What makes this claim of unconstitutionality especially absurd is that the U.S. Constitution itself mandates a census every ten years. And our nation's founding document gives Congress the authority — and flexibility — to carry out the enumeration "in such Manner as they shall by Law direct."
Since the first census in 1790, that's just what Congress has done. At first, lawmakers directly oversaw implementation of the decennial count; they eventually appointed a census superintendent and, in 1902, created a permanent census agency. These adaptations, along with the use of new data collection, statistical sampling, and technological innovations have allowed our nation to successfully conduct counts through the westward expansion, the Civil War, and the Great Depression.
So what’s the difference between the ACS and the census? Nothing. It is another example of the many refinements the Census Bureau has implemented over the years, and one that is designed to impose less, not more, of a burden on the public.
Together with the most recent decennial count, ACS data tell us who we are as a nation, which in turn informs the prudent distribution of trillions of federal, state, and private dollars, as well as investment decisions that can drive economic growth. This is exactly the outcome envisioned by James Madison, who successfully argued for the collection of data beyond a headcount during the House debate on the first census bill in 1790. Madison said that it was with “this knowledge the legislature might proceed to make a proper provision for the agricultural, commercial and manufacturing interests, but without it they could never make their provisions in due proportion.”
The courts have agreed with the Founding Fathers. As early as 1870, the Supreme Court confirmed the power of Congress to require both an enumeration and the collection of statistics in the census. More recently, a federal circuit court specifically affirmed the constitutionality of the questions asked on the census long form.
Given the breadth of decision-making and the amount of fiscal resources riding on reliable data, the proposal to remove the requirement that individuals respond to the ACS is an alarming development. No one can deny that we are a data-driven society. The public sector depends on these data to understand the people it is tasked with serving. By the same token, no business would make important decisions without objective, accurate data as guideposts. Why would some members of Congress want to run the government without the most accurate information available to guide their decisions?
As a law professor, this effort vexes me; as a civil rights advocate, it troubles me. The civil rights movement of the 1960’s was a fight to stand up and be counted at the voting booth and in the fullness of American life. And in today’s data-driven society, we shouldn’t need to fight again just to be counted by our census.
Henderson is the president and CEO of The Leadership Conference on Civil and Human Rights, a coalition of over 200 national civil rights and human rights organizations, and the Joseph L. Rauh, Jr., Professor of Public Interest Law at the David A. Clarke School of Law, University of the District of Columbia