After Barbara: Illegal Aliens and the Census, Part II

In Trump v. Barbara, the Supreme Court deemed birthright citizenship a constitutional right for the children of illegal aliens and birth tourists. It did so based on a dubious reading of the law, a blindness to its spirit, and a stubborn dismissal of relevant history, policy, and practices. That jurisprudence, I argued in part I, could spell coming doom for the Trump Administration in parallel cases likely to arise in response to its effort to exclude illegal aliens from the census apportionment base. This is a critical initiative given that those figures are used to allocate congressional seats and Electoral College votes across the states, redistrict, and dole out trillions of dollars in federal funds.

However, there is one powerful argument the Court did not countenance in Barbara or elsewhere that could lead it to render a more favorable judgment if and when the census-citizenship issue comes before it.

The Constitution is a compact of, by, and for “We the People of the United States,” who choose their representatives, per Article I. The American people determined that, via the Enumeration Clause, modified by Section 2 of the 14th Amendment, political power would be distributed by apportioning representatives and presidential electors based on “the whole number of persons in each State, excluding Indians not taxed”—language making clear that political representation was intended only for Americans. This follows the Census Act of 1790, in which Congress set forth an enumeration schedule comprising “inhabitants” limited to free peoples and slaves.

The founders never conceived of millions of foreigners being permitted to breach our borders with impunity and then considered part of the “people” for purposes of enumeration and apportionment. Illegal aliens, as well as those passing through for business or tourism, lack allegiance to our country, neither enjoy the full rights of citizenship nor bear its full responsibilities, and cannot vote in elections—all proof that they are not part of the American political community.