For the 2010 Census: Name and Address Only (Congress Will Obey the Constitution When the People Demand It)

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Next year the country will go through another census. The people
and the states — the creators and on-going sustainers of the federal
government — have authorized this undertaking (U.S. Constitution,
Article I, section 2). The census should be seen not as a burden
but rather as an opportunity for Americans to practice self-government.
Let me explain.

Our written Constitution embodies ideas to which every member of
Congress has taken an Article VI oath to support. In taking their
constitutional oath the members of Congress are joined by every
member of the 50 state legislatures, every federal executive, legislative,
judicial officer, and every executive, legislative, judicial officer
of the 50 states, as well as all military personnel. That so many
are required to take the oath "to support this Constitution"
is ample evidence that the Framers thought their written document
to be quite important, a belief shared by most Americans.

Our Constitution is written in clear, understandable English.
Consider the census provision. "The [first] actual Enumeration
shall be made within three Years after the first Meeting of the
Congress of the United States [March, 1789], and within every subsequent
Term of ten Years, in such Manner as they [Congress] shall by Law
direct." This allows Congress to count us, but only
count us. The operative word, "Enumeration."

How then can we help Congress? By giving census officials your
name and address, thereby counting you, but nothing more. By doing
this simple task, you assist Congress and census officials fulfill
their oath-taken duties "to support this Constitution."

We have agreed to be counted but the license ends there. With our
consent Congress is authorized to count us for one purpose: to apportion
among the states, as a function of population, the number of House
representatives who will then speak for / represent the people on
federal matters. That's it. As to senators, the representatives
for the states, no apportionment/enumeration scheme is necessary
because no variable is involved: each state is entitled to two senators
regardless of demographic or geographical size ("The Senate
of the United States shall be composed of two Senators from each
State"). These provisions are the result of the delegates'
debates on representation and their final agreement, often referenced
as the Great (or Sherman's) Compromise.

Readers will note that the Constitution simply authorizes an enumeration,
a counting of heads. Not an enumeration by race, Hispanic ethnicity,
personal relationships, or by the manner in which a person occupies
his/her home ("tenure" in census-speak). Not an enumeration
by one's labor force status, by health insurance coverage, by disability
status, by level of education. Not an enumeration of the number
of bedrooms, kitchens, cars, distances/times traveled to work, school.
Not an enumeration of the amount of income made, or by the answers
to numerous other nosy questions found in the American Community
Survey. Just a simple counting of the number of people. Madison's
extensive notes on the 1787 Convention contain not one word about
the delegates spending any of their valuable time discussing the
issues of race, Hispanic origins, personal relationships, or plumbing.

We can thus practice self-government by just giving name &
address. Under our constitutional republican form of government
the people are sovereign. We govern ourselves best by following
our consensually-adopted Constitution, and demanding that Congress
and all federal officials do similarly. readers
understand that the federal government does not exist unto itself;
that is, it is not a self-existing, perpetual entity. Its creation
and its continued existence are subject entirely to the will of
the two principals, the people themselves and the states, which
allow it to remain in being.

"But," the statists will sputter, "the Constitution
says that this counting may be done u2018in such Manner as they [Congress]
shall by Law direct,' and that allows us to get further information
from and about you." This language merely goes to the mechanics
of the counting (who will do it; when it is to be done; how, when
results are to be reported; and so forth); it does not enlarge what
may be counted. Constitutionally the only permitted enumeration
is the number of people in the United States. Why? Because that
count is the determinant for apportionment and therefore the only
pertinent information needed. Not race, not ethnicity, not personal
relationships, not housing tenure. The minimum information requested
for the 1790 census — the number of persons in each household and
the "Names of heads of families" (Public Law, March 1,
1790) — provided Congress with the necessary data to accomplish
Congress's first re-apportionment. Addresses and the names of other
household occupants were not sought. This historical perspective
is significant: the first census established precedent; was nearest
to the date of the Constitution's ratification; and is in straight
alignment with the Framers' purpose and plan. Regardless of which
form you receive in the mail (your address is already known), the
10-question short form or the longer American Community Survey form,
any busybody question beyond name and address has no bearing for
apportionment. The ACS, sent out to different addresses on a monthly
basis (even though the Constitution expressly authorizes only a
single decennial census), is extraordinarily intrusive.

"But," the statists will stammer further, "Congress
says you must give all this other information." Perhaps Congress
has enacted something along those lines, but that is not to say
that that law is itself lawful. As noted, we agreed to be counted,
but that's all. If the original grant of authority from the authors
of the Constitution (the people and the states) does not allow or
authorize Congress to enact such a law, then that so-called law
is not law within the meaning of the Constitution because that purported
enactment was not authorized in the first place. The Constitution's
Supremacy Clause (Article VI) states that purported federal law
is considered authorized law only when made within the framework
of the written Constitution ("This Constitution, and
the laws of the United States which shall be made in pursuance
thereof; . . ."). Nowhere in this Constitution (a
document of limitations) is there found any authority from us enabling
Congress to ask about race, ethnicity, or household utility bills.
"But, but, . . ., the necessary and proper clause encompasses
these further census questions." Not so. The Necessary and
Proper Clause (Article I, section 8) is not an independent grant
of power standing on its own. It is at most a derivative power;
before that clause may be used as justification for a federal law,
primary authority must first be located elsewhere. As far as the
census is concerned authority is found solely in the Article I provision
noted above, and in that provision Congress is only allowed to count/enumerate
us.(*) Nothing further; demanding the disclosure of race or Hispanic
ethnicity or other information is not enumeration.

[(*) So that the forest doesn't get lost among the trees: The
authorization for the decennial counting of the American people
is found in the article defining how the House of Representatives
is to be composed. The provision is about those representatives,
not about the people themselves. Only statist-minded controllers
would take a provision defining the House of Representatives and
turn it into an opportunity to conduct third-degree inquisitions
of the country's sovereigns, the people themselves.]

Using tired excuses we will be told that government needs this
information to function. Really? The Framers didn't think so; otherwise
they would have placed that authority in the document. Further,
if Congress believes itself in need of additional information about
us, let Congress propose an amendment to the Constitution and pitch
its case to the creators of the federal government — the people
and the states — as to why further, intrusive personal information
is needed in order to apportion House representation. The Framers
were forward thinkers; they anticipated that the needs of the created
government might change, providing to this end an amendment process
(Article V).

"But, but, . . .," the statists will whine, "amending
the Constitution is such a burdensome process. It's so much easier
for us to get this information by threatening citizens with fines
and demanding it." To which we simply reply, "We the people
expected that you read, understood, and agreed with the written
Constitution before you voluntarily took your oath of office to
support the people's document. Did you cross your fingers? Is it
your intention not to honor your constitutional oath?"

Name, address and number of occupants. The only information to
be given in response to any letter or satchel-toting census bureaucrat
demanding "Your information, please." We live more freely
when all public officials obey the law. Let's begin with the Constitution.

27, 2009

Paul Galvin
[send him mail] conducts his
legal, tax and business advisory practice for businesses and tax-exempt
organizations in Springfield, Mass.

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