Originalists and Textualists arise and be counted for census case…or not.

We will find out how serious these new Supremes really are about following the law as written in the 18th century. Perhaps 2/3 of a person would be a nice compromise based on precedence. After all we get cheap chicken and tomatoes from the undocumented workers, we could at least give them 66 and 2/3% residency.

27 thoughts on “Originalists and Textualists arise and be counted for census case…or not.

      1. I think when Branch 1 disputes with Branch 2, they are obliged. Given Doc’s comment, it should be 9-0, but it will be interesting if they give him the courtesy of a dissenting opinion with an 8-1 or even a 7-2.

        Liked by 1 person

        1. …”when Branch 1 disputes with Branch 2, they are obliged.”

          Agreed. However, Branch 2 had no standing to make the changes. As Don pointed out, Constitutionally, it is up to Congress.


      2. SCOTUS should assure that the executive branch follows the literal law as passed by Congress.

        The point is that whatever the law is(and I don’t know what that is) the courts should see to it the letter of the law is followed. No more, no less.

        If Congress has failed to define who counts as an “inhabitant,” which is an ambiguous term, then the Executive Branch may interpret it as they think the Constitution intends until such time as Congress provides clarification.


        1. “…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.”

          There is nothing about immigration status, legal or not.

          Liked by 1 person

    1. Huh?

      The subject is whether the census is a count of citizens or persons. It is a count of persons. The “originalists” have no wiggle room.

      Section 2 of the 14th Amendment amended Article I, Section 2 . . .

      “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.”

      Liked by 2 people

      1. Illegal is illegal. What are lefties missing? According to Paul’s argument, people on vacation count as “persons” at the time of census. Illegals, temporaries and vacationers are not subject to apportionment. Trumps argument is solid.


        1. Large farm operation hire, pay, withhold taxes for millions of illegal workers. Those workers boost our GDP, use the roads, schools, etc.

          Not including them in a census is kind of gilding the lily with respect to a sizable economic impact. A state that is dependent upon such labor, like Alabama, Arizona, California would not receive apportionment with respect to actual cost and economic impacts, plus and minus.

          Simply put, the census is about counting all people, period. If we need to sort them out afterwards for a variety of reasons, fine.

          Liked by 2 people

          1. So what. Actually you can get a SS number for withholding purposes, but cannot collect benefits. It is a tax thing.

            The taxes still go into the Treasury.

            Liked by 3 people

        2. According to Paul’s argument . . .

          I am not making an argument. I am telling you what the Constitution says. There is nothing to “argue” and that is especially true if you are an “originalist.”

          You have expressed very clearly what you think ought to be the case, but, what you think ought to be the case is irrelevant.

          Liked by 2 people

        3. “Illegals, temporaries and vacationers are not subject to apportionment.”

          Did you know that prisoners in federal custody are counted as part of the area they are serving their sentences, regardless of their actual homes of record?

          People on vacation aren’t going to be sent forms or visited by census takers verifying or following up. That comment is idiotic and based on nothing but complete ignorance.

          The Constitution calls for all individuals residing. It mentions nothing about immigration status and it had to be amended to count former slaves as a whole persons and not 3/5ths as originally written.

          Liked by 1 person

      2. Again, quotes out of context.

        Section 2 in full “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. 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, 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.”

        Note that representation can be reduced for participation in rebellion OR OTHER CRIME.

        For example, veterans of the Confederacy could not vote nor were they counted toward representation during reconstruction.

        It can also be argued that people who enter the country illegally have committed a crime, they are, effectively, invaders. Congress could exempt those, but as yet it has not. I don’t disagree that perhaps they should, but it has not as yet.


        1. Was there such a thing as illegal immigration at the founding?

          “….rebellion, or other crime…”

          Rebellion is a very serious crime against any nation. “Other crime” must have meant more than just a paperwork issue.

          If it referred to any breach of the law, no matter how minor, it might sound like this in modern terms: “Rebellion, or littering”.

          Also, illegal immigrants, unless adjudicated and awaiting deportation, have not been charged or convicted of any crime officially. Interestingly, they are mostly employed and paying taxes which affects the GDP and funds our nation. Housing, roads, schools, public safety are affected by their presence as humans in a community. So not counting them would be a throwback to slavery for enumeration purposes. The compromise then was 3/5ths of a person, I believe.

          Bottom line: much better to address the issue of millions of workers we absolutely need but refuse to recognize. And have been doing so for decades to keep prices low.

          Liked by 2 people

          1. I have a great deal of sympathy for immigrants coming here to work, not so much for those coming to live on the dole.

            But the question here is not how we feel about it but what the law is. I don’t know if Congress has established what crimes are disqualifying.


          2. To add some flavor and confusion to the census issue, here is an article about counting prisoners. Home town v. Prison town?


            Keeping in mind that incarcerated felons can’t vote. Yet they live in the prison district and benefit, sort of, from public safety institution, hospitals, and other “perks” of government.

            Liked by 2 people

        2. My quote is NOT out of context. I do not do that. This is about the census. Do the math. You cannot determine those ratios without having the full count of persons.

          “It can also be argued . . . ” Uh, no, it cannot. The law is the law. Being in the United States without proper visa is NOT a crime. Look it up. Undocumented human beings are “persons” and the Constitution says they should be counted and used as the basis for apportioning districts. The “original” language is crystal clear. Trump, again, is trying to violate the Constitution. He should be removed from office!

          Liked by 2 people

          1. “Again, the Constitution empowers Congress with establishing uniform laws on immigration and naturalization.”

            Who is saying otherwise? Double duh. Are you thick or just dishonestly stubborn? This is about the census. Not immigration law. The Constitution requires the counting of ALL persons. Period.

            Liked by 1 person

  1. If the question is over person or citizen, the SCOTUS has been very clear about this in the past from Amendments 1 to 13, or 14, the word citizen is not mentioned. Freedom of religion is a right given all persons, even those here illegally, or in the case of even POWS. SCOTUS has held these rights to be universal for persons. This is one of the reasons Bush43 didn’t want the captives brought into the US.

    So, I’m pretty sure SCOTUS knows the difference.

    Liked by 4 people

  2. “What is the problem with post-apportionment litigation?” Roberts said. “We don’t know what the secretary is going to do. We don’t know what the president is going to do. We don’t know how many aliens will be excluded. We don’t know what the effect of that will be on apportionment. All these questions would be resolved if we wait until the apportionment takes place.”

    Wait. SCOTUS wants to wait to see what WIIL happen now when just a week ago they flung themselves full on into a moot case?

    Liked by 1 person

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