Defining the Census

[question everything]

A few days ago, an Op-Ed, written by two people from Louisiana was published in the WSJ which, frankly, I did not bother to read:

Our Unconstitutional Census
California could get nine House seats it doesn’t deserve because illegal aliens will be counted in 2010.

http://online.wsj.com/article/SB10001424052970204908604574332950796281832.html

But today there were several interesting letters responding:

The Framers Intended the Census to Count Every Person

How many representatives should each state have? The answer currently turns on total state population. In "Our Unconstitutional Census" (op-ed, Aug. 10), John S. Baker and Elliott Stonecipher say the answer should be determined by counting only citizens plus permanent residents. Yet that would itself likely be unconstitutional. The 14th Amendment says, in part, "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." (The original Constitution had a similar provision.)

Illegal aliens are illegally in a state, but they are certainly "in State." So are legal aliens, such as foreign students or temporary workers, who aren't permanent residents. The Supreme Court did say in Wesberry v. Sanders that the framers agreed on "complete equality for each voter." But this was an imprecise statement, in a case where the basis for the count wasn't at issue. In the framers' time, some states had considerably fewer voters per capita than others, because they had higher property qualifications for voting. "Equality for each voter" would have meant those states would get fewer representatives. Yet the framers expressly rejected that position by calling for representation by total population (with special provision for slaves), not by voting population.

Eugene Volokh
Los Angeles

Messrs. Baker and Stonecipher argue that the census should not count foreign residents for purposes of congressional apportionment. However, the authors' insistence that this established practice violates democratic norms is incorrect. More populous states have greater needs, regardless of the passports their residents hold. These states are likely to need more federal funding for highways, schools, and other infrastructure enjoyed by all. Undercounting Californians or Texans would have grave practical consequences for all residents of those states, citizens or not. Moreover, "noncitizens" are a large and diverse group. They are foreign students, executives, scientists and academics. Most foreign residents pay taxes, serve their communities, and form a vital piece of the American social fabric. Since noncitizens cannot vote, the fact the census counts them ensures we avoid what is truly the most undemocratic and unconstitutional of possibilities: taxation without representation.

Justin Weitz
New York

Leave it to someone from a state that gets $1.78 for every dollar it pays to the federal government (2005 statistics from the Tax Foundation, www.taxfoundation.org/research/show/22685.html) to decry how the upcoming census will include illegal immigrants. Mr. Baker is concerned that California may end up with a few more seats in the House. Never mind that California gets a stingy 78 cents back for each dollar sent to the government, and keeps footing the bill for services to 5,750,000 of these "undocumented" folks with little federal assistance. If the census helps these border states more accurately determine their real populations in order to get more federal dollars, then so be it. Times have changed, Mr. Baker. California has long provided welfare to many states such as yours and now it's time for us to get some back. Get over it.

Bob Rystad
Sacramento, Calif.

http://online.wsj.com/article/SB20001424052970203863204574346651568309212.html