(Congress Will Obey the Constitution When the People Demand It)
by Paul Galvin
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. LewRockwell.com 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 ‘in 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.
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