Representation Without Documentation?: Unlawfully Present Aliens, Apportionment, the Doctrine of Allegiance, and the Law

In 1867 Judge Timothy Farrar published the first edition of the treatise entitled Manual of the Constitution of the United States of America. A former law partner of Daniel Webster, judge of the New Hampshire Court of Common Pleas, and president of the New England Historical and Genealogical Society, Farrar was a well respected legal figure in the nineteenth century. Charles Sumner described Farrar’s treatise as correcting “false interpretations” of the Constitution and should be “generally accepted now.” Upon his death, an obituary claimed that Farrar’s treatise was what he was “best known” for as a jurist. Another stated it was “now an accepted text book.” Meanwhile, an obituary published in the Boston Daily Advertiser described it as being “regarded by jurists and lawyers as the most exhaustive work on the principles and intent of the Constitution.” In fact, Farrar’s constitutional treatise was so well read that Ohio Representative William Lawrence even cited it to defend the constitutionality of the 1866 Civil Rights Act. It even received nation wide acclaim in the press. For instance, The Philadelphia Inquirer reported that Farrar’s treatise was “exceedingly useful at the present time; one that no student of the Constitution, no lawyer and, above all no legislator should be without.” The Daily Evening Bulletin described it as “ably written,” “pervaded by a spirit of candor,” and that there “was never a time when there was more need of an intelligent study of the great charter of our Republic.” The Cincinnati Daily Gazette thought it “especially timely,” “a crushing refutation of State right theories,” and a “well nigh exhaustive treatise on Constitutional Law.” The Manual of the Constitution of the United States of America is of particular significance in our constitutional jurisprudence because it was one of the first treatises to analyze the Fourteenth Amendment contemporaneous with its adoption. It was a work made to be “accessible and useful to the multitudes.” As The American Presbyterian Review reported, Farrar was “Widely known as a sound lawyer” and his treatise was intended for “popular use, and not almost addressed exclusively to the members of” the legal profession. While legal scholars and historians have generally focused on Farrar’s interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause, his interpretation of the Amendment’s Apportionment Clause has seemingly gone overlooked. Also known as Section 2, the clause reads, “Representatives shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole numbers of persons in each State, excluding Indians not taxed.” Farrar described Section 2 as follows: “The whole number of persons in each State” cannot mean everybody on the soil at the particular time, nor exclude everybody who may happen not to be on it at the same time, and of course should be authoritatively construed by the law-making power. To paraphrase, Farrar understood that the neither the Constitution nor the Fourteenth Amendment required an apportionment of every individual in the United States. He knew the constitutional text “persons in each State” could be quantified by Congress dependent upon such factors as whether “persons” were “temporary or permanent, strangers, aliens, Indians, & c.” However, legislation concerning which classes of persons were to be excluded from apportionment was never proposed in the late nineteenth century, thus leaving the issue to “the preference of the executive officers.” While historians and legal scholars can only speculate as to why such legislation was never proposed, it does not disparage the fact that Farrar and the drafters of the Fourteenth Amendment thought such legislation was constitutionally permissible. Naturally, this still leaves many constitutional questions unanswered. Who did the drafters intend to qualify as “persons in each State”? What classes, if any, could be excluded from the federal apportionment? What were the constitutional and legal grounds for excluding these classes from the federal apportionment? With the 2010 census nearly complete the answers to these questions are once again important as they were in 1866. This is due to the fact that many Americans see the counting of unlawfully present aliens in the federal apportionment as politically unfair. While many States and municipalities implement legislation as a means to deter unlawful immigration, there are many others that pass legislation to circumvent the federal immigration laws by acting as sanctuaries for unlawful immigrants. In other words, many States and municipalities are benefitting from encouraging unlawful immigration. One of these benefits includes an increase or shift in congressional representation. Just this past year, Louisiana Senator David Vitter offered an amendment to fix this perceived political injustice by excluding unlawfully present aliens from the federal apportionment. In particular, the amendment mandated that the Census Bureau inquire about the status of a person’s citizenship. Vitter’s amendment failed, however, which leaves us to wonder whether such an amendment or similar legislation would have even been upheld as constitutional. Perhaps more importantly, it raises issues of federalism and whether State and municipal governments can take matters into their own hands by excluding non-citizens from their respective apportionment bases. The constitutionality of excluding non-citizens from the federal apportionment base has been the matter of scholarly discourse for some time. Unfortunately, the debate is often based on contemporary politics and the mischaracterization of constitutional history, especially Section 2 of the Fourteenth Amendment. It has been suggested that “whole numbers of persons in each State” is meant to be construed as the term “inhabitants,” thus “persons” was only meant to include individuals “who have their principal residence in the state, and whose residence there has more than some degree of permanence and stability.” While lawful resident aliens certainly qualify under this standard, it is argued that unlawfully present aliens would not. As Charles Wood writes, “there is no indication that for [apportionment the Fourteenth Amendment’s drafters] distinguished between illegal and legal aliens.” Wood comes to this conclusion because he believes that aliens, up to the Reconstruction Era, were never in “an unlawful status that made them subject to deportation from the United States at any time.” Thus, he believes Congress could remove unlawfully present aliens from the apportionment base. It is unfair to claim there were not any legal hurdles placed on aliens that made them “unlawful” or “illegal” and subject to removal or excludable from the apportionment base up to the Reconstruction Congress. Returning to the commentary in Manual of the Constitution of the United States of America, Judge Timothy Farrar qualified that the phrase “other persons” in Article I Section 2 only included aliens that were “legally admitted, or otherwise constituted as such.” It was these “legally admitted” aliens who were “a part of the “people of the State,” to whom the [congressional] representation is assigned, and on whose numbers it is apportioned.” The reasoning for this restriction on apportionment was that the Constitution’s “persons” did not “mean everybody, without regard to any thing but their humanity and personality.” “Persons” meant that the individual “must bear some relation to the State in which they are enumerated.” In other words, Farrar was rightfully claiming that the ancient doctrine of allegiance could control apportionment “exclusions.” Furthermore, Wood’s conclusion on the nineteenth century ignores the rich legal history that aliens could be subjected to different treatment regarding the privileges and rights of the host nation, especially political privileges such as voting and apportionment. Naturally, such privileges and rights were conditioned on their allegiance to just government and submission to laws. This study sets forth to address this history by focusing on the constitutionality of excluding undocumented aliens from the federal apportionment base. What is of particular significance is the intent of the Reconstruction Congress, for it sheds light as to who was to be apportioned and why. More importantly, it gives weight to Charles Wood and Timothy Farrar’s interpretation that Congress could pass a law limiting apportionment to classes of aliens. While history is significant as to determining the constitutionality of excluding unlawfully present aliens from federal apportionment, the federal government cannot be compelled to exclude undocumented aliens from the apportionment base. Legislation concerning the apportionment of unlawfully present aliens has been a non-justiciable political question that the courts cannot remedy.Thus, the following study first addresses this subject, as well as the “political means” by which the people - through their respective State and municipal governments - can lobby Congress to act. This “political means” lies with understanding apportionment at the State and municipal level. Apportionment legislation at this level is significant because it can equally distribute the power to vote among citizens. Furthermore, it seems be the best vehicle by which the people can urge Congress to act on the federal apportionment issue. Second, this study provides a detailed history of the Fourteenth Amendment’s Apportionment Clause, and concludes that Congress has the authority to exclude unlawfully present aliens from the apportionment base absent a constitutional amendment. This authority rests with the ancient and long standing doctrine of allegiance, which the Reconstruction Congress repeatedly discussed as being important to the granting of many of the Constitution’s enumerated rights.