In the wake of the announcement that the Census Bureau would start asking a question about citizenship on the form used for the decennial census, an enormous amount of claptrap has been written about the census. The State of California is presently suing the federal government over it.
Here’s what the Constitution says about the census in Article I, Section 2:
Representatives and direct Taxes 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, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. 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; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
What did the Framers mean by “enumeration”? Judging by the use of the word in the Constitution, Federalist, and other contemporaneous writings it meant a definition, a specification. Enumeration was distinguished from implied.
The first census, the Census of 1790, included by household the names of the heads of households, the number of free white males of age 16 or older in the household, the number of free white females of age 16, the number of other free persons, and the number of slaves. That was it.
The second census, the Census of 1800, further subdivided that into age groups. Various subsequent censuses have added other information including occupation, country of origin, etc.
George Washington, president at the time of the first census, thought it undercounted the population as did Thomas Jefferson, his Secretary of State. No adjustments were made to the census to correct that. It was an enumeration not an estimate.
To be strictly constitutional no other information other than the number of free and slave individuals in a household should be asked but additional information has been asked since the very first census. Decisions on what would be asked in the census have not been made by the Congress but by the Census Bureau itself. I think these deviations from the strict language of the Constitution are better characterized as extra-constitutional rather than unconstitutional.
Now consider two questions. First, do questions about citizenship on the census serve any significant legitimate government interest? Second, are estimates of population constitutional or unconstitutional?
The census is used for purposes besides Just apportionment of representatives between the States. It is used in many programs to determine how much money goes where. The census bureau lists those here https://www2.census.gov/programs-surveys/decennial/2020/program-management/working-papers/Uses-of-Census-Bureau-Data-in-Federal-Funds-Distribution.pdf .
Given that citizenship is inevertably tied to eligiblity for some of those programs, the government does have a legitimate purpose in getting an accurate count of citizens. The other remark is not being a citizen does not mean illegal – a person can have legal status as a permanent resident or process a work visa.
So I think the brouhaha is unjustified; but at the same time I understand the uproar; the census means money and money talks.
Yeah, I understand the uproar, too.
My very point is that those purposes are extra-constitutional. I don’t think the argument that including a question about citizenship is unconstitutional is a very good one.
I’m not in the Doug Mataconis rule of Constitutional interpretation that the omission of anything precludes it, as in NPR violates the Constitution. I do think that the specification of a requirement “enumeration” probably excludes alternatives though.
I thought that we had the ACS now to ask those more invasive/broader questions? This is not something I am going to get all worked up about, but I do think that its real purpose, just like every election reform proposed by Republicans in the last 15 years, is to somehow improve their gerrymandering or keep people they don’t like from voting.
Steve
I think this is only about power and money. California has more non-citizens than any other state in terms of absolute numbers and as a percentage of the population ( about 13%). This change is clearly a very real threat to California in particular.
Irony – Texas is #2.
Irony #2 – People from California love to complain about the unfairness of the Senate and the “relic” 2nd Amendment, but the enumeration clause suits them just fine.
Query- PD might know. What happens if people just leave the citizenship question blank? Do they not count that questionnaire? Is there a penalty? If not, then why wouldn’t just mass refusal to answer the question blunt the effect?
Steve
As it happens I know the answer to that. You are in violation of Title 13 Section 7 and can be fined. The fine is pretty nominal—$100. If you give false answers the fine is $500 and you can be put in jail.
Recommending to someone else that they not fill out their census form completely can put you in legal trouble, too.
. . . and now I know. Though a politifact has an article indicating that the fine might be $5,000 (sounds like two different penalty provisions might apply, so it might be ambiguous). Also the article says nobody has been prosecuted since 1970.
So, just a guess here, but I bet it would cost more than $100 to prosecute, collect the check and process it. If this was done on a mass basis, sounds like it would be hard to stop or effectively fine.
Steve
As PD pointed out the Sentencing Reform Act of 1984 upped the penalty to $5,000. My understanding is that prosecutions are rare but they happen.