Furor Over The Citizenship Question On The Latest Census Is Ignorant Fearmongering

Furor Over The Citizenship Question On The Latest Census Is Ignorant Fearmongering

If asking about citizenship is illegal, every census since 1890 has been a crime.
Kyle Sammin
By

The Commerce Department announced Monday that the 2020 Census will include a question about whether the people being counted are citizens. This seemingly uncontroversial inquiry has sent many activists on the Left into a tailspin as they prophesy discrimination against immigrants, especially those who immigrated here illegally. California announced the state would sue to stop the change.

Everyone should take a deep breath and relax. Questions about citizenship and national origin have been a part of the United States Census for more than a century without any negative effects on the non-citizens it surveys. Of all the questions the government asks on the census, this one — which merely confirms information the government already has or should have — is the least problematic, and is completely in line with the Census Bureau’s historical practices.

It’s Not A New Question

The Constitution requires the federal government to take a census every ten years, but it does not require them to collect very much information. The grant of power is specific, but also contains a degree of flexibility: “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.”

For the first five censuses, the government stuck very narrowly to this remit. From 1790 to 1840, they listed only the name of the head of the household and the number of people living there. These numbers were divided by age group, sex, race, and (because of the Constitution’s three-fifths clause) condition of servitude. The slavery question was the only one strictly necessary, since the apportionment of representatives did not vary based on the sex or age ratios within a given congressional district.

In 1850, the census recorded the name of each free person for the first time (slaves were never listed by name). It also asked a person’s birthplace, occupation, how much land they owned, and whether the person was “deaf and dumb, blind, insane, idiotic, pauper, or convict.” The 1860 census was substantially the same. Subsequent years saw more detailed census forms. In 1870 and 1880, questions of parentage were expanded as the form requested to know whether each person’s father or mother was foreign-born and whether respondents could read and write.

In 1890, the census asked about citizenship for the first time, inquiring whether people were foreign-born and, if so, how long they had lived here, whether they had been naturalized, and whether they spoke English. The next census in 1900 (a page of which is pictured below) expanded on the question, asking foreign-born respondents the precise year they emigrated. Later, for genealogists, this would often become a key piece of information in determining when their ancestors arrived in this country.

This elicited little controversy if any. Questions of citizenship status were also included in 1910, 1920, 1930, 1940, and 1950. The 1960 census asked about foreign birth and foreign-born parents, but not citizenship. In 1970, a citizenship question returned to the census, but only for the five percent of respondents who were given one of the long-form census questionnaires. That pattern held for 1980, 1990, and 2000 (pictured below), with varying numbers of people receiving the long-form census. In the most recent year, 2010, everyone received only the short form, with the American Community Survey (ACS) replacing the long form and being sent to over 3 million people on an annual, not decennial, basis.

Beyond Actual Enumeration

Since 1850, the census has asked where people were born and since 1890 it has asked some or all of them whether they were citizens. The question appeared at a time when far more people were openly opposed to immigration and many harbored seriously nativist sentiments. Nonetheless, the information gathered was never used against immigrants and their families. It served only as a method of informing the government of the population’s demographics.

State attorneys general spend more of their time making political statements than practicing law, but even by the low standards of that office, California Attorney General Xavier Becerra’s suit lacks merit and basic logic. The suit (found here) begins with a non sequitur, stating that the Constitution requires an actual enumeration and that “all persons — citizens and non-citizens alike — must be counted” to fulfill this mandate. That is undoubtedly true, but it is also exactly what the administration proposes to do. No one has suggested that non-citizens not be counted.

Becerra and other opponents of the change suggest that merely asking the question would “directly impede” the collection of information and would violate the privacy of the respondents. This is a craven and predictable change of opinion about the questions the census may ask. For decades, the Left has pushed for bigger and more intrusive questions on the census and the Right has opposed the invasion of privacy. Now that the Trump administration backs the gathering of more information, however, everyone on the Left temporarily becomes a strict constructionist.

Comparing this disagreement to the last public clash on census questions makes Becerra’s objection even more absurd. In 2017, the National LGBTQ Taskforce demanded that the next census and ACS include questions about American’s sexual preferences. In that case, asking probing questions about a personal matter was said to be a benefit to gay, lesbian, and bisexual Americans, and to not ask them who they preferred to sleep with was said to be “yet another step to deny LGBTQ people freedom, justice, and equity.”

The difference between that case and this one is in the nature of the subject of the question. Most people would agree that sexuality is something that is beyond a person’s control, an immutable characteristic of the individual. In this, it is more like race and religion, a thing that people encounter prejudice because of, and something that is not any of the government’s business. For that reason, I wrote last year that the government should not ask whether people are gay, and should probably stop asking what race they are, too (census questions about religion are already illegal).

Citizenship is different. For one thing, it matters legally in ways that other personal characteristics do not; for example, only citizens have the right to vote. As the Commerce Department memo says, having data on citizenship that is tied to geography can help the Justice Department better enforce the Voting Rights Act.

More importantly, citizenship is not an immutable characteristic about which the government should not concern itself. Instead, it is a status created by governments. When you are born, you have a certain race and gender regardless of what the state has to say about it. Citizenship, on the other hand, is something created by laws. You may be a natural-born citizen, but that is not something inherent in your genome, it is the effect of the laws of this country. It is something the government has every right to know about and touches on immigration, control of which the Constitution explicitly grants to the federal government. The government would not gain new information by this, just a better understanding of the status that it confers on most of the people living in the United States.

In Such Manner As They Shall By Law Direct

Even ignoring the switch in opinion, the idea that California or any state has a say in how the census is conducted is absurd. It has been long established that the census may contain questions other than just the number of people in a household. Even the bare-bones censuses of the early republic asked for information — age, sex, and race — that was not needed to fulfill the constitutional mandate of an actual enumeration. States used to conduct their own censuses at times, and if California wished to revive that custom they would certainly be free to ask or not ask about citizenship as they saw fit.

The Constitution requires enumeration but leaves up to Congress the manner in which it is done. Congress over the years has empowered the Census Bureau to use different methods of collecting information and has always allowed unnecessary questions. Becerra might not believe the Commerce Department’s claim that citizenship information will aid in voting rights enforcement, but that decision is not one the states have any say in. Census-taking is a federal responsibility and always has been.

It is good that the Left is discovering that the Constitution limits the federal government, but it is hard to make that argument about powers that are specifically granted to Congress. If invasive, off-topic questions reduce response rates, then we have been reducing them since 1790. Even the pared-down short form in 2000 was longer than any used in the first fifty years, and the long forms issued since 1940 ask far, far more questions than the one that is currently inspiring activists’ ire. If asking about citizenship is illegal, every census since 1890 has been a crime.

That is too ridiculous to contemplate and California’s lawsuit is not a true objection to the constitutionality of the proposed question. It is, like many lawsuits, the continuation of politics by other means. Prolonged derangement about Trump’s election to the presidency drives people to endorse positions they once derided and vice versa. When the Census Bureau declines to ask for private information, it’s deemed an offense against civil rights. When they plan to ask for information that actually is the government’s business, they are slandered with the same smear.

The only thing these lawsuits prove is that political tribalism has once again trumped good judgement.

Kyle Sammin is a lawyer and writer from Pennsylvania. Read some of his other writing at kylesammin.com, or follow him on Twitter @KyleSammin.

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