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Constitutional Law I
SUNY Buffalo Law School
Gardner, James A.

Topic #1—Introduction: Thornton


Article 1, Sec 2, Clause 3; Amendment XIV—took out “3/5 person” referring to slaves
“Actual Enumeration” refers to census. # of persons determined by census
Difficult to count # of people in U.S.

Those out of the country
Illegal immigrants & poor don’t want to be counted
Black and Hispanic urban populations harder to count and are consistently undercounted

Statistical Sampling:

à Census uses statistical sampling to remedy this problem of undercounting. How it works:
Compare traditional count with an intensive concentrated count. Apply this sampling method to adjust results. Census Bureau not allowed to do this (Rep for it, Dem against it)

Would it be constitutional for census bureau to use statistical samples (if Congress passed a law)?


a.) TEXTUAL ARGUMENT: Not “actual” enumeration if Congress didn’t actually count that person. This method only yields an estimate and “actual” means literally counting the # of people. Definition of counting means “1,2,3,4…”
b.) FRAMER’S INTENT: Framer’s didn’t intend statistical sampling. They wanted “whole persons” to be counted and sampling might yield fractions. Could overestimate # of ppl in state and give them too much say = bad ß INFERENCE FROM BAD CONSEQUENCES à Also, there is a lot at stake when counting # in a state. This could mean gaining or losing a representative. Example: Utah going to court over census practice of how to count overseas population. If these ppl are counted, they gain another rep and N. Carolina loses one.


a.) TEXTUAL: “Actual” refers to accuracy and sampling produces more accurate count of people
b.) PRECEDENT: they used estimation in the constitution! In doing that, the Framer’s were setting a precedent to follow.
c.) DEMOCRATIC PRINCIPLES: Framer’s intended to have equal representation. This is a fundamental democratic principle.

Types of Arguments Used:

1.) TEXTUAL: argument based on words appearing in the document. Assertions about the meaning of the words.
2.) FRAMER’S INTENT: not a very good argument if no

nt is worthy of being followed.

Holding in Powell: Congress can’t add or change qualifications
–This was the Framer’s historical understanding. How do they know?
· Based on the English experience: Wilke’s affair. Framer’s knew about it and liked the authority that came out of it (namely that qualifications of those serving in Parliament are fixed) = HISTORICAL ARGUMENT

Describe Democratic Principles

Unlimited popular choice

Then describe how this applies to the limited power of the States. Powell doesn’t end case because it only deals with Congress’ inability to impose restrictions, the next section deals with STATE imposed qualifications.

Petitioners try to make an argument based on 10th amendment. They say Amend 73 is appropriate exercise of State’s reserved power to place additional