AMEND THE CONSTITUTION TO EXCLUDE ALIENS IN THE COUNT FOR APPORTIONMENT OF REPRESENTATIVES FEBRUARY 19, 1931.-Referred to the House Calendar and ordered to be printed Mr. SPARKS, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. J. Res. 356] The Committee on the Judiciary, to whom was referred House Joint Resolution 356, proposing an amendment to the Constitution of the United States, after hearings (Serial 16) and consideration, report favorably thereon with amendments and recommend that the resolution as amended do pass. The committee amendments are as follows: Page 1, line 5, strike out the word "when" and insert in lieu thererof the word "if". Page 1, line 6, after the word "States" insert the following: "within seven years after its submission,". Page 1, line 6, after the word "shall" insert a comma and the following words, "when so ratified", followed by a comma. The purpose of this proposed amendment to the Constitution is to exclude aliens from the enumeration used as a basis for apportioning representation in the House of Representatives among the several States. The proposed change would of course affect also the distribution of the electoral votes among the several States, in the election of President and Vice President, since the Constitution gives to each State as many electors as it has Senators and Representatives. The word "alien" is used in its legal and technical sense and means those persons neither born nor naturalized in the United States. The operative language of the Constitution which forms the basis of Congressional apportionment is the first sentence of section 2 of the fourteenth amendment. That sentence reads as follows: 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. There has been difference of opinion as to whether the word "persons" in this sentence necessarily includes aliens. Regardless HR-71-3-VOL 2-42 of any arguments that may be made on that question it is recognized that aliens have been included in the enumeration used as a basis for apportionment and the proposal here seeks to settle the question once and for all by constitutional declaration. It is our view that the proposal represents, in any event, no departure from the spirit of the Constitution. In fact such changes have taken place in the laws of the States and otherwise since the Constitution was adopted that the proposal here made is necessary in order to make congressional apportionment conform with those changes. The situation as to aliens was entirely different both legally and practically when the Constitution was adopted from what it is to-day. There was then a dominant desire to secure immigration to this One of the complaints against King George was that he had interfered with emigration to America. Some of the States had no naturalization laws and in those States which did have them the requirements for naturalization were of the simplest character. In no one of the 13 States was there any requirement that the applicant for citizenship have any knowledge whatever of American institutions. In no State was ability to speak the English language required. Substantially all that was required in any State was that the applicant take an oath of allegiance. In few, if any of the 13 States, was citizenship required as a condition of suffrage. Under such a situation it is not surprising that little, if any, consideration was given in the constitutional convention to the questions of whether aliens should be included in the enumeration for apportionment of Representatives. To-day the situation is entirely different. Selective restriction of immigration has become our settled policy. More than that, the whole situation has been changed in the matter of suffrage. It has now been written into the constitution of every State in the Union that no one can vote who is not a citizen either by birth or by naturalization. Under the great compromise effected in the constitutional convention as to the composition of the Senate and the House, one body, the Senate, was to represent the sovereign States, and the other body, the House, was to represent the people more directly. The collective assembling of all the people being impossible the House of Repre- · sentatives was set up as a legislative agency to represent the people of the various States. If the people themselves were to-day assembled to legislate, the aliens in the various States would have no voice in legislation. As heretofore stated that was not true when the Constitution was adopted. It is true to-day because suffrage is now denied to aliens in every State of the Union. If the aliens themselves could not assemble with other persons from the various States and participate in Federal legislation-if such an assembly of the people themselves were possible-why should any State have a representative vote in the House based upon the aliens living in that State? It is our view that to include, to-day, aliens in the enumeration is to do violence to the theory upon which the House of Representatives was conceived as a legislative device to represent the people of the States. It is not necessary here to emphasize the importance which attaches to this proposal. In the House itself it involves the influence and the vote of States upon questions vital to the Nation's welfare. In its application to the electoral vote it involves a determination of the Presidency and the Vice Presidency. Brief reference may be made here to some of the main arguments advanced against excluding aliens from the enumeration. It is urged that aliens own property, pay taxes, and are subject to our laws, and that therefore they should be counted for increasing representation from the State within which they live. The historic and revered principle of "no taxation without representation" is invoked in their behalf. We submit that the proposal involves no violation of that principle. If so, then logic would seem to require that aliens be given a voice in selecting their representatives. No one proposes that. If such argument were to prevail, what should we say about the Territories of Alaska and Hawaii, whose citizens are not given a vote in the House of Representatives? The proposal here is not to take from the aliens any rights or privileges properly belonging to them. In property and person they enjoy all the safeguards of our law and the beneficence of our institutions. Another argument advanced against the proposal is that the basis. of representation in the House of Representatives is really a method of representing the wealth, the property, of the various States, and that since aliens own property and pay taxes it would do violence to the theory to exclude them from the enumeration. We reject this contention and the governmental philosophy which inheres in it. It is true that there were those in the Constitutional Convention who insisted that the basis of representation should be the wealth of the various States and their comparative ability to contribute to the support of the Federal Government. The inclusion of the word "wealth" in the basis of representation was, however, rejected by the convention. There are still those who contend that the primary, if not almost the whole duty, of government is the protection of property rights. Sacred as are the rights of property, we submit that the House of Representatives, the popular branch of the Federal legislature, represents human values still more fundamental and vital than physical property or the ability to contribute taxes to the support of the Government. Again, it has been urged that this proposal comes as an attempt to correct alleged "inequality" among the States but does not touch a greater "inequality" which is equal representation of the States in the Senate. We submit that "inequality." among the several States as to the number of aliens is not the basis for this proposal. We seek to exclude aliens from the enumeration in every State, regardless of size, wealth, population, or any other consideration. Nor do we concede the contention of "inequality" as to representation in the United States Senate. That contention constitutes an indictment of one of the fundamental agreements that made possible the Federal compact, namely, that the Federal Government was to be a union of Sovereign States. In the States then admitted and in the States subsequently to be admitted to the Union was to reside the great reservoir of governmental power. That being true, the Senate in its equal representation from each State typifies "equality" and not "inequality" among the sovereign States. This "equality" of representation in the Senate represents something more than a mere expedient to secure adoption of the Constitution. It carries the idea of strong local self-government which is a part of the very genius of our institutions. The great body of governmental power should lie as close as possible to the source of power, namely, the people themselves. Within the limited confines of a State there is opportunity of somewhat intimate acquaintance between public officials and those whom they serve. Under such a system is bred a more intimate sense of official responsibility. These and other fundamental considerations not necessary to elaborate here are basic in the structure of a Federal union formed from sovereign States. "Equality" of representation in the Senate was as necessary to prevent invasion of the rights of the smaller States as was proportionate representation in the House necessary to prevent invasion of the rights of the larger States. This proposal is based upon the fundamental proposition that those who are not an integral part of our governmental household, who are not a part of our civic family, who are at best only guests at our fireside, and who still owe allegiance to a foreign country should not be counted in determining a State's representation in the American' Congress or its vote in the election of a President. A number of States have provisions similar to the ones here proposed for the apportionment of the members of their State legislative body. The State of New York in its constitution does precisely what is here proposed in apportioning representation in the State assembly. The New York provision is as follows: Representatives shall be apportioned among the several counties of the State, as nearly as may be, according to the number of their respective inhabitants, excluding aliens. Iowa, Kansas, Maine, Massachusetts, North Carolina, Tennessee, and to a modified extent, California, have similar provisions which exclude aliens in the apportionment for the State legislature. There is some dissimilarity in the provisions, but all involve an adherence to the principle here advanced. Figures from the 1930 census showing the number of aliens in each State are not yet available. It is therefore impossible to show precisely the effect which exclusion of aliens would have under the 1930 census. The figures for the 1920 census are available and a table based on those figures follows: Table showing a reapportionment of 435 Representatives in Congress on the basis of the total population as compared with a reapportionment based on the population exclusive of the foreign born who have not become naturalized. It is based on the census of 1920 and the method of "major fractions" was used Table showing a reapportionment of 435 Representatives in Congress on the basis of the total population as compared with a reapportionment based on the population exclusive of the foreign born who have not become naturalized. It is based on the census of 1920 and the method of "major fractions" was used—Continued This table shows that if we were reapportioning the House upon the 1920 census there would be a third of the States of the Union which would have different representation if aliens were excluded than they would have if aliens were included. The table shows that: Arkansas, instead of retaining its present number of Congressmen, would gain one. California, instead of gaining three, would gain two. Connecticut, instead of gaining one, would remain the same. Nebraska, instead of losing one, would remain the same. |