By Viviane Faver
The case of the Supreme Court blockbuster census, Trump v. New York, due to be dealt with on Monday, will be a great test of whether there is a core of principles for conservative originalism. This will help show whether the court’s conservatives are willing to follow the Constitution’s text and history as far as it goes.
Since being elected, President Donald Trump has despised parts of the Constitution he dislikes, such as the federal government’s constitutional obligation to count all people residing in the United States in the distribution of representatives to Congress.
Trump announced on June 21 that the United States would exclude foreigners who are not in legal immigration status from the base of allocation, and disregarded the fact that the Constitution’s role is to ensure equal representation for all people.
Through Article I and the Fourteenth Amendment, the Constitution requires the federal government to make a real enumeration and count the total number of people in each state.
The Constitution’s authors wrote the requirement to conduct a census of people directly in the Constitution – the first nation in history to do so – to avoid manipulation. In trying to treat undocumented immigrants as non-people, the president came into conflict with the basic constitutional rule that the political representation system depends on counting the entire population.
The importance of the text of the Constitution is evident. Immigrants residing in the United States – regardless of their citizenship status – must be counted for distribution purposes. The Constitution does not give the president the power to choose among people living in the United States and decides that some people should be excluded from the census count.
The Constitution’s text and history answer unequivocally whether the president can treat undocumented immigrants as non-persons and exclude them from the distribution base. He can not. The Constitution’s text requires counting all people – regardless of where they are – in the distribution of representatives to Congress. As the story shows, the decision to count all people was a conscious choice, reflecting the basic idea that all people – whether citizens or not – deserve to be represented in Congress’s corridors. The authors of our Constitution created a government system in which immigrants – regardless of their citizenship status – are entitled to equal representation. President Trump cannot accept this fundamental aspect of our constitutional democracy.
A count of the total population, explained Senator Jacob Howard, is “the safest and safest principle on which the government can rely. Numbers, not voters; numbers, not ownership; this is the theory of the Constitution.” The Fourteenth Amendment authors refused to “attack, based on representation, the entire non-naturalized immigrant population,” insisting that the Constitution as it is now and as it has always been, the entire immigrant population of this country is included in the representation base. “This story must be decisive.
Trump v. New York represents a basic test of constitutional fidelity to constitutional principles long-established at the heart of our democracy. If Judge Amy Coney Barrett and the original conservative Supreme Court fail this test, it will be a long way to define Roberts’ court going forward.
