The following report comes from The Rose Institute for State and Local Government at Claremont McKenna College in California:
By Douglas M. Johnson, Consulting Fellow
On August 10th, the Wall Street Journal unfortunately ran a factually inaccurate op-ed piece written by John Baker and Elliott Stonecipher entitled “Our Unconstitutional Census.”
The authors wanted to discuss whether illegal immigrants should be counted in the Census and for Congressional reapportionment. As an academic with a keen (some say obsessive) interest in the Census, I was interested to read their views. I was, however, deeply disappointed when I read their piece. The op-ed lacked any basis in reality and instead was based on a dual problems of bad mathematics and ignorance of the Constitution. I am mystified by how the inaccuracies of this article escaped the Journal’s fact-checking, as even a Google search would reveal the problematic foundation of the piece.
The authors claim that “the first Census Act” defined who would count for the apportionment of Congressional seats among the states and “Because the census (since at least 1980) has not distinguished citizens and permanent, legal residents from individuals here illegally, the basis for apportionment of House seats has been skewed.” This assertion is the basis of their headline “Unconstitutional Census.” Unfortunately for the authors, they are wrong on this point that lies at the very heart of their argument is wrong.
It is not “the first Census Act” nor Census Bureau decisions that result in what they call an “unconstitutional” count. In fact, the definition of who counts for apportionment comes directly from Section 2 of the 14th Amendment: “”Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.”
Apportionment is done based on “persons” because that is the direct wording of the Constitution. The direct wording of the Constitution, unfortunately for the authors, clearly cannot be “Unconstitutional.”
Sadly, the authors’ craving for a headline and the Journal’s fact-checking failures did not end with just that fundamental flaw. They continue: “Based on our round-number projection of a decade-end population in that state of 37,000,000 (including 5,750,000 noncitizens), California would have 57 members in the newly reapportioned U.S. House of Representatives. However, with noncitizens not included for purposes of reapportionment, California would have 48 House seats.” This is absurd. As every study by both EDS and Polidata have shown, California will be lucky to hold on to its current 53 Congressional districts after the 2010 Census, and may drop to 52. My guess is that either the authors calculated population growth in California since 2000 and ignored growth in the rest of the country over that time period, or they lack knowledge about how the apportionment of districts is calculated (for example, they may not know that each state is guaranteed one Congressional district, and those districts must be assigned before calculations of districts per state and remainder populations are made).
There is a serious policy question to debate: should illegal immigrants be counted for the purpose of Congressional district apportionment? But the debate must acknowledge that any change to that policy requires a constitutional amendment, not a statue or Census Bureau administrative decision.
The authors of this piece argue a constitutional question without reading the Constitution, and double their error through the use of bad math. This article achieved their goal — a headline in the Journal — but it does not improve the public debate or move us any closer to agreement on the answer.