Citizenship Must Be Ascertained by Census to Comply with the Fourteenth Amendment


By Paul Dowling

“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.”  —Section 2 of the Fourteenth Amendment of the US Constitution which, to be enforced, requires knowledge of the number of US citizens residing in each state of the Union

Trump Is Right Again

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President Trump is absolutely correct, in yet another presidential policy decision.  The president has decided to pursue the issue of including a citizenship question on the 2020 census, claiming, rightly, that it is necessary. The Constitution requires that the number of voting citizens in each state be known, per the language of the Fourteenth Amendment.

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Section 1 of the Fourteenth Amendment: Text & Discussion

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens . . .” means that black slaves born in the US or naturalized as citizens of the US possess the rights of citizenship, the same as all other people who are born or naturalized as citizens.  The text goes on to stipulate that those born in the US must be born “subject to the jurisdiction” of the US, which means that ambassadors from other countries, or aliens subject to the laws of other jurisdictions, are not entitled to call their babies US citizens, per the language of this amendment.  The intention was to make former slaves and naturalized freemen who were born in the USA undisputed citizens of the United States.  However, it is the tradition of Americans to use generalized language in the Constitution to state principles and concepts in positive terms, which is why the text explains who is a citizen, rather than stating who is not or who was not a citizen, thus the definition of “all persons born or naturalized . . . and subject to the jurisdiction thereof.”

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” is a clause that is meant to make sure that former slave states do not make state laws that protect some classes of citizens but do not protect others against having their property rights abridged, thus “equal protection” is emphasized.  All human rights—or Natural Rights, as the Founders called them—are based upon property rights, so this prohibition against being able to confiscate the property of ex-slaves to benefit those who were never slaves is prohibited.  For example, enactment of a tax that black people must pay at a higher rate than everyone else or passage of a law prohibiting blacks from owning land.  The right to vote is along the same lines, since the right to vote is important in the protection of one’s property rights.  (It is interesting to note that this amendment could concomitantly be viewed as a prohibition of any state’s ability to make socialism an official policy, since socialism is, by definition, the dissolution of the Natural Rights to own and protect private property and to enjoy equal protection under the laws.)

Section 2 of the Fourteenth Amendment: Text & Discussion

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. 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.

“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” holds the meaning that the House of Representatives will be based upon proportional representation, unlike the Senate in which each state has two senators without respect to population as a proportion of the entire country; “Indians not taxed” is a reference to the fact that only persons who are taxpayers, thus stakeholders of the citizenry, are permitted to be counted.  This means that all citizens qualify as taxpayers.  “But when the right to vote at any election . . . 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” is a clause that does a couple of things.  First it defines protections to the voting rights of citizens as belonging only to males (even though male gender was never a requirement for voting in the federal Constitution written by the Founding Fathers, the voting rights of each state having been left up to the sovereign states to decide*).   The second thing this clause requires is the punishment to be meted out to any state that does not protect the voting rights of all male citizens; in other words, the offending state’s representation in the House will be reduced by a percentage equivalent to the percentage of voters disenfranchised by not enforcing the Fourteenth Amendment.  So, if a state disenfranchises 20% of its citizenry, by not allowing the 20% of its citizenry that is black to vote, for example, then that state will lose 20% of its House of Representatives delegation.  It is also worth mentioning that this amendment makes it clear that the word “persons” in the Constitution means “citizens,” since the clause “the whole number of persons” is used synonymously with “the whole number of . . . citizens.”

To Enforce Voting Rights, the Number of US Citizens in Each State Must Be Known

Because of the specific language stating that the “whole number of male citizens” (since the Nineteenth Amendment, this would rightly stipulate the idea of “the whole number all of citizens”) must be known for enforcement purposes, the US census—America’s only means of counting the “whole number” of its citizens—must include a citizenship question, to discover the citizenship status of every individual.  Every head of household must answer any and all questions of citizenship on the census accurately, under penalty of perjury.

An Executive Order Is Being Contemplated

President Trump is contemplating an Executive Order to direct the asking of a citizenship question on the 2020 census.  Executive Orders are not mentioned anywhere in the Constitution, so the use of an Executive Order is properly reserved only for clarification of how a law or policy is to be executed.  Trump would be within his right as chief executive to issue such an order to indicate the reasoning behind his policy of reinstituting the printing of a citizenship question to be included on the 2020 census.  The president would be stating his rationale for requiring such a question.  There would be no need to alter the Constitution or any existing law.

_____

*Article I, Section 4, of the US Constitution says this: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.”  The Fourteenth Amendment added a federal requirement stipulating that all male voters not be discriminated against by the states, which was intended to mean that black voters would be protected by federal law.  However, the awkward wording of this rule, since it did not offer equal protection to female voters, meant that federal protections of voting rights would not apply to women in any state of the Union—white women, black women, or any women at all.  On December 10th, 1869, Wyoming recognized women’s right to vote, but, under federal law, no women would be protected in these rights by the federal government, as they would have been prior to passage of the Fourteenth Amendment.  The wording of the Fourteenth Amendment does not prohibit to women the right to vote, but it does deny them the right to Constitutionally-granted protection of those rights.  Arguably, the Congress could have legislated such protection, according to the text of this amendment, since provision for this possibility does exist at the conclusion of the amendment: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”  The whole issue was rendered moot, however, once the Nineteenth Amendment was passed: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.”  This amendment effectively changed the stipulation requiring that voting rights not be denied to male citizens to say that all citizens must be protected in their rights to vote, returning the textual style of the Constitution to the Founding Fathers’ original concept of using universalist, gender-neutral wording.

Who Is Paul Dowling?

Paul Dowling is an American patriot who believes that individual freedom and minority rights—that only a free republic can protect—are the linchpin of Western Civilization.  Paul has written a book on the Constitution, explaining the republican values on which it is based and how they protect against the dangers of a strictly majoritarian system of governance.  The book is called Keeping a Free Republic: Learning the Blueprint for Liberty in the Constitution & the Bill of Rights.  (It is on sale at Amazon, for $6.49 in paperback and $0.99 as a Kindle download.)

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