Census, Citizenship, and Constitution
March 28, 2018
by William P. Meyers

Site Search

Popular pages:

Enumeration Should Include Citizenship Data

The announcement by the Trump administration that the 2020 national census would include a question about citizenship has unleashed a storm of protest from organizations, including state and local governments.

Before discussing whether asking the citizenship question is a good or bad (or complex mixture of the two) idea, I will go over the U.S. Constitution. Unlike some other national constitutions, ours is quite short, which leaves much room for interpretation.

First, the word "census" is not used, at first:

"The actual Enumeration shall be made within three Years of the first meeting of the Congress of the United States, and within every subsequent Term of ten of Ten years, in such Manner as they shall by Law direct." [Article. I., Section. 2.]

"Census or Enumeration" is used in a clause about taxes in Article. I., Section. 9.

It is clear that the ultimate power over the census lies with Congress. But Congress might give the executive branch leeway in designing census forms or choosing what data to select.

"The Congress shall have the power . . . to establish a uniform rule of Naturalization." [Article. I., Section. 8.]

Again, notice the word "immigration" is not used. It is implied. There is a section generally interpreted as preventing Congress from preventing the importation of slaves: "The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by Congress prior to the year one thousand eight hundred and eight." [Article. I., Section. 8.] This implies that starting in 1808 Congress could prohibit slaves or any other immigrants from entering the U.S.

The words "citizen" and "person" are used frequently in the Constitution without being defined. It is not clear if a slave is a citizen, for instance. But with Congress having the power to determine the rules for naturalization, the implication is that merely arriving in the territory of the United States does not make one a citizen.

This is an important point, because citizen tends to be used loosely in modern discussions. The phrase "law abiding citizen" implies that if a person is law-abiding, they are a citizen. Pro-undocumented immigration activists are now calling persons who entered the country without proper visas citizens. Countering that, a citizen of one state is not a citizen of a different state just because they are traveling through it.

However, in Amendment XIV (Fourteenth Amendment), we see some definitions made which were needed to recognize former slaves as citizens. "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Which clearly indicates that immigrants, including those who entered the nation legally, are not citizens of the United States until they have been naturalized.

So what about asking about citizenship on the 2020 census? Clearly it is within the powers of Congress to do so. Clearly if Congress thinks it has made a mistake, the law can be changed.

As to lawsuits by states and localities, they are frivolous. It is not a matter for the courts. Local officials may be able to find a judge that says otherwise, but that is because some judges are driven by passions, or local pressure, not a reasoned approach to constitutional law.

The main reason for the uproar is political: the struggle to influence voters. This is particularly true in districts with a large portion of voters who sympathize with immigrants who arrived without obtaining visas, or who stayed even though their visas expired.

As to the effect of the count on which states get how many U.S. representatives, or funding, consider the extreme case:

Should tourists be counted as part of the population?

If a foreign national is in New York City two weeks for a business meeting, and the census falls during those weeks, should they be counted as part of the population of New York City?

Common sense says no. What about someone on a six month visa? Probably no, but not so clear. At the other end of the spectrum you have people who have been in the United States a decade or more without a visa. They are clearly part of the population, but the Constitution is not clear about whether they should be counted towards a state getting seats in Congress.

Congress has to decide these questions, or leave them to an executive department.

I am a Democrat, but I would point out that elected Democrats, when they held both houses of Congress and the Presidency, could have dealt with this issue then. They might also have set the immigration laws to their liking.

I think it is a perfectly valid census question to ask if someone is a citizen. Then again, people may lie, or refuse to answer.

Mostly, I have more important issues to worry about. Getting those issues addressed certainly requires a Democratic congress and President. I suspect that the knee-jerk opposition of some Democrats to the citizenship question will alienate more voters than it attracts, but I could be wrong.

"The Department of Homeland Security Office of Immigration Statistics publishes statistics and reports based on administrative data, such as the number of persons obtaining legal permanent resident status, refugees and asylees, naturalizations, nonimmigrant admissions, and enforcement actions.

The Census Bureau collects and publishes survey data on the characteristics of the foreign born resident in the United States, such as country of birth, year of entry, citizenship status, and the size of the population."

About Foreign-Born Population, U.S. Census Bureau