The Census and the Definition of Human

The Census is used to decide political power. It does this by counting all humans inside the different states.

Human is undefined.

We have, for example, the proposed law in Louisiana that would make it a homicide to end the life of a human at any moment after fertilization. This implies that, in the state of Louisiana, that a human is at minimum a single fertilized egg inside a human woman.

In Louisiana, it would be criminal to take any action to end this life so inflating the numbers of inhabitants in the country would require doing ones best to bring the child into the world and seeing you their care. In a state with legalized abortion, that would not be necessary.

More importantly, we might note that a human woman can have millions of eggs (granted, only while very young) and, presumably, some of these could be collected, saved, fertilized, and then mercifully frozen and saved for some rainy day in the distant future. It is completely unethical to do but it is purely in keeping with the laws of other states to say that these were - for however brief a period - humans for purposes of the census tally. But, that state, given its own discretion to define humanity and free to visit any non-cruel and non-unusual fate on those humans for their age and developmental level, can generate millions and billions of bonus citizens.

And of course, that’s before we get into advanced science - cloning egg cells, turning skin cells into egg cells, and so on.

Minus a concrete, shared definition of life, any state can have whatever number on the census that they desire and a textualist would not have any ground on which to complain. Again, this is an unethical solution but so is gerrymandering and nothing in the Constitution stops that (if you ignore the first sentence). Inethicality is not in opposition to the foundational law of our nation.

Don’t forget the 3/5 compromise in the US Constitution where black people were counted as 3/5 of a person.

Clearly the government can be flexible on what constitutes a human for purposes of the census.

There is a different between ‘human’ and ‘legal person’. Human is pretty well defined despite efforts by some to describe certain ethnic groups as subhuman or lessor ‘races’, but the threshold at which an embryo becomes an independently living organism is not distinct, and the point at which it achieves legal personhood is indeed pretty arbitrary, although the US Census only counts people living outside the womb for its purposes.


I thought of that too. Except it’s enslaved people, not Black people, who were counted as three-fifths of a person. And even that is stated indirectly:

As far as I know, this was never amended or removed from the Constitution; it just became irrelevant with the end of slavery.

The 14th amendment, Section 2 removed it. It did not say it removed the 3/5 thing…it just redefined how representation was calculated and the 3/5 bit was gone.

I agree that personhood should be defined in the Constitution, but we will still never have democracy as long as we have the electoral college or the Senate/state’s rights.

I think that it has already been pointed out that the census doesn’t count “humans,” it counts “persons,” which can certainly be a legal construct (although the constitution sets one or two clear boundaries).

But I think the other point, related to what I’ve quoted, is that the federal census is fundamentally a federal operation; conducted by the federal government; under federal law. I assume that states can conduct their own censuses (but I don’t know if any do), but – as I’m sure you know – the federal census isn’t conducted by just asking each state to self-report the number of “persons” living there.

So, whatever a person is for the purpose of the census will be a function of state law (presumably even if the state, for its own purposes, defines the term more broadly or narrowly).

I don’t think this is accurate.
A female baby is born with 1-2 million immature follicles, which could develop into an egg eventually. But about 10,000 of them begin dying every month, starting almost immediately.

During her lifetime, she will only produce about 400 actual eggs --about 13 per year, for about 30 years (age 15-45, roughly) so 390 actual ovulations and fertile eggs. Of those 390 eggs, less than 2 (1.7%) will actually result in a live birth (in developed countries like the USA). This is barely at the replacement rate for the human population.

I didn’t see that when I googled, but I’ll trust that your statement is accurate.

Let’s imagine that Louisiana and California both enact legislation which personizes a fertilized egg. Louisiana does it to restrict abortion. California does it to set their definition for purposes of the census count.

The Federal government hires census takers, ignores California’s horde of frozen, fertilized eggs, and announces a number far lower than California would expect from the number of persons that they have legally created.

This creates a basis for a lawsuit and, in that lawsuit, the state of California would be able to point out that:

  1. The Supreme Court has explicitly given the state the right to make its own definition of a “person”. And similar to how a state is in its right to create voting districts and make other decisions that affect the Federal government - and which the Federal government must respect - this would seem to be such a situation. Whether the Federal government is performing the tally or not, they need to use the state’s rules for that state, per the most recent Supreme Court ruling.
  2. And particularly if people are in jail in some other state for homicide of people exactly like those who should be counted in the California tally, then those must be people. Otherwise, how could it be a non-cruel and non-unusual punishment to be in prison for murder when you have not murdered a person? Either these people are people, to merit that punishment, or Louisiana is breaking the eighth amendment.

ETA: I couldn’t sleep and wrote the OP to get it out of my head so I could go back to bed. I see now that it’s horribly written… Sorry about that.