The generally leftist magazine Politico occasionally publishes something with forethought and of interest to an independent reader, so it is less surprise that there was a piece last week meeting that criterion. The article, linked here, points out that the apportionment of members of the House of Representatives -- and, by law, the Electoral College -- is actually affected by illegal immigration.
How, you ask? Well, let's us take a look at the 14th Amendment to the U.S. Constitution, which has the following text:
Section 2. Representatives shall be apportioned among the several States according
to their respective numbers, counting the whole number of persons [underline mine] in
each State, excluding Indians not taxed ...
The key part of the text, of course, is where the apportionment reflects the "whole number of persons in each State." The Amendment couldn't be clearer; it specifically intended for population to be the proportional driver for populating the House and, by extension, the Electoral College.
It couldn't be clearer about "how" to count; what was clear then but has lapsed into the vagueness of evolving perception is what is actually meant by "persons." It isn't that vague; we know that the clause was put in there to rectify the counting of slaves as representing three-fifths value of their population for apportionment, as was in the original Constitution.
At the time, the text may be presumed to have referred to citizens only, but whatever the intent, the actual text is what is handed down to us. And that text states "persons", with no qualification in there as to being citizens, legal residents or illegal immigrants.
Why does it matter? Simple -- if you load up a state with illegal immigrants, who by rights should not count for anything except deportation figures, that state will gain disproportionate representation in both the House and the Electoral College. It's bad enough in the House; it is considerably more wretched in the presidential election, since electoral votes are vital, each and every one. All the electoral votes of a state go to the candidate carrying the most votes in that state, so if illegals, let alone legal non-citizens, get counted enough to add a vote or three to a routinely-Democrat state, it could readily change the outcome of an election they're not even allowed to vote in, in a State some are in illegally!
Most of us, I assume, are at least a little uncomfortable with that. I know I am. But what is the process? We are not going to see an attempt to amend the Constitution; that won't work and will take forever to decide that it won't work.
No; we will have to accept the fact that the law is in place, right there in the old Constitution we love so well. Of course, the words are stable, but that doesn't mean the interpretation can't be clarified by our friends on the Supreme Court. We need, folks, to figure out how to get a case in front of the Court that forces it to decide whether "persons" means "citizens", or "those legally here", or "everyone."
That means that there has to be an actual suit -- you can't just phone up the Court and ask them to render an opinion on the 14th Amendment. Someone has to be an aggrieved party, and the aggrievedness (?) has to come from the current apportionment of the House.
So here's my thought -- there are a few states (e.g., Louisiana) which would have higher representation in the House if only citizens were counted for apportionment. Suppose the State of Louisiana were to file a suit in Federal court against the United States, claiming that it is entitled to an additional representative and additional electoral vote because of what it believes to be the appropriate reading of the 14th Amendment.
I think there is enough of a case there, between their actual "damage" (losing representation) and the logical interpretation of the Amendment itself (extrapolating the phrase about "untaxed Indians", and claiming that the authors of the Amendment excluded them because they were not citizens -- because they were citizens of their tribal nations). Fold in the writings of the time about the Amendment, and voila, you have a case that deserves to be heard.
It is possible that the ruling this Supreme Court term on Evenwel v. Abbott may give the precedent needed, but I wouldn't be completely sure; we need the specific aggrievement by a State.
Let's do it. Let's get Bobby Jindal off the debate podium and back to Baton Rouge where he can do something really productive by leading this suit. I would love to see the Supreme Court forced to do some real work, some real thinking, and some thoughtful, quiet, calm deliberation. What did the authors of the Amendment mean, and how would they have applied that had they known that 150 years hence the USA would be crawling with illegal aliens?
I think that would be just a splendid use of their time.
Copyright 2015 by Robert Sutton
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