Here, the People Govern, But Who Are They?

January 23, 2019 Updated: January 31, 2019

Commentary

Last week, another federal judge decided against a perfectly constitutional and common sense act by the Trump administration to protect the interests of U.S. citizens. Though seemingly a disagreement about the best way to collect demographic information in the upcoming 2020 census, this particular dispute involves the most fundamental political question: Who rules?

“We the People of the United States …” begins the Constitution, seeming to answer that question for the American government. But who is “the people”? In our federal republic, composed of 50 states, the answer is complex. A crucial variable is population, for that determines a state’s number of federal representatives as well as the number of their Electoral College votes. (Recall that George W. Bush won the 2000 election by only five Electoral College votes.) A state’s total population, then, translates in a significant way to the real share that the people of that state have in the sovereignty of our country.

Who Is Included in ‘The People’?

Many citizens will be surprised to learn that, according to the 2010 census “residence rule,” illegal aliens are counted as part of a state’s total population. This means states that flout federal immigration laws and attract illegal aliens with “sanctuary cities” are rewarded for their lawlessness with a greater number of representatives and electoral college votes as well as a greater share of federal funding.

The state of Alabama has brought a lawsuit against the Department of Commerce, claiming that enforcing the same residence rule in the 2020 census “will rob the State of Alabama and its legal residents of their rightful share of representation.” Of course, liberal activists claim the lawsuit is somehow inspired by “the Trump Administration’s hostility towards immigrants.” Never mind the constitutional obligation of the president to serve the interests of American citizens and the government of Alabama to serve the interests of Alabamians.

Furthermore, liberals argue that “undocumented individuals” have some sort of constitutional right to be counted as part of the population. For support, they quote the 14th Amendment’s directive that representatives shall be apportioned among the several states, “counting the whole number of persons in each state.” It is always wonderful to hear that the left cares about the Constitution. Nevertheless, they provide only part of the pertinent quotation, and so they misinterpret its meaning.

The 14th Amendment continues with an exception that is important for understanding its authors’ intention: “excluding Indians not taxed.” Like Indians at the time the 14th Amendment was written, illegal aliens owe political allegiance to another country and are not taxed. Thus, they should not be included in the census to determine the count of the sovereign American people. Such an interpretation seems wholly in accord with the spirit of the 14th Amendment—an amendment that bolsters the “privileges or immunities” of citizenship and clarifies who should be included as a citizen.

Hillsdale College professor Michael Anton recently started a national conversation by questioning the legitimacy of the presumption to birthright citizenship. The claim to birthright citizenship, as well as the claim that illegal aliens should be included in the census, are two long-standing conventions that deserve rethinking, especially in light of the fact that some 12 million foreign citizens are living in the United States illegally.

Citizenship Question on the Census

Enter the latest media sensation of Trump Derangement Syndrome. For 130 years, the decennial American census included a question about citizenship status. The Trump administration’s commerce secretary, Wilbur Ross, decided to reinstate that question for the upcoming 2020 census, and liberals had a meltdown. Last week, New York federal Judge Jesse Furman decided against the inclusion of the citizenship question. He claimed that “even if it did not violate the Constitution itself,” it “was unlawful for a multitude of independent reasons and must be set aside.”

Commerce Secretary Wilbur Ross with American flag in the background
Commerce Secretary Wilbur Ross in the East Room of the White House on June 18, 2018. (Samira Bouaou/The Epoch Times)

What “multitude of independent reasons,” you ask? Administrative procedure. Even though the judge admitted that including the citizenship question is in accord with the Constitution, he asserted that it offended the infamously vague standards of the Administrative Procedure Act (APA). In the judge’s estimation, the commerce secretary’s mode of adding the question did not clear the notorious “arbitrary and capricious” standard in the APA. This case is a perfect example of what it means to live under the rule of the caprice of an “administrative state.”

Righteous Indignation and Common Sense

During the ratification debates for the Constitution, northerners were indignant that the Constitution allowed southern states to inflate their reported population sizes by including three-fifths of their slave population. Doubtless, this population advantage in the Electoral College contributed to the fact that four of the first five presidents were southerners. Though the three-fifths clause was patently unfair, it was, in fact, a compromise that was constitutional. Including illegal aliens in the reckoning of a state’s population in the census is likewise patently unfair, but it is arguably unconstitutional.

Moreover, conflating illegal aliens and citizens in the enumeration of the sovereign “people” is just contrary to common sense. Complying with the census is a concrete example of the duties that are expected of citizens. Illegal immigrants—by definition—flout recognition of the rights and duties of American citizens by failing to respect the laws protecting those rights.

I have written about the importance of recognizing the duties that citizens owe one another as essential for understanding the moral argument for enforcing border security. Without borders, there is no distinction between citizens and noncitizens. Without this distinction, there are no American people to consent to the Constitution.

Abraham Lincoln noted: “A constitutional majority is the only true sovereign of a free people.” Those words make no sense if there is no real distinction between citizen and noncitizen. Lincoln went on to warn: “Whoever rejects it, does, of necessity, fly to anarchy or to despotism.”

How can federal judges claim to speak authoritatively for the American people when they deny the constitutionally elected Trump administration the right to put a citizenship question on the census that determines who the sovereign American people actually are?

Clifford Humphrey is originally from Warm Springs, Georgia. Currently, he is a doctoral candidate in politics at Hillsdale College in Michigan. Follow him on Twitter at @cphumphrey

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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