Illegal or Mandatory?

At the incarnation of The Volokh Conspiracy now hosted at, Eugene Volokh articulates the seemingly contrarian argument that not only does the Census Bureau have the authority to ask a citizenship question in the context of the decennial census, it is obligated to do so:
The Fifteenth Amendment, ratified in 1870, provided that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” The Fourteenth Amendment, ratified two years earlier in 1868, provided another mechanism to prevent states from disenfranchising the freedmen: states that abridged the right to vote would lose representation in Congress.

Section 2 has three relevant clauses (emphasis added):

  1. “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.
  2. “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,
  3. “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.”

Basically, there is no way to make that determination other than by asking the question. Since it’s an affirmative obligation (“shall be reduced”) and consequently so is a citizenship question.

12 comments… add one
  • steve Link

    “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 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.”

    Nothing here suggesting this. Also, the issue he seems to be emphasizing is a citizen not being counted. “where a State excludes any part of its male citizens from the elective franchise, it shall lose Representatives in proportion to the number so excluded.”

    Not sure how having or not having a citizenship question would exclude a citizen. If they fill out the census they get counted. Seems like the lawyer equivalent of counting angels on pins.


  • walt moffett Link

    how do you know the person filling out the form is a citizen, resident alien, diplomat or illegal unless you ask?

  • CuriousOnlooker Link

    You are quoting the original Article 1, which was superseded by the 14th Amendment that Dave excerpted.

    Since it originated from a respected law professor; it is a credible interpretation.

    We will know how serious the Supreme Court takes if this is footnoted – or if the Court asks for an additional hearing.

  • PD Shaw Link

    It’s a simpler argument to say that a citizenship question is permissible because the Constitution makes citizenship a relevant determination. More generally, the Consitution guarantees that the privileges and immunities of citizenship will be protected by the federal government (of which voting is not one).

    The historical context is that the 14th Amendment would soften the impact of eliminating slavery on legislative apportionment. Ending slavery (13th Amendment), and thus the applicability of the 3/5ths clause, meant that all of the former slave states were counted 5/3rds as much as before, greatly increasing the number of representatives (and thus Presidential electors) in places like South Carolina and Mississippi.

    Many (most?) Northern States restricted voting on the basis of race, so it wasn’t perceived as doable for the federal government to require voting rights for our males, so the Amendment was pushed by radical Republicans to provide an incentive to extend the franchise as a carrot, but act as a stick by preventing states with large freedmen from benefiting from removal of the 3/5ths clause. A Northerner could vote for this idealistically or self-interestedly.

    Best to ignore the 15th Amendment because it wasn’t initially seen as doable. The 1870 Census first specifically asked for everybody’s citizenship status, probably developing the question after the 14th Amendment was ratified (1868) and before the 15th was ratified (March 30, 1870).

  • The 1820 and 1830 censuses had citizenship questions as well. The 1840, 1850, and 1860 censuses did not.

  • PD Shaw Link

    The 1820 and 1830 censuses asked for a count of all foreign-born residents that were not naturalized.

    The 1870 census asked “Is the person a male citizen of the United States of 21 years or upwards?” The language change appears to be in order to reflect the language of the recent 14th Amendment.

  • PD Shaw Link

    Actually, the 1870 census had two pertinent questions:

    19. Is the person a male citizen of the United States of 21 years or upwards?

    20. Is the person a male citizen of the United States of 21 years or upwards whose right to vote is denied or abridged on grounds other than “rebellion or other crime?”

    Those closely track the 14th Amendment language.

  • The question in the 1820 census was a specific response of the Census Bureau to a request from the Congress.

  • You know, I understand or at least think I understand the motivations behind the kvetching about the citizenship census question (money first and electoral votes second). I can’t help but wonder if part of it is not trying to close the barn door after the horses have already fled. We need to get used to there being no generalized right to privacy. That ship has sailed.

    But as I type that it occurs to me that it cannot possibly have been the intent of the framers for the number of electoral votes a state receives to have been determined by the number of non-citizens within the states. Things tend to go cockeyed at the extremes and right now we have a very large number of resident aliens. We shouldn’t be surprised if that’s causing some chafing.

  • TastyBits Link

    @Dave Schuler

    … determined by the number of non-citizens …

    That was the reason for the Three-Fifths (3/5) Clause. The slave states wanted slaves counted as a whole person (5/5), and the non-slaves wanted them counted as a nothing person (0/5).

    Today, the debate is over illegal aliens, and Progressives are the modern day slave-masters.

    (I realize that you know about the 3/5 Clause, but some may not.)

  • PD Shaw Link

    One thing to keep in mind is that originally the population count used to apportion representation between the states was also the count used to apportion direct taxes to the states. That serves as somewhat of a check-and-balance to extreme outcomes.

    There was also not any significant immigration to the U.S. for almost a generation due to the conflict with Great Britain. To the extent the founders seemed concerned about immigration, it tended to be more towards the threat offered by a foreign power, in league with a domestic faction, getting themselves elected to positions of power that would end the republic. Thus more discussion about who can serve in Congress, and the inclusion of the natural born citizen requirement for POTUS.

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