The Supreme Court’s Read of the Constitution

Raoul Lowery Contreras - Special to El Observador
Photo Credit :Pixabay

“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.”

-14th Amendment Section 2 to the U.S. Constitution

The Constitution of the United States is quite clear, all “persons” in the United States shall be counted every ten years. From that count, congressional districts are allocated and drawn; billions of dollars are budgeted and spent on everything from post offices to roads to food stamps to aid to education. Every single person in the United States is affected by the census count; thus, it is incumbent on the Census to count every possible “person.”

As the Constitution clearly states “person,” the question of citizenship is unimportant. Even the original Constitution stated in Article I, Section 2 that “Representatives…shall be apportioned among the several states…according to their respective numbers, which shall be determined by adding the whole number of free persons, including those bound to service for a term of years, and excluding Indians, not taxed, three fifth of all other persons.”

Free persons, indentured servants and Negro slaves, were all to be counted, albeit the Negro slave was only 3/5ths of a person. That was the Constitution until the 14th Amendment was inserted into the Constitution in 1868. That is the Constitution today.

Thus, anything that disrupts a complete as possible Census is counter to the Constitution and specifically unconstitutional unless the disruption is concocted by the U.S. Congress.

Secretary of Commerce Wilbur Ross is in charge of the Census. His desire to follow the anti-immigrant philosophy of the Trump administration impedes the goal of an accurate 2020 required count of the American population.

If Secretary Ross was a brilliant cabinet secretary with a long list, or any list, of public service and/or accomplishment one might pay attention to his defense of interfering with normal Census procedures.  But he has no such list.

His defense: The Department of Justice asked him to include the citizenship query into the Census so that it could better administer the Voting Rights Act.

In fact, his interference with a legal Census count is, according to testimony and evidence in three separate court cases, the result of direction from the White House, not his own department. Three separate federal district judges have ruled that Ross included the “are you a citizen” question into the Census at the insistence of former White House official Steve Bannon, failed Kansas state politician Kris Kobach and, undoubtedly, President Trump’s immigration Svengali, Steven Miller. No support comes from the Census professional staff, any former Census directors or from more than a handful of states.

In Ross’ defense at the Supreme Court this week, Solicitor General Noel J. Francisco, admitted that some undercount might occur but that it was worth it; he also emphasized that the citizenship question was asked in the first census and asked through 1950. Since then, however, it has not been asked of everyone every ten years. It has been included in annual surveys by the Census. Most professionals agree that that method is more accurate than if asked every ten years.

The last five Census Directors serving both Republican and Democrat Presidents predict, in their court papers, that inserting the citizenship question into the 2020 Census will result in as many as “6.5 million” people not being counted because they will ignore Census forms fearing that information about citizenship status will endanger them legally despite it being illegal for the Census to share information with other agencies.

The Constitution is clear, the Census should be as accurate as possible by counting every “person.” Or, as put by Justice Sonia Sotomayor in arguments before the Court: “Enumeration is how many people reside here…Not how many are citizens.”

Severe impacts can result in an inaccurate Census count, among which are: states may lose congressional seats in California, Texas, Illinois, Florida and New York.  Fewer roads will be built in several states, school lunches will be cut back where there are many foreign born. Millions of people in these and other states will suffer.

The United States Supreme Court must decide the issue by June as 2020 Census forms need start being printed by July 1.  Observers of the Supreme Court guess the odds of the Trump Administration winning the case are five to four.

On the other hand, it might be five to four against the Trump Administration.

The only concrete observation that can be made of this case is that if the Court cannot read and understand the 14th Amendment’s mandate for an all “person” Census count, it cannot read any part of the Constitution in an acceptable manner.

Contreras is the author of THE MEXICAN BORDER: IMMIGRATION, WAR AND A TRILLION DOLLARS IN TRADE (Floricanto Press) and WHITE ANGLO-SAXON PROTESTANTS (WASPS) & MEXICANS (Floricanto Press); he formerly wrote for the New American News Service of the New York Times Syndicate