Critics of conservative originalism have charged that it is just a fancy word used to reach conservative results and sanction discrimination. The Supreme Court’s blockbuster census case, Trump v. New York, which will be argued on Monday, will be a major test of whether there is a principled core to conservative originalism. It will help show whether the court’s conservatives are willing to follow the Constitution’s text and history where it leads.
Throughout his presidency, President Donald Trump has flouted the parts of the Constitution he does not like. Trump v. New York involves President Trump’s decision to disregard the federal government’s constitutional obligation to count all persons residing in the United States in apportioning representatives for Congress. On July 21, President Trump announced it would be the “policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status,” disregarding the fact that the Constitution explicitly requires counting all persons in the apportionment base in order to ensure equal representation for all persons.
The constitutional question in Trump v. New York is open and shut. The Constitution, through Article I and the Fourteenth Amendment, explicitly requires the federal government to conduct an “actual Enumeration” of the people and to count the “whole number of persons in each State” to apportion representatives to Congress. The Constitution’s Framers wrote the requirement to conduct a census count of the people directly into the Constitution—the first nation in history to do so—in order to prevent manipulation of our democracy. It is fundamental to our democracy that the government cannot rig the census by excluding persons living in the United States from the count used to apportion representatives to Congress.
The import of the Constitution’s text is clear. Immigrants residing in the United States—regardless of their citizenship status—are persons who must be counted for apportionment purposes. The Constitution does not give the president the power to pick and choose among the people who live in the United States and decide that some people should be excluded from the constitutionally mandated census count used to apportion representatives to Congress simply because they are undocumented immigrants. By seeking to treat undocumented immigrants as non-persons, the president has run afoul of the basic constitutional rule that our system of political representation depends on a count of the entire populace.
In some parts of the Constitution, our charter explicitly uses the term “citizens,” but the Framers chose to utilize the broader term “persons” in mandating a count of the nation’s populace in apportioning representatives to Congress. The Census Clause and the Fourteenth Amendment draw no distinction between citizens and non-citizens. The sweeping language chosen by the Framers requires that the “whole immigrant population should be numbered with the people and counted as part of them,” as John Bingham argued during the debates over the Fourteenth Amendment.
In fact, the question whether noncitizens should be excluded from the apportionment base was discussed at length during the debates over the Fourteenth Amendment. During those debates, many members of Congress urged that only citizens or voters should be counted in determining congressional representation, insisting that foreigners who had arrived in America should not count for purposes of apportioning representatives to Congress. Following more than seven months of heated debate in Congress, the Fourteenth Amendment reaffirmed the federal government’s duty to count the nation’s whole population, including the entire immigration population, in apportioning representatives to Congress.
A count of the total population, Sen. Jacob Howard explained, is “the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.” The authors of the Fourteenth Amendment refused to “strike from the basis of representation the entire immigrant population not naturalized,” insisting that “[u]nder the Constitution as it now is and as it always has been, the entire immigrant population of this country is included in the basis of representation.” This history should be decisive.
To get around the Constitution’s plain command to count all persons, the Trump administration makes the specious claim that “the Constitution does not specifically define which persons must be included in the apportionment base” and that the president has discretion to exclude all undocumented immigrants from the apportionment base on the theory that they are not truly inhabitants of the United States, even if they have lived here for many years. This argument deserves to be laughed out of court.
In some cases, conservative and progressive originalists may reasonably disagree about what the Constitution means. Not here.
The Constitution’s text and history unambiguously answer whether the president can treat undocumented immigrants as non-persons and exclude them from the apportionment base. He cannot. The Constitution’s text requires counting all persons—regardless of where they are from—in apportioning representatives to Congress. As history shows, the decision to count all persons was a conscious choice, reflecting the basic idea that all persons—whether they are citizens or not—deserve to be represented in the halls of Congress. Our Constitution’s Framers designed a system of government in which immigrants—regardless of their citizenship status—are entitled to equal representation. President Trump simply cannot abide this fundamental aspect of our constitutional democracy.
Trump v. New York poses a basic test of constitutional fidelity to long settled constitutional principles at the core of our democracy. If Justice Amy Coney Barrett and the Supreme Court’s conservative originalists fail this test, it will go a long way to defining the Roberts court going forward.