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The Federal Leviathan is Counting on You

by David Kopel

This is an edited version of Mr. Kopel's original essay that recently appeared in the Colorado Springs Gazette, for which he is a columnist.

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What's the most politically correct thing you can do this week? As usual, the answer to this question can be found in the Boulder Daily Camera: you must fill out your census form promptly, and make sure to answer each and every question. Not only did the Camera devote one of its longest editorials ever to census correctness, the Camera even ran a parallel editorial in Spanish, repeating the census plea. Since the Camera normally publishes only in English (how insensitive of them!) it's doubtful that the Spanish editorial did much good; Boulderites who can't read English do not usually buy a copy of the Boulder Daily Camera just in case the Editorial Page might contain something written in Spanish.

Despite the futility of the Spanish editorial, the Daily Camera's civic earnestness is admirable, but misplaced. Instead of worrying that some people won't fill out the census form, perhaps we ought to be worrying about the kind of information that the federal government is collecting about us.

In order to apportion members of the U.S. House of Representatives, Congress is required by the Constitution to conduct an "actual Enumeration" of the population every ten years. This constitutional requirement could be fulfilled with a census form consisting of one question: "How many people live in your home?"

Unfortunately, the millennium census forms, both the long and the short version, go much further, and ask for information that government should never have.

American history shows that when the government starts asking about your race, it's time to get concerned. Because the U.S. and Colorado Constitutions both require government to give each person the "equal protection" of the laws, it's difficult to see what good can come from government finding out about race. The Census Bureau claims that racial data is necessary to enforce the Voting Rights Act, but Colorado has no history drawing legislative boundaries on the basis of race. And besides, the best way to keep politicians from drawing election districts on the basis of race is not to let the politicians have racial data in the first place.

Back in 1940, American citizens of Japanese ancestry dutifully supplied their race and national origin on the census forms. In 1942, after Pearl Harbor, the government decided to start putting American citizens of Japanese descent, who lived on the West Coast, into concentration camps. (Colorado Governor Ralph Carr allowed many Japanese-Americans to move to Colorado instead of going to President Roosevelt's internment camps.) The 1940 census data was used to find out which neighborhoods in California, Oregon, and Washington had a high percentage of Japanese-Americans, so that federal agents would know where to go to round up people.

Back in 1917, census information was used for another type of round-up: to ferret out the young men who did not register for the World War One draft.

There are plenty of Census Bureau employees who take the confidentiality promise seriously. In Colorado Springs in 1980, for example, an outstanding civil servant held off FBI agents who showed up with a subpoena and demanded to look at census records. But there's no guarantee that every census employee will be so dedicated, or that other governments will always lose in their struggles to get their hands on census information.

Even without the confidentiality problems, all of the nosy questions on the census form are still dubious. As the census form explains, the census data is used to dole out 180 billion dollars a year "for highways, schools, health facilities and many other programs." None of these federal spending programs are authorized by the U.S. Constitution, which gives Congress power only over certain specific subjects (armies, bankruptcy, interstate commerce, etc.) rather than everything in the world (such as education, transportation, and health).

In a single day last week, over 300,000 people called the Census Bureau and Congress to complain about the intrusive questions, involving everything from mortgages to commuting to languages spoken in the home to the number of toilets to whether grandparents take care of the children.

Yet as the Census Bureau points out, all of these questions do have some kind of connection to an existing federal spending or regulatory program. Perhaps Americans should recognize that if they want to keep their privacy, they should ask the federal government to do only the things that the Constitution allows.