Counting All Inhabitants or Just Counting Citizens?

Trump Census

The question as to what the census is supposed to be counting is explicitly answered in the Constitution. The Constitution says that the Census is to count “free” people—not people who are citizens but people who are “free.” . Article I, Section 2, Clause 3, reads, in its entirety,

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration 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, in such Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse [sic] three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

(“Other” persons—those who were not “free”—were slaves, and counted as three fifths of a person. When the Thirteenth Amendment abolished slavery, everyone became “free,” and there was no more population to which the three fifths rule would apply.)

From the constitutional obligation to count people, not just citizens, it follows ineluctably that anything about the census that interferes with the objective of counting all the inhabitants is in tension with the constitutional requirement.

Trump’s lawyers are thus tasked with producing a square circle. His objective is patently to thwart the constitutional mandate by undercounting the undocumented.

So he cannot give his real objective as a purported legal basis for the citizenship question. But if he comes up with another pretend rationale, he risks being called out for serving up yet another “contrived” explanation.

Now, Chief Justice Roberts will be the deciding voice. And, Chief Justice Roberts, having apparently switched gears on this question at some point after the oral argument, could always reverse course yet again and rule for Trump. That is surely a metaphysical possibility. But why does anyone think that is likely to happen?

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