A Territorial Approach to Representation for Illegal Aliens

This Note rejects these arguments in favor of the thesis that the census clause affirmatively requires including illegal aliens in the census figures used to apportion representatives among the states. Part I argues that the framers intended to allocate representation among the states based on a number of considerations, including wealth, and chose total population within the territory of each state as the best measure of those considerations. Part II contends that the requirement of individual equality in voting rights does not apply to interstate comparisons of voting power. Rather, a specific structural agreement reached by the states as sovereign entities governs the allocation of representation among them. Part III argues that while the question of counting illegal aliens in the census presents numerous technical and political issues subject to congressional discretion, the essential constitutional issues concern the interpretation of article I, section 2, especially the definition of “person.” These issues ultimately lie within the purview of the Supreme Court.