Trego's Mountain Ear

Article 1, Section 2, Clause 3 covers two things – the Census and apportionment of representatives in Congress. Here it is:

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.

The last sentence doesn’t count anymore. The critical terms are that the “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,” “and within ten years.” It doesn’t say citizens. On the other hand, we quit excluding “Indians not taxed” back in 1924. We quit counting slaves as 6/10ths back in the 1870 Census. https://www.kff.org/other/state-indicator/distribution-by-citizenship-status/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D will take you to the individual states populations listed by citizenship.

Six or seven percent of US residents are not US citizens – but the number varies by state. Over 99 % of Montana residents are citizens. Almost 95% of Californians are citizens. The average congressional district has about 761,000 people (2020 Census) – Montana’s population in 2020 was 1,137,233 and we have 2 congress critters. Basically, we don’t have any complaints about being underrepresented this time around. Before the 2020 Census, we only had one congresscritter – and were extremely underrepresented.

So there are a couple questions about Trump ordering another census. The Enumeration clause says “within 10 years.” I suspect that five out of nine Supreme Court Justices will agree that 6 years is within 10 years. (I won’t guarantee that they will agree with me, but they should) Then there’s the question of whether illegal aliens should be counted. That’s going to be one for the courts – but if a guy can’t be there legally, I can’t see why he should be counted as a resident.

By choice, I’d see congressional seats apportioned by number of citizens – but that isn’t how our founding fathers wrote the Constitution.