The Citizenship Question

The Supreme Court’s ruling in Department of Commerce v. New York has effectively killed the use of citizenship question in the 2020 census. The entire case and the arguments for and against the citizenship question seem to have missed the essential questions:

Why is there a census?

Who is to be counted for that purpose?

There is a census because — and only because* — Article I, Section 2, of the Constitution says that the

House of Representatives shall be composed of Members chosen every second Year by the People of the several States….

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States….

… The actual Enumeration [i.e., census for the purpose of determining the apportionment of Representatives among the States, and not for the purpose of counting bedrooms, bathrooms, and square footage] shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years…

At this point, we must turn to Sections 1 and 2 of the 14th Amendment:

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 [thus overturning Dred Scott v. Sandford, which declared blacks to be non-citizens].

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.

I don’t know how the idea arose that non-citizens should be counted, but I chalk it up to sloppy usage. The words “person” and “citizen” are used interchangeably throughout the Constitution. But a “person”, for the purpose of the enumeration that determines the apportionment of Representatives, is a citizen:

All persons born or naturalized in the United States … are citizens….

Representatives shall be apportioned among the several States according to their respective numbers [of citizens, a.k.a. persons]….

The challenge to the citizenship question should have been blown out of the water at the outset. Instead, States that have disproportionate shares of illegal immigrants will have disproportionate representation in the House of Representatives, and will claim disproportionate shares of “free stuff”. California, I’m looking at you.
* it says in the Constitution that “the actual Enumeration . . . shall be made . . . in such Manner as they shall by Law direct.” But the operative word is “enumeration”. It follows that Congress’s power to direct the “manner” of the enumeration is restricted to such matters as when and at what cost the enumeration shall be made. The census has become an intrusive inquiry into the private affairs of citizens because Congress has stretched its constitutional mandate to “enumerate” because it has enacted unconstitutional laws (e.g., aid to States, public schools, housing subsidies) that require the asking of unconstitutional questions.