The Cornerstone of Our Democracy: The Census Clause and the Constitutional Obligation to Count All Persons

The Census is a cornerstone of our democracy. The federal government has a constitutional obligation to count all persons, both citizens and non-citizens alike, in the decennial census. The Trump administration, however, is threatening to undermine the fairness and accuracy of the 2020 census by including a citizenship question. Mandating such a question would be an end-run around the Constitution and cannot be squared with the government’s constitutional obligation to ensure a national count of all persons, regardless of where they are from or their immigration status.

Summary

More than two centuries ago, our Constitution’s Founders established a democracy premised on the idea that all persons—no matter where they are from, regardless of whether they can vote—deserve equal representation in our government. To ensure a proper count of the nation’s population and apportion representatives, the Constitution explicitly requires an “actual Enumeration” of the people. By requiring an “actual Enumeration,” the Constitution’s text imposes a clear duty on the federal government: it must count all people living in the United States, whether they are citizens or non-citizens, whether they were born in the United States or in a distant part of the world. This was a critical part of the Framers’ insurance policy against partisan efforts to manipulate the ground rules of our democratic system of government.

Of course, as it stood at the end of the 18th century, the Constitution’s promise of equal representation for all persons was grievously undermined by the Three-Fifths Clause, which provided that, for the purpose of determining representation in Congress, enslaved persons would be counted as three-fifths of a person. Following a bloody Civil War fought over slavery, the Fourteenth Amendment fixed this shameful injustice in the text of our charter and reaffirmed the need for an accurate count of all persons to apportion representatives among the states.

As these provisions of the Constitution reflect, the Census is a cornerstone of our democracy. Census data is used to apportion representatives in Congress; determine how many votes each state will have in the Electoral College; draw state, local, and congressional districts; and allocate billions of dollars of federal funds to local communities. Far from simply a computational error, failing to count all persons in the United States—as our Constitution requires—would be enormously damaging. It would undermine our democracy and shortchange undercounted communities, leaving them without the federal funds they need for infrastructure, schools, and other vital services. The Census occurs only once every ten years, and there are no do-overs. Thus, our nation would suffer the consequences of an unfair, inaccurate count for at least the next ten years, and possibly much longer. The repercussions of an unfair, inaccurate count are immense.

Despite the important role the Census plays in our constitutional order, President Donald Trump’s administration is threatening to undermine the fairness and accuracy of the 2020 decennial census. On December 12, 2017, the Department of Justice urged the Department of Commerce to add a new, untested question to the census, asking all persons residing in the United States to divulge their citizenship status. This new question, if it becomes a part of the 2020 Census, will deter participation by immigrants across the country, who do not want an official record of their immigration status and fear that their responses will be used by the government to harm them and their families. To add a citizenship question runs directly counter to the constitutional duty on the Census Bureau to ensure a count that includes everyone, regardless of citizenship status.