Legal Commentary

?Congress Should Reapportion Representatives Only on the Basis of Citizen Populations?

By Eugene Volokh

So urges an op-ed published today in the L.A. Times. The op-ed mostly criticizes the counting of illegal aliens in the apportionment, but its actual recommendation is to not count any noncitizens, so that ?the votes of citizens in all parts of the country are as nearly equal as possible.? (The op-ed likewise argues that ?The reapportionment of today?s static 435 seats according to census results would be a respectable example of representative democracy if each individual included in the count had a vote? ? further evidence that the argument is in favor of apportionment by number of citizens, rather than apportionment by number of lawful residents.)

As a matter of first principles, this might be a sensible way to set up a constitutional apportionment mandate. But our current constitution provides a different rule. Here?s what the Fourteenth Amendment says, in relevant part:

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.

?The whole number of persons in each State? strikes me as meaning the whole number of persons in each state ? not the number of citizens. Perhaps some creative reinterpretation could lead to reading this as ?lawfully in each State,? though I?m skeptical about this. But certainly lawfully resident noncitizens must count within ?the whole number of persons in each State.? Reapportioning only on the basis of citizen populations strikes me as unconstitutional, absent a constitutional amendment, which the authors aren?t proposing. (They claim that their reform could be accomplished by statute.)

Incidentally, the very next sentence of the Fourteenth Amendment reads, ?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.? This shows that when the drafters of the Amendment wanted to say citizen, they said ?citizen,? and they acknowledged that some ?inhabitants? might not be ?citizens.? ?Persons in each State? thus seems likely to mean what it says, rather than referring only to citizens.

For my response to the similar Baker/Stonecipher proposal, published last year in the Wall Street Journal, see here

Full post as published by The Volokh Conspiracy on May 30, 2010 (boomark / email).