Skip to content

Maloney: GOP’s Census Logic Is Unconstitutional

No action by House Republicans more confirms they have driven themselves off the ideological cliff than their recent vote to label the Constitution itself as “unconstitutional.”

In a partisan fury, they voted with near-unanimity to defund the American Community Survey, the modern descendant of decennial questionnaires required from almost every household since Thomas Jefferson and James Madison administered the very first national census in 1790.

Never mind that the ACS is an innovation that produces annual estimates from a little more than a 2 percent sample of all homes instead of burdening every single household — the GOP considers this invasive. And never mind that the ACS is authorized by law under powers specifically granted to Congress in Article 1, Section 2 of the Constitution, or that Madison and Jefferson themselves crafted the original questions on industry and occupation from which questions on the ACS are descended. The extremist House GOP believes these questions represent everything wrong with government.

The GOP tramples on the genius of the Founding Fathers. Their vote defunds a core tool of constitutional protection of liberties — one that has helped to preserve our democracy through more than two centuries.

My conservative colleagues should be reminded that until our Constitution, every census in world history had been a tool of government used to either tax, conscript into military service or oppress populations governed by a census-taking central government.

In their brilliance, the Founding Fathers turned centuries of history on its head. By embedding a decennial count into our Constitution to ensure an apportioned Congress, they transformed the census into a tool of the governed over their government. They did so to prevent the tyranny of the crown replaced by the tyranny of new political elites.

As much as the doctrines of separation of powers, federalism or checks and balances, the American invention of the decennial census has helped preserve inalienable rights in equal terms decade after decade. The census has thrived and been honored by the American public with incredibly high rates of participation, as the nation has grown from 13 states of almost 4 million people to a global super power of 308 million people.

Why would the House GOP zero out funding for this core constitutional mandate?

My Republican colleagues offered tortured logic during floor debate, objecting to the fact the law requires a response to the census and the ACS: “The government can’t do a single, solitary thing to you if you don’t vote. They can’t fine you. They can’t put you in jail. But somehow or another they can if you fail to fill out the document that apportions the Congressional districts so you can vote.” They must have skipped their high school civics class. The voting franchise is the ultimate expression of personal liberty. There are no laws to punish you for not voting, or even for not registering to vote, because your choice not to participate harms only you.

The framers understood that choosing not to participate in the census harms the rest of us, and indeed the nation itself. That is why the Census Act of March 1, 1790, imposed a fine of $20 on any person over age 16 who failed to cooperate with census takers, and why responding to every census, including the ACS, has been required by law.

When transmitting the first census results to President George Washington in 1791, Jefferson complained, “we know in fact that the omissions have been very great.” The secretary of State was grievously worried the enemies of the new American republic would mistake this undercount for a weakness in the new nation.

Failing to answer the census is akin to failing to register for the selective service, which is punishable by a fine of $250,000 and five years in jail. The selective service imposes on your personal liberty, but the national interest requires having a ready registry in case of national emergency.

In South Carolina, failing to appear for jury duty is subject to a court fine and other penalties. In that state, the obligation to secure a jury of one’s peers trumps any imposition on a prospective juror’s personal liberty — as do an accurate count of the nation and the enormous benefits to businesses and local communities that come from the ACS.

In a demonstration of the importance that the framers placed on the census, they embedded it in the Constitution even before they turned to the issue of membership in the House or composition of the Senate. Here’s hoping the Senate comes to the rescue of Article 1, Section 2, Clause 3 and restores full funding to the Census Bureau and the ACS.

Rep. Carolyn Maloney (D-N.Y.) is a senior member of the Oversight and Government Reform Committee, which has jurisdiction over the census.

Recent Stories

At Aspen conference, a call to prioritize stopping gun violence

Appeals court rules preventive care task force unconstitutional

Key players return to Congressional Softball Game, this time at the microphone

Bannon asks Supreme Court to keep him out of prison

Her family saw the horrors of the Holocaust. Now Rep. Becca Balint seeks to ‘hold this space’

Supreme Court clarifies when a gun law is constitutional