Originalism And The Census And Undocumented Immigrants

Every ten years the United States counts the number of people living in America. The count is used to designate who represents the country in the House of Representatives. The count is also used for distributing federal funds, among other things. This is the Census. It is enshrined in the Constitution.

The Supreme Court will soon be considering whether undocumented immigrants will be excluded from the final count. About 10 million undocumented immigrants live in America today. The undocumented make up about 3% of the U.S. population. If the Supreme Court rules that the Census cannot include the undocumented immigrants, about 3% of the population would be disfranchised. Depending on where they live, the affects will affect some states more than others.

The obvious question becomes, should undocumented immigrants be counted in the census for purposes of distributing representation and federal funding?

The answer may seem simple – the exclusion of undocumented immigrants.

However, right now there is a battle going on in Congress about the appointment of Amy Coney Barrett to the U.S. Supreme Court. At the center of the controversy over her appointment is the interpretation of the meaning of the U.S. Constitution. Barrett’s judicial philosophy is based on originalism. Her mentor is Antonin Scalia, the most notable proponent of originalism.

Originalism is the interpretation of the U.S. Constitution as “fixed,” i.e. it is as it is written. However, how can that be, if for example, the Internet was not known at the time that the Founding Fathers created the Constitution. How would the Constitution apply to the Internet is the counter argument to originalism.

Another Donald Trump appointee, Neil M. Gorsuch, opined in a Time Magazine article on September 6, 2019, that originalism is the fixed meaning of the words but the “new applications of the meaning” allows both to exist today, the original words and the evolving realities of the world.

Gorsuch goes on to explain in his article that “the First Amendment protected speech” are guarantees that do not “just apply to speech on street corners or in newspapers,” but they also apply “equally to speech on the Internet.”

Most important in the Gorsuch’s interpretation is that the Constitution’s words are plain and intended as written. Amy Coney Barrett ascribes to the same thought and by most measures will interpret the Constitution with the majority of the Supreme Court along the lines of originalism.

Article I, Section II of the United States Constitution makes the Census part of the law of the country. When addressing the counting of people, the Constitution is clear; “shall be determined by adding 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.”

As the reader can see, the Constitution went to great lengths to define who was to be counted for the Census. Readers will note that “free Persons,” were included as well “three fifths of all Persons.” It also specifically excluded “Indians not taxed”.

Putting aside the debate over the “three fifths” doctrine, for the moment, we can focus on the fact that the Constitution specifically addressed who is to be counted for the Census. The “Indians not taxed” is specific.

Missing in the Constitution’s language about who is to be counted is whether undocumented immigrants are to be included in the count. It is not just a matter of there being no undocumented immigrants at the time the Constitution was written nor the citizenship of those present in the country at the time of the Census, because who is to be excluded is clear.

The framers of the Constitution chose to allow the counting of undocumented immigrants. This is clear because they did not exclude them from the country, like the “Indians not taxed.” The lack of the exclusion of the undocumented immigrant is amply demonstrated in the section about who can be a representative in the House of Representatives. The Constitution articulates clearly that a candidate must be “seven Years a Citizen of the United States.”

Clearly the question of citizenship was understood.

Thus, for the originalists of the Constitution the question of whether undocumented immigrants should be counted is moot because it is clear that they should be counted.

Note: the quotes from Neil Gorsuch were excerpted in the Time article from Gorsuch’s A Republic, If You Can Keep It.

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