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Counting Foreigners in the U.S. Census

By Jon N. Hall - June 29, 2010 12:10 PM

NEW YORK - JANUARY 04:  Census employess hold ...

Image by Getty Images via @daylife

The federal government is currently conducting its decennial exercise: the census. Some may think the Constitution requires the feds to conduct the census in a certain manner. But there are only two iterations of the word "census" in the entire Constitution.

One is in the 16th Amendment, which makes the census irrelevant to the income tax. And the other is in Article I, Section 9. 4: "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken." The enumeration (or "Census") referred to is found in Article I, Section 2. 3: "The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." [Emphasis added.]

As far as the original Constitution treats the census, that's it. Notice there's no mention of a specific method. Indeed, that's left up to Congress. It would seem there's nothing to prevent the Census Bureau from doing its business differently.

But, Article I, Section 2. 3 was modified by the 14th Amendment, 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." The operative word here is "persons," and it is interpreted to mean that illegal aliens and other foreigners (e.g. students) must be included in the census.

The number of seats in the U.S. House is set at 435. In Wesberry v. Sanders (1964), the Court required that those 435 seats represent congressional districts approximately equal in population. So the inclusion of foreigners in the U.S. census distorts representation in Congress: After the 1990 census Montana lost a congressional seat, and after the 2000 census California gained six congressional seats. This intolerable state of affairs exists because illegal aliens are counted in the census. But there are movements afoot to change the way the census is done. (Read the section on apportionment here.)

According to John S. Baker, a constitutional law professor writing in The Wall Street Journal, the way we're doing the census is unconstitutional:

Of course, other states lose out when noncitizens are counted for reapportionment. According to projections of the 2010 Census by Election Data Services, states certain to lose one seat in the 2010 reapportionment are Iowa, Louisiana, Massachusetts, Michigan, New Jersey, New York, Ohio and Pennsylvania; states likely (though not certain) to lose a seat are Illinois, Minnesota, Missouri, and Ohio could lose a second seat. But under a proper census enumeration that excluded illegal residents, some of the states projected to lose a representative ... would not do so.

The census has drifted far from its constitutional roots, and the 2010 enumeration will result in a malapportionment of Congress.

In the 1964 case of Wesberry v. Sanders, the Supreme Court said, "The House of Representatives ... was to represent the people as individuals and on a basis of complete equality for each voter." It ruled that Georgia had violated the equal-vote principle because House districts within the state did not contain roughly the same number of voting citizens. [Emphasis added.] ... The same principle is being violated now on a national basis because of our faulty census.

Since citizens (and legal aliens) are all on file with the feds and their numbers are already know, it would seem that the $14 billion we're spending on the 2010 census is entirely to enumerate illegal aliens. The feds are spending money they don't have to ascertain information they already do have -- except for illegal aliens. So the feds dispatch armies of unarmed census takers into the slums, barrios and seamy underworld of America to gather data from folks loath to divulge it, having a reasonable fear of deportation.

The 2010 census aggravates because it asks a bunch of new questions the feds shouldn't ask. The reason the central government still does the census the "old fashioned" way is because it serves the ends of career politicians:

The census is a jobs program; it tamps down the unemployment rate, albeit temporarily, making career politicians look less bad.

The census is used in handing out hundreds of billions in federal aid. This is paid for with money the feds must either borrow or print.

The census, when done the old fashioned way, can be easily corrupted. So allowing organizations like ACORN to conduct the census can be tempting. The Community Organizer in Chief even directed the Director of the Census Bureau to report directly to the White House rather than the Commerce Secretary.

The census is used to gerrymander. George Will writes:

After the 1990 Census determined that North Carolina was 22 percent black, the state's redistricting created a black-majority congressional district. ... Hence the creation of North Carolina's 12th District, which slithers 160 miles down Interstate 85. This was racial gerrymandering applauded by liberals. [See map.]

It used to be that voters chose candidates, but now candidates choose voters. To create congressional districts likely to vote their way (such as North Carolina's 12th), career politicians need to know the voter's race, etc. Hence: those objectionable questions on the census. Question 8 even asks if one is Hispanic.

Like so much else in the federal government nowadays, the census is an exercise in abuse. For a solution to end this abuse, read this.


This article first appeared on GOPUSA.

Jon N. Hall is a programmer/analyst from Kansas City.

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