The Constitution and the Census
Are Statistical Methods Allowed?
As Congress continues to consider the Census Bureau's plans to use modern technology and statistical
methods in the 2000 census, the constitutionality of these methods often becomes a key point of debate. It
is important to note that the recent Supreme Court ruling, on the use of statistical methods in conducting
the census, was decided on the statute and did not reach the question of sampling's constitutionality. While
this dispute is more over political advantage than constitutional language, the argument that any method of
taking the census other than a household-by-household count is unconstitutional needs to be addressed.
Opponents of statistical methods contend that the words "actual enumeration" in Article I, section 2, of the
Constitution require a physical headcount of the population. The weight of legal opinion, however,
supports the Census Bureau's conclusion that the Constitution permits the use of statistical methods to
improve the accuracy of a good-faith effort to count people directly.
- The second sentence of Article I, Section 2 of the Constitution is: "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 clear purpose of this sentence is to require that a census be taken promptly and regularly, not
to explain how to conduct an "actual Enumeration." Further, it clearly suggests that the Framers
did not contemplate any particular census methodology in calling for an "actual enumeration," but
instead left that determination to the Congress. The words "actual Enumeration" were used to
distinguish an apportionment based on a census, from the process of conjecture and political
compromise used for the initial apportionment that preceded the first census.
- Separate opinions issued by the Department of Justice under Presidents Carter, Bush and Clinton
all concluded that the Constitution permits the use of statistical methods as part of the census.
- Stuart M. Gerson, Assistant Attorney General, Civil Division, in the Bush Administration,
concluded in a July 1991 memorandum to the Commerce Department's General Counsel that the
origin of the term "enumeration" in the Constitution "is more likely found in the accuracy of census
taking rather than in the selection of any particular method." "Nothing...indicates any additional
intent on the part of the Framers to restrict for all time...the manner in which the census is
conducted," Gerson wrote.
- Opponents of modern statistical methods have expressed concern that they are subject to political
manipulation. However, in the memorandum cited above, Stuart Gerson noted that a headcount
also "might be subject to political manipulation in the form of a congressional refusal to
appropriate sufficient funds [for census programs aimed at reducing the undercount of
minorities]...or by an overly restrictive local review procedure."
- While the recent Supreme Court decision on sampling did not reach the Constitutional issue (i.e.,
whether sampling for congressional apportionment is permitted under the Constitution), four
Justices, in a concurring opinion, suggested that sampling may be unconstitutional. Four other
Justices, in a dissenting opinion, expressed their view that sampling is constitutional, and one
Justice (O'Conner) expressed no opinion on the issue of constitutionality.
- However, in 1996 the same nine Justices held in a unanimous decision that the Constitution grants
Congress "virtually unlimited discretion" in how to conduct the census, clearly suggesting that the
Constitution itself does not contemplate one method over another.