Answering the Census. March 30, 2010
Posted by cybertao in Constitution, Law.Tags: census, Constitution, Law, LinkedIn, Supreme Court
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People on Facebook and elsewhere have been asking: “Does the Constitution require me to answer the questions on the census?” Some have said the only Constitutional question, and therefore the only question we have to answer, is the number of people living at the address. The truth is, we are required to answer the questions on the census and on the more detailed Community Survey that the Census Bureau is empowered to undertake.
First of all, the Constitution establishes the limits of the federal government. It does not require you to do anything. Second, we are governed by more than just the Constitution. There are laws. Just because the Constitution does not mention a question on the census does not necessarily mean you don’t have to answer it. Assuming the question is authorized by the Census Act (U.S.C. title 13) then you have to answer it. Unless and until the statute is found to be unconstitutional by the Supreme Court, then it is the law.
As far as the census goes, there are really two important questions: (1) how is the enumeration, the count, to be determined, and (2) what, if any, data can be collected besides the enumeration? The first issue, how to do the count, is the really important one because that determines how many Representatives each state has, how many members of the electoral college each state has, and how individual states draw their political boundaries (see Wisconsin v. City of New York et al. 517 U.S. 1, 1996), not to mention those government handouts that the commercials keep reminding us to get our share of.
The first question has been addressed by the Supreme Court a number of times. The second question has not.
Here is what Article 1, Section 2 of the Constitution says:
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, counting the whole number of persons in each State (as amended by the Fourteenth Amendment). 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. (emphasis added)
That there is an enumeration at all is an important change in the status quo. In England, Parliament did not conduct any reapportionment during the 1700′s “despite tumultuous demographic changes wrought by the industrial revolution. Over the centuries, Parliament had never once authorized a comprehensive enumeration.” (America’s Constitution: A Biography, Akhil Amar, p. 84, Random House, 2005.)
The first question is, essentially, how accurate does the enumeration have to be? Some say the words “actual enumeration” mean a count must be conducted, while others focus on the words “in such manner as they shall by law direct” and argue that an estimate is permitted as long as the methodology is established by legislation. In our time, proponents of using estimates have generally been Democrats who were concerned about minorities being under-represented in an actual count.
There are some early indications that an actual count was what was intended. For example, in Federalist No. 36, Hamilton, arguing for the power to tax, writes: “An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression.” In our century, what Hamilton feared may have come about as we shall see below.
The Census Bureau, which is part of the Commerce Department, wanted to use statistical sampling in the 2000 Census to address what it referred to as a chronic undercounting of minorities, children and renters. The House of Representatives filed suit to prevent the use of statistical sampling, which is allowed by the Census Act, except for the determination of representation. 13 U.S.C. §195. The Court agreed with the House, with the result that statistical sampling can be used for the general demographic data that the Census Bureau is authorized to collect, but it cannot be used for apportionment.
Then in 2002, the liberals prevailed when the Court held in Utah v. Evans, Sec. of Commerce, 536 U.S. 452, that the Census Bureau could use a method called “hot-deck-imputation” to determine apportionment. This method infers that an address for which an actual count could not be made has the same demographics as its closest neighbor of the same type (single-family or apartment). Utah sued because the result would be that Utah would lose a Representative, while North Carolina would gain one. The Court found that this imputation was not statistical sampling and, therefore, was not prohibited. Leaving out the convoluted technical arguments, this means that apportionment can be changed on something less than an actual count.
In a dissenting opinion, Justice Thomas wrote:
Well familiar with methods of estimation, the Framers chose to make an ‘actual Enumeration’ part of the constitutional structure. Today, the Court undermines their decision, leaving the basis of our representative government vulnerable to political manipulation.
The second major question is whether the Census Bureau can ask questions that go beyond merely counting the number of people. Madison seemed to envision more than just a count. He purportedly said the census should be performed: “so as to embrace some other objects besides the bare enumeration of the inhabitants” to enable Congress to “adapt the public measures to the particular standards of the community.” Quoted in “Values in Design”, by Timothy Weber, NYU Dept. of Culture & Communication.
I saw a book once that advocated as a defense to foreclosure arguing that since you got your loan in dollars you didn’t get anything in value because only silver has Constitutional value as legal tender. That is silly and a good way to lose your house. The Legal Tender Cases clearly established the right of the federal government to issue paper money. Article 1, Section 8, Clause 5 of the Constitution gives the federal government exclusive power to “coin money.” It does not address issuing paper money. Coin, being made of metal, has intrinsic value, and prior to the Civil War, the government had not issued paper money on a regular basis that were not backed by gold or silver. The Legal Tender Act of 1862 allowed the government to issue paper money as legal tender for all debts. Objections were made and lawsuits filed arguing that it was not specifically authorized by the Constitution. The Court said that specific authority is not required:
It is not indispensable to the to the existence of any power claimed for the federal government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. And it is of importance to observe that Congress has often exercised, without question, powers that are not expressly given nor ancillary to any single enumerated power.
The Court went on to give some examples of such powers exercised by the federal government, including the expansion of the census beyond a mere counting:
Another illustration of this may be found in connection with the provisions respecting a census. The Constitution orders an enumeration of free persons in the different states each 10 years. The direction extends no further. Yet Congress has repeatedly directed an enumeration not only of free persons in the states but of free persons in the territories, and not only an enumeration of persons but the collection of statistics respecting age, sex, and production. Who questions the power to do so? Legal Tender Cases, 12 Wallace 457; 20 L. Ed. 287 (1871)
Then in 1901, a federal district court said in U.S. v. Moriarty that:
The functions vested in the national government authorize the obtainment of information in order to enact laws adapted to the needs of the vast and varied interests of the people, after acquiring detailed knowledge thereof. the government has the right to make the researches in order to meet its ever-widening obligations to the welfare of its citizens and to the world. For the national government to know something, if not everything, beyond the fact that the population of each state reaches a certain limit, is apparent, when it is considered what is the dependence of this population upon the intelligent actions of the general government.
Obviously, the census has come a long way from the enumeration described in the Constitution. The description of the census in the Legal Tender Cases is not part of the holding and so does not set any precedent, and the Moriarty case was merely a district trial court. Until the Supreme Court gets involved, questions will remain about the authority of the census to go beyond what is necessary to determine the number of Representatives of each state. But those questions are merely academic since Congress has authorized an expansion of the scope of the census and you do have to answer – unless, of course, you want to be the “test case.”
