I have little patience these days for the rantings of so-called “Constitutionalists”-those folks who insist that every thing the government does these days is somehow in violation of the Constitution or “contrary to the intentions of the founding fathers”. For the most part they are wrong-and where they may actually be right, the issue has probably been already settled in the Supreme Court or some other judicial forum. People who argue about what is happening is constitutional or not, need to look at the whole document-as amended.
The particular issue that set me off this morning was seeing a tirade by one of my Facebook friends about the US Census-and how it was some conspiracy to invade his privacy. As the extra added bonus he then spouted the usual Tea-bagger rallying cry about the questions the Census asked: Its unconstitutional.
Except of course-its not. The census is specifically called for in the Constitution:
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 chuse 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.
My supposedly learned Facebook commenter believes that the Census can only ask questions about how many people are in his house. Anything else, he believes is part of some sort of evil conspiracy. To bolster his case-since that pesky ” in such Manner as they shall by Law direct” clause seems to directly contradict his assertion, he cites a case from 1897: ICC vs Brimson.
Now what is really interesting about this line of argument is that this particular case had nothing to do with the Census-in fact the census bureau is never mentioned once in the full opinon. The case was a rather narrow decision on the right of the ICC to turn to the courts to enforce its mandates. And in the end it ruled that the ICC’s taking it’s case to court was constitutional.
we do not feel obliged to go further at this time than to adjudge, as we now do, that that section, in the particular named, is constitutional, and to remand the cause, that the court below may proceed with it upon the merits of the questions presented by the petition and the answers of the defendants, and make such determination thereof as may be consistent with law. Any other course would, it might be apprehended, involve the exercise of original jurisdiction, and might possibly work injustice to one or the other of the parties.
This is an example of the well known tactic-which seems to be growing in popularity since the rise of Glenn Beck and other self-serving idiots-of grasping at straws.
What, of course, these self styled constitutional scholars neglect is the fact that these issues of what can and cannot be asked have already been ruled on-in fact the Supreme Court has held up the right of the Census Bureau to ask its 10 questions. It would appear that there is substantial case law on the side of the Census takers-moreso than on the side of Tea Bag central:
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 Moralescourt 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).
Probably the most disturbing thing to me is that while most of these folks will work themselves into a white lather over the fact that the Census bureau asks questions about statistics (e.g “Do you own your own home?”)- they don’t seemed to be bothered one bit by the rather extensive data mining that goes on by companies like Google and others. Which if properly harnessed and combined with the government data bases-like driver’s licences-could yield much more information. And you would never know it had happened.
If I were a company-or an organization with a mind to do so-I could probably find out how many people are living at your house, whether you own it, and a lot more information besides. And that type of data mining goes on every day. My web browser already seems to have the ability of discerning whether I like women naked or clothed. (For the record it is both). I don’t see people with angry signs camped outside Google’s headquarters. Every day information on what you surf, where you surf, what you view is sold or exported for profit.
Nor do I see these folks, who claim to be offended at the Census bureau asking questions that invade their privacy, getting up in arms about, things like warrantless wiretapping of American citizens. I’m curious as to why that does not bother them-but 10 questions, of which the Census Bureau are bound by law to protect-has them distrustful and suspicious. If anything, they ought to be up in arms about both issues.
There’s a fervor of anti-federalism going on right now and in all honesty I still find it incredibly disturbing. The angry man standing on his soap box shaking his fist at the threats of gov’t, in any form, instead of being part of the solution to the problems that face our nation.
None for me thanks. I’ll answer the Census and I will do it for one reason alone: it is my duty as a citizen. The rest is just noise.