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Sunday, April 28, 2019

A Note About the Census Case

Josh Blackman had an interesting post over on Volokh that asks the following question: Does the original public meaning of the Fourteenth Amendment require the census to ask about citizenship? 

My answer to his question, based on my article on Our Unconstitutional Reapportionment System, is yes. There is considerable evidence from the debate on the Fourteenth Amendment and from the 1870 census (the first conducted after ratification) that the census was supposed to ask all about all of the suffrage criteria specified in Section Two of the Fourteenth Amendment. In the article, I pointed out that given the subsequent practice that did not ask about these things, I could not say that the census must ask these questions. Water under the bridge, yada yada.

I doubt, though, that even Justice Thomas will say that the addition of the citizenship question to the 2020 census is mandated by the Fourteenth Amendment. To say that, you would also have to say that the other information called for by Section Two (such as the denial or abridgment of the vote by those same citizens) is constitutionally required for the census. Thus, the 2020 proposal would be invalid. The liberal Justices, who do not seem to think that a citizenship question should be asked, are equally unlikely to embrace the original public meaning. 

Posted by Gerard Magliocca on April 28, 2019 at 09:14 PM | Permalink



The Fifteenth Amendment did not repeal by implication Section Two of the Fourteenth Amendment. My article explains that point at some length. I do not think that a court can order a state's representation reduced. But Congress can. Indeed, this was one of the demands of the March on Washington in 1963.

Posted by: Gerard | Apr 29, 2019 9:03:07 PM

But section 2 is a dead letter (repealed by implication) after ratification of the 15th Amendment. Now if a state denies the right to vote of any male inhabitant who is over 21 and a citizen (and not a felon), the state is violating the Constitution and can therefore be subject to a court order directing it to act constitutionally. Are you suggesting that Congress or a court could -- instead or in addition -- still reduce the state's representation in Congress?

Posted by: Suzanna Sherry | Apr 29, 2019 2:37:59 PM

If a state decides to disenfranchise some voters in a way that's covered by Sec. 2 of the 14th Amendment, the feds can conduct an emergency census of that state to count the citizens. Nothing in the 14th says that the decennial census must be the only census, or that every decennial census must count citizens.

On the other hand, nothing in the 14th forbids the counting of citizens during the decennial census, and that sort of count may be useful for carrying out other constitutional provisions besides Section 2 of the 14th Amendment. For example, federal spending in each state state could be partly based on how many U.S. citizens live in that state.

Posted by: Andrew Hyman | Apr 28, 2019 11:27:12 PM

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