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Why Jefferson, Madison and the Founders Enshrined the Census in our Constitution

The U.S. Constitution empowers the Congress to carry out the census in "such manner as they shall by Law direct" (Article I, Section 2). The Founders of our fledgling nation had a bold and ambitious plan to empower the people over their new government. The plan was to count every person living in the newly created United States of America, and to use that count to determine representation in the Congress.

Enshrining this invention in our Constitution marked a turning point in world history. Previously censuses had been used mainly to tax or confiscate property or to conscript youth into military service. The genius of the Founders was taking a tool of government and making it a tool of political empowerment for the governed over their government.

They accomplished that goal in 1790 and our country has every 10 years since then. In 1954, Congress codified earlier census acts and all other statutes authorizing the decennial census as Title 13, U.S. Code. Title 13, U.S. Code, does not specify which subjects or questions are to be included in the decennial census. However, it does require the Census Bureau to notify Congress of general census subjects to be addressed 3 years before the decennial census and the actual questions to be asked 2 years before the decennial census.

Questions beyond a simple count are Constitutional

It is constitutional to include questions in the decennial census beyond those concerning a simple count of the number of people. On numerous occasions, the courts have said the Constitution gives Congress the authority to collect statistics in the census. As early as 1870, the Supreme Court characterized as unquestionable the power of Congress to require both an enumeration and the collection of statistics in the census. The Legal Tender Cases, Tex.1870; 12 Wall., U.S., 457, 536, 20 L.Ed. 287. In 1901, a District Court said the Constitution's census clause (Art. 1, Sec. 2, Clause 3) is not limited to a headcount of the population and "does not prohibit the gathering of other statistics, if 'necessary and proper,' for the intelligent exercise of other powers enumerated in the constitution, and in such case there could be no objection to acquiring this information through the same machinery by which the population is enumerated." United States v. Moriarity, 106 F. 886, 891 (S.D.N.Y.1901).

The census does not violate the Fourth Amendment. Morales v. Daley, 116 F. Supp. 2d 801, 820 (S.D. Tex. 2000). In concluding that there was no basis for holding Census 2000 unconstitutional, the District Court in Morales ruled that the 2000 Census and the 2000 Census questions did not violate the Fourth Amendment or other constitutional provisions as alleged by plaintiffs. (The Morales court said responses to census questions are not a violation of a citizen's right to privacy or speech.) "…[I]t is clear that the degree to which these questions intrude upon an individual's privacy is limited, given the methods used to collect the census data and the statutory assurance that the answers and attribution to an individual will remain confidential. The degree to which the information is needed for the promotion of legitimate governmental interests has been found to be significant. A census of the type of Census 2000 has been taken every ten years since the first census in 1790. Such a census has been thought to be necessary for over two hundred years. There is no basis for holding that it is not necessary in the year 2000."

The U.S. Court of Appeals for the Fifth Circuit affirmed the District Court decision on October 10, 2001, 275 F.3d 45. The U.S. Supreme Court denied petition for writ of certiorari on February 19, 2002, 534 U.S. 1135. No published opinions were filed with these rulings.

These decisions are consistent with the Supreme Court's recent description of the census as the "linchpin of the federal statistical system … collecting data on the characteristics of individuals, households, and housing units throughout the country." Dept. of Commerce v. U.S. House of Representatives, 525 U.S. 316, 341 (1999).

The Amazing Apportionment Machine

How does apportionment actually work? Through animation, the U.S. Census Bureau uses this video to help explain how the apportionment formula is used to ensure equal representation for all, just like the Founding Fathers planned. Running time: 1:52

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