The 2010 Census and The Constitution

I think the founders of this great nation and the writers of the U.S. Constitution did an excellent job, and more-often-than-not we should look to the Constitution and its supporting documents (like the Federalist Papers) to learn how to run a government correctly. Its core values, unfortunately, aren’t at the core of our government anymore. The Constitution was predicated on a very simple, ground-breaking doctrine: The power belongs by default to the people, and only those authorities expressly granted to the government by the people (in the Constitution itself) can be validly exercised by it.

If you can find a sentence in the Constitution that expressly gives the federal government authority to partially nationalize our banking and automotive industries, I’ll give you $500. Hint: it’s not in there. Don’t waste your time looking for it.

It might surprise you to know that I don’t think the U.S. Constitution is necessarily perfect. It might surprise you even more (since our schools don’t usually teach Constitutional history very accurately) that the founders didn’t think it was necessarily perfect either. That’s why there were two explicit procedures laid out in the Constitution itself for amending the document (see Article 5) and changing the rules as we go—the House of Representatives (by 2/3 majority) can propose amendments, or 2/3 of state legislatures can call for a new Constitutional Convention to propose amendments (this second method has never been used).

If we really want to give the government authority to nationalize the automotive industry, we can simply add a new item to the list of government powers clearly enumerated in Article 1, Section 8. We’re not supposed to just ignore the Constitution; we’re supposed to change it when needed.

Regardless, one of the actual responsibilities of the federal government is to perform an ‘enumeration’—or a census—every ten years. This doesn’t get a lot of attention normally, but it is extremely important. The government has to determine how many members of the House of Representatives each state should get since the house is divided proportionally, and an accurate enumeration of all U.S. citizens between the states is necessary to do this fairly and correctly. Article 1, Section 2, Clause 3 lays out this responsibility (I have omitted some bits using ellipses [ . . . ] to reflect changes made by the 14th and 16th amendments and to remove the original 1790 apportionment at the end):

Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons . . . and excluding Indians not taxed. . . . 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. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative. . . .

Interestingly, this fairly simple requirement has sometimes become political. Amy Sullivan writes in Time Magazine about the reasons why the upcoming 2010 census is stirring up partisan politics, and the reasons are pretty simple. Because the number of people the census counts in each state directly effects how many Representatives that state gets in the House, the Republican and Democratic parties each want to maximize their own benefits. It’s typical of the redistricting gerrymandering we see in each state legislature following each census, just this bit of it happens before the census.

At issue this time is, primarily, whether it is appropriate to using ‘sampling’ to augment the census results. In short, lots of people don’t send in their census forms and don’t answer the door when the census taker comes to the door. As a result, certain neighborhoods and particular demographic groups—for whatever reason—tend to get underrepresented or overrepresented in the census numbers.

Democrats tend to support using statistical sampling to correct the incomplete census numbers, which is likely to boost their benefit in redistricting since it is primarily inner-city communities and minority groups who get underrepresented in census results. Meanwhile, Republicans charge (mostly for their own political reasons) that the Democratic efforts to introduce statistical sampling amount to nothing more than a power grab.

Here is the nonpolitical reality, which is sure to anger both parties:

First pissing off the Republicans, statistical sampling is in-and-of-itself a good idea (provided it is implemented carefully and fairly). With over 300 million people (est.) living in the United States, it will be absolutely impossible to get an accurate count. Statistical sampling gives us the ability to cautiously adjust the numbers so they are closer to reflecting reality. The government already holds vast databases with useful demographic information about the citizenry of the United States, and we should leverage those. Between a traditional census, United States Postal Service records, Internal Revenue Service tax records, and other wide-ranging federal, state, and local databases we should be able to come up with a fairly accurate number.

Second, pissing off the Democrats, statistical sampling is unconstitutional and cannot be permitted without a Constitutional amendment. The unconstitutionality of something hasn’t stopped them before, but it’s worth noting and must be considered. We need to stop strategically ignoring parts of the Constitution we don’t agree with, and start modifying it (when it’s actually necessary) using the proscribed amendment process. Article 1, Section 8 clearly refers to an ‘actual enumeration’, not a statistically accurate extrapolation based on an actual enumeration combined with other data. If we intend to use anything other than an ‘actual enumeration’ to calculate our census and the apportionment of Representatives, then we must amend the Constitution to permit it.

Scott Bradford has been putting his opinions on his website since 1995—before most people knew what a website was. He has been a professional web developer in the public- and private-sector for over twenty years. He is an independent constitutional conservative who believes in human rights and limited government, and a Catholic Christian whose beliefs are summarized in the Nicene Creed. He holds a bachelor’s degree in Public Administration from George Mason University. He loves Pink Floyd and can play the bass guitar . . . sort-of. He’s a husband, pet lover, amateur radio operator, and classic AMC/Jeep enthusiast.