional. Is questioning individuals the best way to ascertain the existence of a law?

I can understand the desire to ask the question, as a matter of generating grist for the PR mill. But you only get to do that sort of thing when your guys are in power, Trump isn't going to have much interest in playing up the number of people who can't legally vote due to the (constitutionally acceptable!) reason of criminal conviction, or who simply don't bother because it's inconvenient.
 

"who simply don't bother because it's inconvenient."

Here's the problem, and the easy dismissals of ostensible 'libertarians' should be noted. After 9/11 state and local governments made it much more cumbersome to get 'valid id' that these voting laws require. Now you need to have two or three forms of ID to get the ID required for voting. This means you have to get things like your social security card, birth certificate, etc., that most people don't regularly use, and to get them you have to take a trip to several government bureaucracies and pay several fees.

So, take a person who is a poor, elderly shut in. They don't regularly use the required ID because they rarely go out, and the few times they call in a favor and get a ride and do no one is going to 'card' them because the people they deal with know them. But now they are going to get 'carded' at the voting precinct they've gone to and voted all their long life. Everyone there knows who they are, but they're going to be barred their fundamental right to vote. Unless they call in those rare favors and take several trips to several government agencies and pay several fees to get the paperwork required to get their voting ID.

Now, notice that ostensible libertarians, in other settings, are all about how government setting up hoops for people to jump through will discourage people from exercising what they think of as important liberties. Regulation and licensing obligations, they will tell you, cut off the poor and those that are not bureaucracy-savvy. Background checks for guns, to verify the exchanges are following existing laws, are horrible infringements on the rights of the law abiding.

But when it comes to voting and the realities I point out, they are quickly and easily and cheaply dismissed. People just don't want to jump through the easy hoops, so who cares if their votes are not counted? This quick switch in principles tells you a lot. They just don't want those people voting.

I mean, I can understand if they're worried about voter fraud. Democrats and liberals often make too much, in my opinion, about these laws. But the cheap and easy way that ostensible libertarians dismiss how cumbersome the layers of bureaucracy that exist for many people on the margins to get the required 'voting ID' says a lot to me about how much they really believe in what they say they do and how much it's just PR.
 

My standard response to that is that,

1) I don't want to hear this at all from people who advocate comparable or worse restrictions on the right to keep and bear arms. Either rights should not be burdened, or it's OK to burden them. Make up your mind. Only people who don't want to burden any right have standing to complain about voting being burdened, in my opinion.

2) The appropriate response here was never to demand that voting be put on the honor system, but instead that the process to get reliable ID be made easier. And yet that's, conspicuously, not the way most voting rights activists have gone. They're always pushing the honor system.

But there's a fundamental reason voting shouldn't be on the honor system: You don't have a free floating right to vote, the way you do to exercise other rights. You have a right to cast one person's ballot, in one place, once per election.

This makes having to prove that you're that one person a legitimate aspect of exercising the right.

"They just don't want those people voting."

Yes, that's true. Voting isn't just some symbolic act of engagement. It sets policy, choses the people who run the government. So, no, I don't want apathetic people voting, people who can't be bothered to inform themselves about what they're voting on. Only engaged people.

Being willing to go to some procedural trouble is a proxy for engagement. Could we use a better proxy? Sure, suggest one. I'd actually prefer just getting rid of pre-printed ballots, instead, and only allow people to vote for candidates they can name.
 

"Either rights should not be burdened, or it's OK to burden them. Make up your mind."

I don't think Brett gets that this is my point but about people like him. When it comes to licensing, regulation, background checks they're all like 'government barriers infringe the right!!!' but with voting they're like 'pfft, if you can't go to the agencies, fill out the forms, pay the fees, etc., then you shouldn't even be exercising the right!'

And these people call themselves 'libertarians'!

"The appropriate response here was never to demand that voting be put on the honor system, but instead that the process to get reliable ID be made easier. "

One wonders why the people proposing the burdens don't want to ease the process to get reliable ID.

""They just don't want those people voting."

Yes, that's true."

Well, one doesn't really have to wonder. Like I said at the beginning, it all boils down to the idea that these people are just not bothered by the idea that someone who has the right to vote might be prevented by these obstacles they put in their place, *they like that*! It's a feature, not a bug. This should be remembered by everyone discussing this, including courts. These policies are defended in bad faith, the people supporting and proposing them actually see them as useful for keeping 'apathetic' (which is how they see people burdened by their requirements, I guess one could say that we don't want someone who is so 'apathetic' about gun ownership that they can't fill out a background check form they shouldn't be able to own one, that someone who is so apathetic that they won't go to the right occupational licensing agencies and fill out the right forms/pay the fee they shouldn't be working in that field, etc) from voting.

"I'd actually prefer just getting rid of pre-printed ballots, instead, and only allow people to vote for candidates they can name."

Why such a half measure? Why not, say, a literacy test, or a poll tax, or maybe a property requirement? Those worked out great in the past to weed out those 'apathetic' voters.

I actually think a physical fitness obstacle course should have to be passed to vote. If you can't get in the shape to do 10 pull ups and run the mile under a certain time you really don't care about voting enough to be doing it!

 

I chuckle at the phrase "ostensible libertarian." Most libertarians are ostensible; rare is the "pure" libertarian. As a wise elder at this Blog has reminders readers here, the mantra of libertarians (of all stripes) is "selfishness uber selflessness."

Brett's closing:

"I'd actually prefer just getting rid of pre-printed ballots, instead, and only allow people to vote for candidates they can name."

indicates that his con law training via this and other legal blogs is overcome by his personal preference uber constitutional requirements regarding voting.
 

"Why such a half measure?"

Because pre-printed ballots have, in practice, become a serious infringement on the right to vote, by allowing states to restrict who you are allowed to vote for. California, for instance, didn't just restrict the general election ballot to winners of the top two primary, they also banned write-in votes.

You're not taking this seriously: Knowing who you want to vote for is a good proxy for an informed vote. Literacy tests are far worse proxies, and taxes or property requirements are no proxy at all for an informed vote.

"indicates that his con law training via this and other legal blogs is overcome by his personal preference uber constitutional requirements regarding voting."

There's no constitutional requirement AT ALL for pre-printed ballots. They were adopted well after the Constitution came into force.
 

Different ideas about what makes a vote 'informed' abound. Many political scientists say it's much better to vote by party than for person. Others say limiting the vote by educational attainment is the better way to ensure an informed vote. Given that different reasonable ideas exist its best to just let each person vote as freely as possible guided by their own sense.
 

Pre-printed ballots date back quite early. See, e.g., http://cdm.bostonathenaeum.org/cdm/landingpage/collection/p16057coll29

All of Brett's arguments slide right past the basic idea of *republican* government. At its core, that means (a) sovereignty of the people; and (b) majority rule. Sovereignty of "the People" means ALL the People. Every single one of them, otherwise it's, by definition, not "the People". This gets back to Locke's state of nature, in which the equal individuals contractually agree on a civil society.

If the People are sovereign, they must have a way to make their collective voice heard. They exercise that power by the process of majority rule. Voting is thus the single most fundamental right in any *republican* government. All other rights derive from the *sovereign* power of the People -- otherwise the People aren't "sovereign".

The argument that we should restrict access to voting by individual members of the People therefore undermines the core idea of republican government. That doesn't mean we need to ignore practicalities such as, e.g., registration. It does mean that every successive requirement to cast a vote is, as MW points out, both a burden on the right and completely inconsistent with Brett's stated views of the less fundamental right of gun ownership.

That's all putting aside the fact that there is no actual problem with "double voting" or "ineligible voting" here in the US. The recent trial in KS showed this, though no one in good faith could have doubted it before anyway. The fact is that American electorates are so large that we can afford to ignore the rare "double vote" and the equally rare "ineligible vote" because they won't sway elections anyway. The existing system of registration works so well, we not only don't need to tighten the requirements, we can afford to loosen them in order to enable fuller exercise of sovereignty.

 

Brett self-represented as a "conservative," so though the term "libertarian" is variable, Mr. W's concerns about disrespect of "vote grabbers" might be confused.

Non-voters, at any rate, have significance here:

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.

Persons. In this case something that "might be a fine way of reducing the count of non-citizens" is problematic. The post after this also notes that even citizens could be negatively affected by the new question. And, it can interfere with an actual count in general. Thus Greg Sargent recently noted:

a letter from former directors of the U.S. Census Bureau, under both Republican and Democratic administrations, which argues that adding the question now would be “highly risky,” could have “unexpected” consequences and will “considerably increase the risks” of an inaccurate count.

Reference is made to a "PR mill." There is a significant chance of problems, including unnecessary expense and wasted effort, of changing a longstanding practice here. A "conservative" might find this troubling even. People in power do get to abuse said power as a matter of raw ability, true, but others of all ideologies can call them out in including regarding the negative race tinged aspects of the whole affair.

Brett has bad-mouthed the "government" in various cases (Shag has noted back in the day he even talked about being an "anarchist" given his druthers) as having a troubling heavy-hand, but Trump - his guy -- is in power. So, shrugs. Unnecessarily upsetting average citizens, in such a way that interferes with a basic duty of counting persons, **** happens.
 

Brett's observation:

"There's no constitutional requirement AT ALL for pre-printed ballots. They were adopted well after the Constitution came into force."

can be said about most laws enacted at both the federal and state levels that involve whether such laws are in conformance with the Constitution. Should voters print out their own ballots to vote on? Is Brett suggesting that maybe oral balloting is preferable to pre-printed ballots? How would oral balloting be recorded? Over the course of time, various requirements for voting have been imposed that have been rejected by SCOTUS as unconstitutional. Is Brett suggesting that pre-printed ballots are unconstitutional? Is Brett's earlier preference:


"I'd actually prefer just getting rid of pre-printed ballots, instead, and only allow people to vote for candidates they can name."

constitutional? Or is Brett's suggestion of blank ballots just Brett's way of shooting constitutional blanks? Might we expect "senior moments" in voting within Trump's base of elderly white voters?

 

I wonder what would happen if millions of citizens declined to answer the citizenship question? And did so as part of a well-publicized campaign?
 

" Is Brett suggesting that pre-printed ballots are unconstitutional?"

No, of course not. OTOH, I'm very dubious about the constitutional status of laws prohibiting write-in votes. THAT seems to me like serious violation of the right to vote, because the state can dictate the winner of an election simply by controlling who's on the ballot.

"I wonder what would happen if millions of citizens declined to answer the citizenship question? And did so as part of a well-publicized campaign?"

Pretty much nothing would happen, I expect.
 

So Brett's problem is with federalism because of the involvement of states in voting procedures?
 

"They were adopted well after the Constitution came into force."

This is somewhat neither here or there.

The practice might have, especially with various changes regarding the size of the population & expansion of suffrage etc., been a better approach to advance constitutional requirements. Generally, later amendments and laws could also warrant changing practices from what was in place in 1787. What is "constitutional" here regarding specific practices often amount to political questions that are a matter of best practices applying details.

FWIW, I think it probably should be deemed constitutionally required to include a write-in option. As Mark Field suggests on a related point, historical practice alone very well might not get us there. "The use of paper ballots in Massachusetts as an official mode of voting dates from the colonial period." etc.

And, even if something was done, it does not mean it had to be done. The Constitution provides a lot of discretion to apply current needs the best way there.

Anyway, perhaps the professor can send a copy of his article to the relevant parties and testify at the relevant hearing if the matter is addressed by Congress.
 

I never said they didn't use paper ballots. The innovation was the state itself requiring you to use it's own pre-printed ballots. (And thus constraining who you could vote for by limiting access to the ballot.)

The ballots Mark linked to weren't printed by the state, they were provided by the party, an early form of straight ticket voting where you just brought in a ballot your party provided, and dropped it in the box, instead of providing your own hand written scrap of paper.
 

That's not at all what you said originally. What you said originally was " I don't want apathetic people voting, people who can't be bothered to inform themselves about what they're voting on. Only engaged people. ... I'd actually prefer just getting rid of pre-printed ballots, instead, and only allow people to vote for candidates they can name."

That has nothing to do with the state limiting access; you just want to restrict the rights of voters to decide how to cast their vote.

*In that context*, you then said "There's no constitutional requirement AT ALL for pre-printed ballots. They were adopted well after the Constitution came into force." That's a factual error which I corrected. It's neither here nor there given the argument you actually made, really, except that it's always best to base a discussion on the actual facts.
 

Yes, I could have been clearer that I meant ballots pre-printed by the government.
 

The innovation was the state itself requiring you to use it's own pre-printed ballots. (And thus constraining who you could vote for by limiting access to the ballot.)

Mark's link touches on why -- "Writing ballots in longhand became a laborious task often requiring the voter to compose a lengthy list. Consequently, printed ballots started to appear." etc. Loose spelling rules alone could cause problems, even for those (a much small number than today) who were fully literate.

In practice, even if there was theoretically a broad range of options, a policy of having set ballots for the leading candidates would be the normal practice. A formalized ballot, especially with expansion of suffrage and officeholders, would be more practical. Leaving in a blank for a write-in or some other mechanism would be practical here too, so the option is appropriate.

I do find it dubious that there weren't also -- over history -- practices in various areas where specific nominees were running & you chose among them. Reference to "raise you hand if you support "x" candidate" or tossing beans in a hat ... this doesn't suggest to me that there was always some open process in each case to choose others.

https://www.newyorker.com/magazine/2008/10/13/rock-paper-scissors
 

Early elections, especially in the South, were pretty raucous affairs. Each candidate supplied barrels of rum, whiskey, etc. which were freely available to the voters. Most voters got drunk, many of them extremely drunk. Voters generally chose a moment to step forward in front of the crowd and loudly declare their choice. Whoever ran the election then made a visible mark for that candidate.

In a frontier setting, with few voters and few candidates, this kind of crude system can work, though the drink meant the choices were, well, less than informed, and the rowdy crowd meant plenty of opportunity for intimidation. But as the franchise expanded, and as more and more offices were contested, it became unmanageable. What happened next was that there would be many election days: one for president, one for the House, one for state legislature, etc.

Then the states began consolidating the election days. Now you had far more voters on a given day, and a whole raft of offices with multiple candidates. Plus, by the time you got to the 1830s, you had recognized parties running actual slates of candidates. At this point, the switch to paper ballots became essential. The paper ballots were usually supplied by the partisans (newspapers, mostly), and straight ticket voting became more common.

At no point in this time did anyone have to "register" to vote, and many states allowed non-citizens to vote. Only after the Civil War did the secret ballot become common, and voting machines began operation shortly thereafter. Since the machines needed standardized forms, that solidified the connection between pre-printed ballots and voting.
 

Gerard:

Citizenship data can also be used to debunk claims of voter discrimination based on disparate impact arguments.

In any case, the purpose of reinstating the old question and is to suppress the participation of illegal aliens, whose current inclusion gives Democrats a half dozen House seats and Blue cities and states an increased share of federal money they otherwise would not have.

The Democrat CA AG’s recent claim this question discriminates against voters is a fascinating Freudian slip from a state which has made it simple for illegals to illegally vote, but denies this voter fraud occurs.
 

"purpose of reinstating the old question and is to suppress the participation of illegal aliens"

It's nice when conservatives give up the game right off the bat. The Constitution uses the term 'numbers' and 'persons' regarding the Census not 'citizens, 'lawful residents' etc.
 

Should we assume, because SPAM is an attorney, that his:

"The Democrat CA AG’s recent claim this question discriminates against voters is a fascinating Freudian slip from a state which has made it simple for illegals to illegally vote, but denies this voter fraud occurs."

can be backed up with evidence to support SPAM's claim? Is SPAM privy to Trump's "evidence" that Trump claims deprived him of millions of votes?
 

Mr. W:

As we discussed before, the idea illegal aliens are a legal part of the people is logically and legally absurd. The only reason Democrats are advancing this facially absurd argument is because it expands their political power and their share of our tax money.

Shag:

Can I assume we now agree Congress should enact a law requiring proof of citizenship to vote in federal elections? This is the only way to gather the data you request. Democrats oppose any attempt to gather such data for obvoious self-serving reasons.
 

It says 'persons' and illegal aliens are certainly 'persons.'
 

So are "indians not taxed", diplomats, tourists, and invading armies. And none of them count for purposes of apportionment.

Since, of all these categories, only the last are present contrary to our law, you can guess which category I think illegal aliens fall into.
 

It's always worth pointing out that the 'invading army' analogy is postmodern redefinition of words at its silliest. An army is 'an organized military force equipped for fighting on land' and whatever else they are the millions of unorganized illegal immigrants are not that.

The Constitution is careful to use the word citizen where it means it and persons when they don't. Just as the 14th Amendment due process clause applies to illegal immigrants because they are 'persons' the apportionment part of the *same amendment* most naturally does as well.
 

Invasions do not require armies. Ask the Indians what they considered European and then American settlers.
 

If you look up the definition of invasion you find that the first listed definition involves a military incursion. Later listed definitions do reference more general incursions, but what that tells you is that the original and main meaning is the first, the second is more of a metaphor.

Now, I'm not one to argue that when a word is used in a legal document it's always used in the sense of the first listed, oldest, main and most widely used definition of the word, but one way to figure out which sense it's being used in within a document is to look at other uses of the word in the document. And when you do that in the Constitution, the word invasion is invariably used in reference to martial matters.

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

But of course, I was talking about the analogy of an 'invading army.' Whatever else illegal immigrants, people that are not militarily equipped or possessing military goals, people from many different countries often speaking different languages that are not in contact much less organized with each other, they are not an army. That's hyperbolic postmodern nonsense.
 

In what way are foreign citizens who have no legal right to reside in the US, who can be removed and are tegularly denied government services in any way part of the People of the United States?

If illegals voted Republican, you would not be offering these excuses.
 

In my 3:44 PM comment, I raised questions of evidence SPAM had to support a claim of voter fraud in CA made by SPAM in his 2:49 PM comment.

Here's SPAM's response:

"Shag:

Can I assume we now agree Congress should enact a law requiring proof of citizenship to vote in federal elections? This is the only way to gather the data you request. Democrats oppose any attempt to gather such data for obvoious self-serving reasons.

4:58 PM"

So SPAM has no evidence to support his claim of fraud. Keep in mind that SPAM, a lawyer, made that claim of fraud. Note SPAM's weasel: "This is the only way to gather the data you request." I asked about evidence SPAM had to back up his claim of fraud. SPAM, a lawyer, made his claim of fraud without any evidence. Words have meaning, but SPAM isn't very careful about the words he used in making his claim of fraud.
 

"In what way are foreign citizens who have no legal right to reside in the US, who can be removed and are regularly denied government services in any way part of the People of the United States?"

This isn't political theory it's an actual document to be interpreted and applied (whether it makes sense as political theory or not). And the most natural reading is that the word persons doesn't change it's meaning from the first section of the 14th to the second section.

"If illegals voted Republican, you would not be offering these excuses."

You can present no significant evidence of illegals voting much less who they vote for.
 

I think it's also worth noting that armies these days rarely invade with infants, toddlers, and children. They do, however, tend to bring things like tanks, which are noticeably absent from our borders.

Nor do individuals who overstay a visa organize or arm themselves in any way similar to an army.

 

This comment has been removed by the author.
 

So are "Indians not taxed", diplomats, tourists, and invading armies. And none of them count for purposes of apportionment.

Since, of all these categories, only the last are present contrary to our law, you can guess which category I think illegal aliens fall into.


It is a sort of logic fail to say that someone who is here on a tourist or educational visa, let's say, and overextends is part of an "invading army" because they both overlap in some way. They are here "contrary to our law" though. Words have meanings and misusing them is open to confusion especially emotionally laden terms like "invading army." This has been covered well by Mark and Mr. W.

The text is:

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.

Persons. The concept of a person without proper documentation that can be expelled from the state or nation is not new. In antebellum times, e.g., states had broad power to keep out certain persons, including felons, paupers & in some places free blacks. They remain "persons" and are counted. The 14A specifically in another context regarding voting provides a special exception for those who commit a crime. When that matters, it specifically says so.

Unlike diplomats, long practice has accepted that "persons" that do not have the proper documentation who are residents are under the jurisdiction of the state wherein they reside. "Tourists" are counted as residing at their usual residence. But, undocumented residents -- who might have been here for decades -- are at their usual residence. They are counted. They are "persons" for the purpose of the clause.

We don't as regularly -- though they are breaking the law -- call unlicensed plumbers, hairstylists and so forth "illegal" so-and-so or "illegals" but people regularly do here. It is a selective use of emotional-laden language that de-personalizes certain people often with crude racial and ethnic implications. Contrary to the text.
 

This is somewhat besides the point because current law counts undocumented non-citizens even if someone thinks this is a misreading of the constitutional demand. That isn't the claim behind the citizenship question.

Plus, the next post noted:

The administration knows that a lot of mixed-status families (households with some citizens and some non-citizens), for instance, may refuse to answer the Census at all

The question will cause various problems, including for citizens and non-citizens who are here without breaking any law or lacking any proper documentation.
 

Brett thinks it's reasonable to put procedural difficulties in the way of unmotivated people voting, especially if they are poor. Now I am deeply concerned about the risks to the integrity of the voting process created by excitable men taking guns to polling stations. This creates a risk of a confrontation turning to violence, and deters many of the law-abiding from voting. I've heard many convincing accounts of cases on Twitter, though I can't lay my hands on them just now.

Of course, we don't want to stop gun-owners from exercising their rights to carry. But surely we can take procedural precautions to ensure that only law-abiding gun-owners do so. Gun-owners planning to vote should therefore obtain a certificate that they are the lawful owner of the guns in question. These can be issued by a DMV, perhaps fifty miles from the place of work and inaccessible by public transport, in normal office hours. The original receipt for the purchase of the weapon will be adequate proof, along with two forms of photo ID.
 

Mr. W: This isn't political theory it's an actual document to be interpreted and applied (whether it makes sense as political theory or not). And the most natural reading is that the word persons doesn't change it's meaning from the first section of the 14th to the second section. And the most natural reading is that the word persons doesn't change it's meaning from the first section of the 14th to the second section.

You read terms in context.

The Constitution refers to People at minimum as the citizenry, at most as legal residents, who enacted the Constitution and enjoy multiple rights under the charter. Illegal aliens cannot logically belong to this group.

The Constitution refers to persons as singular members of the People, not as any human being who happens to be present in the territorial United States. I understand the Supreme Court has ruled otherwise to provide due process to aliens the government brings into our justice system, and then to provide government benefits in the awfully reasoned Plyler v. Doe decision, which thankfully has not been extended to other contexts. However, this does not change the grammatical reality within the Constitution.
 

All "Citizens" are also "Persons," but not all "Persons" are "Citizens." "People" include "Citizens" and "Persons" whether or not "Citizens." This might be a tongue-twister for textualists.

Perhaps we could put all this in the context of a song to be sung by Barbra Streisand - or Roseanne Barr.
 

"the grammatical reality within the Constitution. "

The grammatical reality of the Constitution is that the 14th Amendment clearly means something other than citizens because it uses 'citizens' in some parts and 'persons' in others.
 

The Supreme Court in United States v. Verdugo-Urquidez, provided a definition of "the People."

The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1, ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble"); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U. S. 279, 194 U. S. 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law").

In District of Columbia v. Heller, the Supremes revisited the issue, reaffirming and perhaps clarifying the Verdugo-Urquidez.

[A]ll six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”...

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.


In short, the People are the community of Americans, which does not include excludable aliens. In effect, Congress has the power to define the People by determining which aliens are excludable.

May Congress define "persons" in the same manner for the purposes of the census or must it count all resident human beings regardless of legal status?

Congress is already doing so by excluding visiting aliens from the census. If the national legislature may exclude aliens who are legally residing in this nation as visitors with visas, on what basis is the body forbidden from exuding aliens who have no legal right to reside in the nation in the first instance?
 

"the People are the community of Americans, which does not include excludable aliens"

Who cares?

1. It says 'persons' not 'the People.' They obviously knew how to write 'People' if they meant that for the 14th, and they didn't.

2. If you're going to turn to SCOTUS opinions they have long said that the 'persons' in the 14th Amendment section one include illegal immigrants. To argue the word changes meanings from section one to two is silly.

3. Even if one to accept that previous nonsense, those "who have otherwise developed sufficient connection with this country to be considered part of that community" can easily apply to people who have lived and worked here for years, sometimes decades.
 

Mr. W: Even if one to accept that previous nonsense, those "who have otherwise developed sufficient connection with this country to be considered part of that community" can easily apply to people who have lived and worked here for years, sometimes decades.

Sorry, the Constitution does not extend rights guaranteed to the People and law does not extend government benefits for the People to excludable aliens, regardless of how long they have illegally resided in the United States. Constitution grants Congress the power to determine which aliens are permitted to become part of the People and, under the same reasoning, persons counted as part of that People.
 

Per Shag's recent comment, yes, the Constitution does use different terms in different contexts. We have persons, citizens, the people; and even these terms might be subdivided -- "other persons" come to mind. Often it is unclear just how much it matters (see, e.g., Justice Kennedy's concurrence in United States v. Verdugo-Urquidez) and all have some basic core of protection (same).

GM references this part of the 14A:

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.

This moves past "persons" to "citizens" (as Mark Field notes, however, many areas did give non-citizens -- at least those on the road to citizenship -- the right to vote & a few places in the U.S. do now; a logical place to me there would be school elections) since citizens have a basic right to vote.

And, it says "other crime," specifically in this one case noting this matters. The dissent in Richardson v. Ramirez particularly shows that the breadth of that provision is questionable, but it is of some note being "illegal" is specifically addressed. Cf. some total rule that someone who was convicted of any crime, even some non-violent regulatory offense, would be denied the right to own a firearm.
 

"Sorry, blah, blah, blah"

Blah, blah, blah, because you're just repeating your a-textual political philosophy view. Since you've not addressed it in any way, I'll simply reply by repeating my textual point: the 14th Amendment carefully distinguishes between 'citizens' and 'persons' and in the part on apportionment it clearly uses the latter instead of the former.


 

It's worth noting that there at least reasonable political philosophic reasons why our representatives should be seen as representing non-citizens living in their district. These people may not vote, but lots of citizens may not vote either (felons, children), and they are represented. They are involved and effected by the laws the representative makes and the representative likely holds out some services to them. The early United States was no stranger to lots of non-citizens living here. They, of course, weren't citizens and weren't therefore entitled to many protections and rights guaranteed explicitly for citizens, but our laws seemed to contemplate groups of people that were not citizens but who would nonetheless get some of our government services, protections, rights, etc. It's not therefore unreasonable on its fact that such people might should count under apportionment.
 

No commenter seems to have noticed that the main purpose of basing apportionment on the whole population rather than the citizenry was to include women and children. These were, and are, on any reading, members of the community that forms the republic. Women now vote, but children do not. Of course, if the framers had wanted to exclude resident aliens, they could easily have done so by enumeration. They did not, so the aliens count.

I am a resident foreigner in Spain. By EU law, I have the right to vote in European and local elections, but not national ones. In some important respects, I am a member of the community: I pay national and local taxes, contribute to the economy from my pension, and am subject to Spanish laws. I have a stake, though not that of a Spanish citizen.
 

I like James' comment.

He has a stake (albeit one lower than a citizens). It also could stand to reason, then, that it makes some sense that the Spanish representative for the area that he lives in be seen as 'representing' him and his interests too and therefore he should count in an apportionment based census.
 

"No commenter seems to have noticed that the main purpose of basing apportionment on the whole population rather than the citizenry was to include women and children."

Women and children are citizens.
 

Women and children are citizens.

Or legal aliens.
 

Let's not forget the big dispute on the census clause: slaves. If "all persons" got counted, slaves would have been included, though nobody thought they were citizens. The 3/5 clause compromised that. Perhaps our modern bigots could offer to compromise and count 3/5 of non-citizens.
 

And, as Lincoln said at Cooper Union:

that wherever in that instrument the slave is alluded to, he is called a "person;"

A slave was a "person," if one counted differently. Minimal as that might have been, that had some effect, a slave not treated akin actual chattel in various contexts, including when tried for a crime. The fact their personhood was ignored so often is not compelled by the text of the Constitution but like here a perversion of it.
 


السلام عليكم ورحمة الله وبركاته اما بعد ، اهالي المنطقبة الشرقيه بالمملكة العربية السعوديه يسر شركة شام للخدمات المنزليه ان تعلن لجميع اهالي المنطقه عن بدأ تقديم خدماتها الخاصه بالمسابح للموسم الصيفي الجديد وذلك من خلال فروعا في مدينة الدمام ومدينة الخبر ومدينة القطيف ومدينة الجبيل ، واما عن فرعنا في مدينة الدمام فسوف تجدونه علي المتصفح تحت اسم
شركة تنظيف مسابح بالدمام
وايضا تحت اسم
شركة صيانة مسابح بالدمام
مقترنا برقم هاتف مندوبنا بالدمام لذل فللفحصول علي اي خدمه تخص المسابح تنظيفها او تشغيلها او صيانتها فليس عليك الا التصال بنا وسوف نصلك فورا ، واما اذل كنت من اهل مدينة الخبر وتحتاج الي ان تستفيد من خدماتنا في مدينة الخبر فسوف تجدنا علي المتصفح تحت اسم
شركة صيانة وتنظيف مسابح بالخبر
وفي هذا الفرع نسعد بتقديم كل الخدمات التي تخص المسابح لاهالي الخبر من خدمات تنظيف او صيانة او تشغيل برك السباحه ،ولاننا قد عملنا في شركة شام علي تغطية المنطقة الشرقيه كافه فقد حرصنا علي ان يكون لنا فرع في مدينة القطيف يختص بتقديم خدمات المسابح لجميع اهالي مدينة القطيف والذي سوف تجدونه علي المتصفح تحت مسمى
شركة تنظيف وصيانة مسابح بالقطيف
وهنا سوف تجدون كل ما يخص المسابح من خدمات تنظيف المسابح بالقطيف وصيانتها وتشغيلها ‘واما عن مدينة الجبيل فلنا ايضا هناك فرع يختص بتقديم خدمات المسابح لجميع اهالي الجبيل من تنظيف وصيانه وتشغيل وهذا الفرع سوف تجدونه علي المتصفح تحت اسم
شركة صيانة وتنظيف مسابح بالجبيل
بهذا اعزائي نكون في شركة شام قد استطعنا ان نغطي كافة انحاء المنطقة الشرقيه وتقديم كافة خدمات المسابح التي يحتاجها اهالي المنطقه باحدث الاساليب والطرق العلميه وباستخدام افضل مواد التنظيف واحسن اجهزة ومعدات الصيانه والتعقيم ، فلا تقلق عزيزي العميل ولا تحتار فشركة شام هي افضل اختيار .


 

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