Last Friday the Supreme Court indicated that on November 30 it will hear arguments in the Trump administration’s appeal regarding its efforts to exclude undocumented immigrants from being counted in the census numbers used to calculate the apportionment of congressional districts.
Last September a federal appeals court in Manhattan rejected the Trump administration’s bid to exclude undocumented residents from this count.
As with many of Trump’s mean-spirited power-play shenanigans, this exclusion effort is “unprecedented,” an adjective we have heard far too often modifying Trump’s behaviors. Indeed, the court duly noted that throughout the entirety of U.S. history the tally of persons used to determine how many seats are allotted to each state in the House of Representatives has “included every person residing in the United States at the time of the census, whether citizen or non-citizen and whether living here with legal status or without.”
The court observed in quite matter-of-fact terms that Trump’s gambit has no basis in the language of the Constitution, in black letter law, emphasizing that “the Presidential Memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as ‘persons in’ a ‘State’ as Congress used those words.”
But black letter law is not that meaningful to some of the current justices.
So, we’ll see what Supreme Court Justices such as Clarence Thomas and Samuel Alito say. Alito, joined by Thomas, went to town last summer in a hysterical dissent to the landmark ruling granting LGBTQ people protection from discrimination in the workplace on “the basis of sex.” Alito’s rant droned for dozens of pages, citing myriad dictionaries, arguing that the word “sex” designated only the biologically based male-female binary and did not include sexual orientation or gender identity.
In this case, we will see how the gang of justices, perhaps including Amy Coney Barrett, wrestle with the basic meaning of who counts as a “person.”
This definition of who counts as a “person,” basic as it might seem, has been a crucial point of contention in legal and cultural terms, and in social and political practices, throughout our history and in quite intense ways during Trump’s presidency.
We have to understand Trump’s move to attack the Constitutional grounds on which the census is conducted in this context.
The Black Lives Matter movement, for example, boiled down to its simplest terms, is an assertion that African Americans are persons and thus, in the language of the 14th amendment, deserve equal protection under the law such that they cannot be discounted or devalued, treated as less than full persons.
Let’s recall the language of the 14th amendment, which includes the clause:
“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.”
This amendment provides a humane corrective to other language in the Constitution that denies African Americans full personhood and hence equal protection of the laws—in addition to the right to be counted as human beings possessing full personhood.
Indeed, the original language of Article One of the Constitution, spelling out the process of the census, did not count all residents as full persons, reading:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.
(It should be noted here, too, that “persons” clearly does entail citizenship status, as the paragraph preceding the above reads: “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” Thus, we see the framers clearly and specifically indicated “Citizen” when intended.)
Despite the 14th amendment, though, full personhood is denied to many still.
The Equal Rights Amendment still has never been ratified by Congress. And here’s the statement in the ERA this nation trembles to validate:
“Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.”
It seems to state what the 14th amendment already does—unless women are considered as not falling within the definition of “person.”
In fact, women have not been granted personhood, and anti-abortion groups have opposed the ERA precisely because in granting women full personhood, they fear the rights of women to control their bodies and reproductive processes will be reinforced.
The effort to not count certain human beings as persons has been a hallmark agenda of the Trump administration, of which this attempt to deny the counting of undocumented residents is just one piece.
Many lives do not count, don’t matter, in the eyes, in the policies, of Trump.
Despite the landmark Supreme Court ruling granting LGBTQ people protection from discrimination in employment, Trump has made it possible to discriminate against LGBTQ people when it comes to their access to health care.
In his insistence on opening the economy without adequately addressing the COVID-19 pandemic, he has shown little care for the elderly and for workers he has insisted to return to unsafe workplaces. Trump and many other Republicans have vociferously declared that saving the economy is more important than saving human lives.
He doesn’t see workers as persons of equal value to others, which was clear when he mocked Representative Alexandria Ocasio-Cortez for her having been a waitress, as if serving in this role somehow diminished her, made her matter less.
Throughout the COVID-19 pandemic, Trump’s inaction has shown he puts little value on the majority of American lives.
We don’t count.
His efforts to discount people in data, to make sure they don’t have representation in Congress, is just part and parcel of his governing worldview in which most of us simply don’t count.
Just like the military members he denounces, he views us as “suckers” and “losers.”
And just as he cannot reasonably represent the interests of those of us he can’t respect, he doesn’t want anybody representing us.
Tim Libretti is a professor of U.S. literature and culture at a state university in Chicago. A long-time progressive voice, he has published many academic and journalistic articles on culture, class, race, gender, and politics, for which he has received awards from the Working Class Studies Association, the International Labor Communications Association, the National Federation of Press Women, and the Illinois Woman’s Press Association.