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Akron Law Café

Legal Authority behind the Census OR...

By Lynn Published: March 19, 2010

...Why the government can conduct the Census

Arguments against answering the census questions are everywhere...the web, talk radio, maybe even people you know.  Claims that the census is unconstitutional, the questions are illegal, or that the federal government is subverting the Constitution.  Is this crazy talk?

United States Constitution

First and foremost, the census is required by Article 1, Section 2 of the Constitution of the United States of America.  

"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."

National Archives text and scanned image of the 1787 Constitution of the United States  (ratified in July 1788).


Before there was a Constitution there were the Federalist Papers

The Constitution was drafted in 1787 during a Federal Convention.  The Federalist Papers were a series of articles published following the Federal Convention.  The purpose was to encourage ratification of the new Constitution.  Alexander Hamilton, James Madison and John Jay wrote the essays under the pseudonym of 'Publius.' Scholars study the Federalist Papers to help understand the original intent behind the first Constitution.  The need for a census was discussed twice in the Federalist Papers.

'Within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. It will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred.'

Source: The Federalist No. 55, The Total Number of the House of Representatives, From the New York Packet. Friday, February 15, 1788.

This next Federalist article discusses using the population count to determine the number of representatives (for the House of Representatives) and to determine taxes.

'In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the States, it is of great importance that the States should feel as little bias as possible, to swell or to reduce the amount of their numbers. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality.'

Source: The Federalist No. 54, The Apportionment of Members Among the States, From the New York Packet. Tuesday, February 12, 1788.

A nicer version of the Federalist Papers is here in HTML.  Project Gutenberg Federalist papers original scan to text here and the text of the papers are here.  The Library of Congress version is here.

More on the apportionment issue is found here.


Statutes- " such Manner as they shall by Law direct."

Those who only look to the United States Constitution for information about the Census are forgetting something.  The Constitution does not directly authorize the- who, what, when or how-  details for conducting a federal census.  Every ten years authorization legislation had to be enacted laying out the instructions to the census takers and the required data to be collected.  This legislation also authorized appropriations to cover the cost of the census. The details come from the statutes.  Early census authorization legislation from 1789 to 1820 can be found here.

For a good legal history of the United States Census from 1776, starting on page 29 of The Garfield Report to Congress from the Committee on the Ninth Census, published in 1870.

Some Interesting Facts About the Census
First Census- 1790

'For the nation's first census 650 federal marshals go house-to-house unannounced, writing down the name of the head of the household and counting the other residents. The census costs $45,000, takes 18 months and counts 3.9 million people.'  Source.

Even the first census asked more than just numbers of persons.  Names of Heads of Families was part of the census and lists the name of each head of household and the number of persons in the household.  Here are the scanned images for the first census of 1790 with the names listed.   

Was it accurate?

It seems that accuracy was a problem back in 1790 as it is today.  'Both George Washington and Thomas Jefferson expressed skepticism over the final count, expecting a number that exceeded the 3.9 million inhabitants counted in the census.'  Source: here and here.  

What about Ohio?

The First Census conducted in 1790 only included 15 states and territories.  The Census for Ohio was first conducted in 1800.  Estimated population in Ohio in 1800 was 45,000, 1.1 person per square mile of land. 


Why did the census expand to include so many questions?

It started out just tallying total population counts for determining the number of representatives and taxes, but with every census more questions were added on a variety of topics.  This is what some people take issue with today.  Why is the government so nosey? 

In 1800 (ten years after the first census of 1790), two 'learned societies' petitioned Congress to use the census to collect facts highly important to society with regards to prosperity and progress of the country.  These scientific societies suggested that to determine the effect of soil and climate on the life span of the inhabitants, the census should collect vital statistics (duration of life), more detailed age interval data, occupations, emigration, and immigration.   All this was for the interest of science and to help this 'young and flourishing republic to become acquainted with its own natural history.'  These suggestions were not implemented for the 1800 census but did get put in place for the 1810 census.   Source.

 'Expansion of the census began in 1810, when enumerators also asked questions related to the industrial pursuits of the nation's inhabitants. In 1850, the census began collecting "social statistics" (information about taxes, education, crime, illiteracy, and value of estate, etc.) and mortality data.  Also, the name of every person in the household was recorded.  Subsequent censuses gathered more detailed data on race and ancestry, health, housing, and transportation.'  Statistics were collected through the years for mining, farming, industry, housing, railroads, and much more as our country grew.   Source.

Go here for a list of questions asked for each census.

What did the government do with all this information?

The data collected and tabulated has proved invaluable for anyone needing statistics.  The Heads of Households and names listed in the census is used extensively by those tracing their family tree.

The early census publications began with a report either in the introduction to the census or separate section called 'Progress of the Nation.'  These reports summarized the results of the census compared to the previous census and would focus on what was important to our new nation during that period of rapid growth and development.   

The early census reports looked at population density, education, and the territorial extent of the United States.    

1860 Census introductory report focused on dwellings, the number of dwellings, the size of the dwellings and the number of people per dwelling.  Why was this looked at in the 1860 census? Here is what the report said, 'It has been truly observed that the general prosperity and social relations of a people are very differently affected by narrow and crowded homes, or by spacious and convenient residences.'

1870 Census report focused on how the emancipation affected representative population and the resulting apportionment of Representatives in Congress. No longer will two-fifths of the slaves be excluded from the representative population.  'The joint result of the changes in the constitutional population of the several States, and the emancipation of the slave population in the fifteen Southern States, is to increase the representative population of the Union to 38,115,641 being a gain of 28.99 percent.'  The population table for the ninth census was labeled 'Table of True Population' acknowledging the addition of the emancipated people.

1880 Progress of the Nation Census report covers from 1790 to 1880.  In ten year increments, it looks at population density changes, industry development, mining, farming, and includes maps.  It is interesting to read about 'belts of settlements,' the effects of the railroads, and the ever moving 'frontier line.' 

1890 Progress of the Nation focused on immigration, the excess of males to females phenomena of that time, school attendance, illiteracy, the ability to speak English, and for the first time, veterans (of the Civil War) were separately counted.  

From 1900 until today, the introductory materials were more typical summaries and not very unique. For the remaining Census Reports go here.

More about the history of the Census is found here.



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