Enumeration Clause

Describing the Framers’ experience with the British Parliament’s failure to reapportion representation and the rejection of wealth-based representation.

Noting the Court’s conclusion in Utah v. Evans that “the language initially approved by the Convention did not use the words ‘actual Enumeration.’ These words were added by the Committee of Style, a committee that was directed not to change any meanings. The inference therefore is that even though the clause uses the words ‘actual Enumeration,’ the Framers intended the clause to mean the same thing that it would have meant if it did not contain these specific words.”

Criticizing the Utah v. Evans dissent’s use of the first Congress’ silence on the permissibility of census estimation to buttress its argument that “actual enumeration” forecloses estimation.

Arguing that “actual enumeration” contemplates counting, not estimating, and explaining that “evidence suggests the Framers intended for the Actual Enumeration Clause to implicate some formal requirements and not simply to be a broad grant of power to Congress to manipulate methodology without limit.”

Contrasting original understanding of statistical population estimates and “actual enumeration” and concluding that the Framers consciously chose to proscribe estimation to “minimize the risk of political manipulation in what they knew would always be a politically charged decision — the apportionment of seats in the U.S. House of Representatives.”

Arguing that the text of the enumeration clause, the intent of the Framers in propounding it, and the structure of the Constitution forbid estimating the population.

Arguing that undocumented immigrants should not, under the Framers’ intended meaning of “inhabitants” (among other reasons), be counted in the Census.