The Originalism Trap by Madiba K. Dennie

Author:Madiba K. Dennie [Dennie, Madiba K.]
Language: eng
Format: epub
Publisher: Random House Publishing Group
Published: 2024-06-04T00:00:00+00:00

If At First You Don’t Succeed

The Trump Administration’s loss in the citizenship-question case did not deter it from its mission of transforming the census, and the Constitution, into tools to reward friends (conservative white people) and punish enemies (everyone else). In July 2019, just a couple of weeks after the Court’s decision in Department of Commerce v. New York, Trump published an executive order directing executive agencies and departments to share as much information as legally possible with the Commerce Department to help the Census Bureau “establish citizenship status for 100 percent of the population.” No longer hiding the Administration’s motives, the order said outright that “a more accurate and complete count of the citizen population” would enable states to more effectively “design State and local legislative districts based on the population of voter-eligible citizens.”[57] A year later, in July 2020, the Administration issued a memorandum announcing that—for the first time ever—it was the policy of the United States to categorically exclude undocumented residents from the count used to apportion seats in the U.S. House of Representatives.[58] Trump claimed an unheard-of authority to cast aside the work of the Census Bureau and essentially craft his own DIY census, taking out a marker and unilaterally scratching out swaths of the population as if they weren’t really people who lived here, or as if they weren’t really people, period: an impractical means to illegal ends.

Inexplicably, some originalists argued that this unprecedented far-right policy was actually what the Framers wanted all along. The Trump Administration itself knew that such an argument was dubious. Back in 2017, at the direction of Commerce Secretary Wilbur Ross, senior political appointee and lawyer James Uthmeier drafted a legal memorandum analyzing how the Commerce Department might add a citizenship question to the census and use the data for apportionment. At first, Uthmeier warned that citizens-only apportionment likely violated federal statutes and the Constitution. The Fourteenth Amendment, as we’ve discussed, says apportionment must be based on the “whole number of persons.” Noncitizen residents are obviously persons. And on top of that, apportionment has literally never been conditioned on citizenship, a fact that undercuts the idea that the original understanding was to do otherwise. “Over two hundred years of precedent, along with substantially convincing historical and textual arguments, suggest that citizenship data likely cannot be used for purposes of apportioning representatives,” Uthmeier determined in his draft.[59] He then seemingly got with the program and dramatically revised his draft to reach the opposite conclusion: the final memo stated that “there is nothing illegal or unconstitutional about adding a citizenship question” for apportionment purposes and “there are bases for legal arguments that the Founding Fathers intended for the apportionment count to be based on legal inhabitants.” He provided no examples or citations to support this claim, probably because the claim is insupportable.[60] Apparently, the Trump Administration reasoned that an appeal to the Founding Fathers’ purported intent was a Get Out of Constitution Free Card. Uthmeier seemed aware that his memo was an

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.