Skip to comments.Do aliens count as "persons" under the 14th amendment's apportionment of representatives?
Posted on 03/24/2006 7:22:29 PM PST by AZRepublican
Q: Do aliens count as "persons" under the 14th amendment's apportionment of representatives?
This is an interesting recurring question I get every once in a while and, unfortunately, been too occupied to answer. There has been talk to change "persons" under section 2 of the 14th amendment to read "citizens." Michigan Republican Rep. Candice Miller introduced a constitutional amendment last year that would change the 14th amendment to allow only "citizens" to be counted instead of "persons." The section in question reads as follows:
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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Strictly speaking, there is nothing terribly wrong with this section of the fourteenth amendment as it stands because the States lost nothing outright due to its adoption. Also, a State cannot be held liable for disenfranchising anyone who is not a citizen of the United States under this section. The insertion of the word "persons" obviously confuses the entire section; even more confusing is the fact "persons" replaced the word "citizens" because that word was found even more confusing in the year 1866.
Here is a little history of this section that hopefully will make it less confusing.
In January of 1866, the Committee on Reconstruction put foreword a special order (H. Res. 51) to amend the US Constitution with the following instructions by William Lawrence: "Apportion representation among the States on the basis of adult male voters who may be citizens of the United States." When the proposed Amendment reached the US Senate on March 9, its had had been drafted to read in part: "Representatives shall be apportioned among the several States within the Union according to the number of male citizens in each of twenty-one years of age and upward..."
In 1866 confusion existed over the word "citizen," in part because of the US Supreme Court ruling in Dred Scott declared that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. Because the entire purpose of the Section 2 was to prevent the southern States from abridging blacks newly acquired right to vote, Sen. Cresswell feared that by using the word "citizens" might lead to a loophole for States to openly deny suffrage without consequence. Whether blacks where legally considered citizens or not, there was no denying that they were in fact "persons," and to make a long story short, that is why we find the word today under Section 2.
Now, it was indeed foreseen by the Senate that by changing "citizens" to "persons" could lead to non-citizen aliens to be enumerated for purpose of representation. Sen. Johnson (Congressional Globe, 39th Cong. at 1295) resolved the conflict by pointing out that the alien population will simply be deducted:
Sen. Trumbull (Chairman of the Judiciary) was pretty much in agreement with Sen. Johnson's argument put forward above, so the rest of the Senate fell in line. So to sum this up, "persons" was used in the same context as "citizen" and although a alien is a person, they would be deducted from the whole population so to arrive at the proper "representative population" of US Citizens for purposes of apportionment of representatives. This history of intent aids in properly interpreting the text and explains why it speaks of persons but only operates punitively in regards to US citizens.[There] is a large number of them [aliens], and they will be deducted from the enumeration which is to ascertain the proportion of representation; unless it be in the power of the State to make them citizens.
And I know no mode by which an alien can become a citizen of the United States except under the naturalization laws of the United States. If he cannot be made a citizen in any other way than under those laws, the operation of the amendment would be to exclude from the enumeration all who may not be citizens.
There is no denying the practice of enumerating aliens for purposes apportionment runs counter against the entire principle of a nation founded strictly for "ourselves," and our descendents, which of course was exactly the objective of this section of the amendment: To count the whole number of "ourselves."
Not all of our Michigan representatives are worthless pieces of crap.
It says it was introduced last year. Any info on what happened?
Alito was asked about that during his hearings. He responded that there was no case history, and no legislative history at the present time.
How about if each alien is worth three-fifth's of a citizen?
I would like to know why corporations don't get to vote.
Or does an alien count as a citizen in terms of the Consitution....or the FISA court. :)
specifically citizens of the south west are not being represented fairly, districts that have high concentration of illegal temporary foreign visitors are getting more representing that districts that are populated by permanent legal citizens.
To top it off these diacritics also get to participate in Mexican elections abroad, which in turn the Mexican government is making policies effecting the legal citizens in the border states, so the legal citizens voices are further diluted.
yet when it comes tax time we are the first they go after for the money that people whom dont even represent us have appropriated.
Wars have been started for no taxation without representation in the past, people should have known this by now.
Yes. They get to pay taxes, they can own property, they are subject to all kinds of campaign contribution regulation, should they also be allowed corporate suffrage?
Corporations can buy all the politicians they need.
Do you mean this guy??? You tell him he's not a citizen!
I am not a lawwwwwyer.... but:
I was not born here, I lived in a few countries, I am a US citizen now; I looked up residence and voting requirements for a few lands over the years.
It is absurd and unusual for a country to allow non-citizens to be counted as much else than just 'legal' residents, that is all IF one is a LEGAL resident.
As far as I know countries don't allow non-citizens to vote, and proof of citizenship is required to do so. Very few countries allow non-citizens to even own land (check "Mejico" out... US citizens can only lease propety).
Basically a LEGAL resident has all the rights of a citizen, except to vote, some public offices, etc., and therefore is NOT counted as far as any political partitioning of the land.... the US conveys way too many rights to not only non-citizens, but ILLEGAL residents!!!
I think this is one of those cases where all of us would personally believe that there is no way that an illegal alien should count.
However, believing that one should intrepret the Constitution according to what the words are and nothing more, I would be inclined to believe that they should count.
All "persons" count. End of story, and I hate illegal immigration as much as anyone.
I guess we could ask the same question about escaped felons.
> All "persons" count. End of story...
Not so fast! The constitution uses the word elsewhere as well and there is no denying the word referes only to US Citizens. The preamble establishes for whom persons the instrument speaks as being "ourselves."
Not exactly. See the following from this link:
"The first sentence of the 14th Amendment says:
"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. [emphasis added]
"To hold that the Citizenship Clause confers birthright citizenship on anyone born in the United States is to ignore the phrase and subject to the jurisdiction thereof: a selective misreading of plain English."
The underlined phrase is always conveniently forgotten.
If we're into technicalities ... Most pf the illegal aliens are actually, by race, indians ... and I don't think payroll deductions count as paying taxes until a return is filed ... and thence explicitly excluded from the count by the fourteenth amendment ... or at least so it would seem ...
This is not, however, widely accepted Constitutional doctrine. Illegal immigrants are still subject to the jurisdiction. They may be undocumented and here illegally, but if they break the law further and get caught, they will soon know that they are indeed under the jurisdiction of government.
This is not, however, widely accepted Constitutional doctrine. Illegal immigrants are still subject to the jurisdiction. They may be undocumented and here illegally, but if they break the law further and get caught, they will soon know that they are indeed under the jurisdiction of government.What jurisdiction are you speaking of there, state jurisdiction? The 14th speaks of jurisdiction of the U.S, invading or visiting a state does not put you under U.S. jurisdiction. For a excellent explanation of this subject Click Here
Why not? Souter is an alien and he's on the Supreme Court.
We are told that the matter of apportioning representation in a state legislature is a complex and many-faceted one. We are advised that States can rationally consider factors other than populations. We are admonished not to restrict the power of the States to impose differing views as to political philosophy on their citizens. We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us. To the extent that a citizen's right to vote is debased, he is that much less a citizen. The weight of a citizen's vote cannot be made to depend on where he lives. Population is, of necessity, the starting point for consideration and the controlling criterion for judgement in legislative apportionment controversies. A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. This is at the heart of Lincoln's vision of "government of the people, by the people,...for the people." We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an in-dividual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the state.
-- Earl Warren, Reynolds v. Sims.
So you would think that for the purposes of apportioning state legislatures, that the Census Bureau at least ought to ask whether the respondents are citizens or not.
I knew of it and yes, it should be changed to "Citizens" (capitalization intended and neccesary to thwart challenges).
Hey, Scrab! It was a joke. Lighten up. It's rather an insult for you to think that I actually believed that crap. (I meant Souter was an alien in the extraterrestrial sense, which, the more I read his opinions, seems quite reasonable.)