The Instigator
NotArrogantJustRight
Pro (for)
Losing
2 Points
The Contender
sherlockmethod
Con (against)
Winning
18 Points

The decennial census, as employed, is unconstitutional.

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Post Voting Period
The voting period for this debate has ended.
after 4 votes the winner is...
sherlockmethod
Voting Style: Open Point System: 7 Point
Started: 2/9/2010 Category: Politics
Updated: 7 years ago Status: Post Voting Period
Viewed: 1,970 times Debate No: 11141
Debate Rounds (3)
Comments (8)
Votes (4)

 

NotArrogantJustRight

Pro

April 1, 2010 marks the 23rd decennial census conducted by the United States government. As required by the Constitution, the first census in 1790 asked essentially two (1) questions: name of head of household and the number of persons living in the household. In the subsequent 220 years the census survey has ballooned to an excess of fifty (2) questions. The addition of nonessential questions poses a real threat to the security of all Americans. As such, all unwarranted questions should be refused.

1 - http://www.census.gov...
2 - http://www.census.gov...
sherlockmethod

Con

I thank Pro for offering this debate. As of yet, Pro has not presented an argument on the unconstitutionality of the 2010 census. He merely says additional questions are being asked; he does not say how this violates the US Constitution. The resolution is on the constitutionality of the 2010 census; I am not concerned with who answers which questions. I will provide the relevant data concerning the census:

Article 1 section 2 clause 3 of the US Constitution allows for the census. http://en.wikipedia.org...

Now, Pro asserts the first census asked "essentially" two question. I have essentially counted five. http://www2.census.gov...

I do not find any part of the US Constitution listing the number of questions allowed. On the contrary, the above mentioned Article allows wide discretion on such matters. The clause specifically states, "[I]n such Manner as they shall by Law direct. (Article 1 section 2 clause 3.)

Absent a case from Pro, I have little to contend with at this point. I will await Pro's case.
Debate Round No. 1
NotArrogantJustRight

Pro

I apologize for my short post in Round 1. I am, as of yet, unfamiliar with this site and did not get my complete thoughts written before posting.

As my opponent has said, Article I, Section 2 of the U.S. Constitution states: "The actual Enumeration shall be … every subsequent Term of ten Years, in such Manner as they shall by Law direct."

The basis for every constitutional question is whether or not a federal power or program is authorized by the Constitution. As we both have pointed out, the Constitution allows for the enumeration, or counting, of citizens "in such Manner as they shall by Law direct." The expansive and intrusive nature of the surveys, as produced today, is the product of an invasion of citizens' privacy.

> Point 1: Questions beyond the specific enumeration of the citizens is unconstitutional by breach of privacy.

The Tenth Amendment says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." That is to say, the Constitution consists of delegated, enumerated powers and thus establishes a limited government. The power of enumeration was delegated to the federal government. Asking how well you speak English, your highest level of education, where you lived five years ago, what time you leave for work, if you have a toilet with running water, or any of the other groundless questions are not among the few, enumerated powers of the federal government. (1)

> Point 2: The Tenth Amendment prohibits the federal government from utilizing powers not specifically delegated by the Constitution.

As claimed in Round 1, the census of 1790 asked "essentially" two questions: name of head of household and the number of persons living in the household. The actual questions on the survey numbered six: 1) name of head of family; 2) number of free white males of 16 years and upward; 3) number of free White males under 16 years; 4) number of free White females; 5) number of all other free persons (by sex and color); 6) number of slaves. (2) Question one could be arguably justified as a means of counting each household only once.

> Substantiating Evidence: The early census surveys did not pry into the private lives of the citizens.

13 USC 221 states: "Whoever … refuses or willfully neglects … to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey … shall be fined not more than $100. … Whoever … willfully gives any answer that is false, shall be fined not more than $500." 18 USC 3571 and 3559 effectively increase these fines to $5000 per incidence. The Fifth Amendment grants the privilege of self-incrimination. "No person … shall be compelled in any criminal case to be a witness against himself." Many would claim that no appropriate defense exists for a Fifth Amendment privilege but one need only to look back to World War II for examples.

Although the evidence does not unequivocally prove that the Census Bureau was intimately involved, there is ample evidence to grant the Fifth as well as reconsider the constitutionality of the census survey. However, it is clear that in February 1942, the Census Bureau assisted the
Army's Wartime Civil Control Administration by using the 1940 Census results to target
Japanese Americans for forced migration and internment. (3)

> Point 3: The sampling of questions pose a real security threat to Americans and are not required to answer per the Fifth Amendment.

(1) http://www.census.gov...
(2) http://www2.census.gov...
(3) After Pearl Harbor: The Proper Role of Population Data Systems in Time of War -- Seltzer and Anderson
sherlockmethod

Con

I thank Pro for his speedy response. Just to clarify, I am fine with short first round statements. I recommend using a 4 round format when offering an introduction. Just tell Con to write, "I accept". This way will allow for two solid rounds and a conclusion for both sides. I wasn't being cross. This is a great topic.

Pro offered three points.
Point 1: Pro states the lack of details after enumeration puts any questions asking more than enumeration questions within the purview of the 10th Amendment. If this is truly the case then the right of privacy is outside the scope of the Constitution also as it is not specifically mentioned in the Constitution either. One cannot claim an un-enumerated right exists and is violated by citing a clause requiring enumeration.

I fully agree that the right of privacy is not explicitly mentioned in the Constitution but I also see that the remaining questions in the form are not prohibited by lack of inclusion also. Both the right to privacy and the additional questions fall in line with the Constitution.

In support I ask voters to review the "necessary and proper" clause of the US Constitution. Article 1, section 8, clause 18. Allowing Congress to "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
The US government uses the data to help allocate the money for projects such as roads, subsidy programs, placement of unemployment assistance, etc. All fall under powers allocated to Congress. The additional questions are used for a purpose, and are not arbitrary and capricious.
Point 2:
Pro continues to employ the help of the 10th Amendment, but much like the right to privacy the census questions do fall under enumeration in the Constitution as the Constitution gives very broad powers to Congress in regard to the census. See Wisconsin v. City of New York, et al 517 U.S. 1. This matter has made the court docket and has done so since the inception of the census. The first census did more than just a head count. In 1901 The Court held in reference to Art 1, sec2, cl 3, "This does not prohibit the gathering of other statistics, if "necessary and proper." Morearity 106 F 886.

I grant the right to privacy was fully delineated in 1901, but such concerns were raised during the 2000 census and were all rejected under the 1st, 4th, and 5th Amendments. Morales v. Daley. So long as the questions go toward a governmental purpose, they can be asked. Pro offered examples.
1. Ability to speak English – this question is asked to help designate language learning centers in communities who need them most. Placing a Spanish/English center in Oneida, Tennessee would be a waste, but one in San Antonio would be better.
2. Level of Education – GED programs, work for college credits, funding for schools, etc.
3. Term of residence – statistical data related to commerce, effects of lay offs, company shut downs, and how they affect the economy.
4. Travel to work – commerce and necessary road systems, state funding for daycare services, needed levels of local traffic enforcement related to accidents to help improve travel at certain times of the day.
5. Running water – Health reasons and the allocation of state services concerning sewage and the proper placement of water treatment plants.

None of these questions are groundless. Pro's only chance is to show the questions serve no Governmental need, and so far the courts have upheld every census in history.

Point 3: I, and the courts, fully concede the census was used in an illegal manner in the past. We cannot let the past administration's illegal actions prevent us from running the country efficiently. The US Congress recognizes how data can be misused so they codified the Censes and put protections in place preventing such actions. Pro need not be concerned over criminal prosecution as the Census Bureau is prohibited from distributing specific information to other agencies, including the FBI. No 5th Amendment violation can be had as the obtained information would be "fruit of the poisonous tree" and could not be used in court. A rookie lawyer would have such a case thrown out and administrative action would be taken for all those involved. Because the evidence cannot be used for prosecution no 5th amendments rights are violated.

In conclusion, fill out your census form. If one does not then action can be taken. Michelle Bachmann was irresponsible in telling constituents to refuse to provide the data. I do not recommend violating a federal law, one we have had since the beginning of this country. Every census has asked more than the number of people in a household. The 2010 census is no different.
Debate Round No. 2
NotArrogantJustRight

Pro

CASE 1:

Con erroneously attributes my assertion "within the purview of the 10th Amendment." The cornerstone of my entire argument rests on the basis of the United States being a limited government. As the Tenth Amendment states, "The powers not delegated to the United States … are reserved … to the people." The inclusion of the Tenth Amendment was to prevent the federal government from violating those rights which were not specifically enumerated within the Constitution or Bill of Rights. Con correctly points out that privacy is not specifically mentioned in the Constitution. However, he cannot be more wrong that one "cannot claim un-enumerated rights exist" as this was the precise purpose of the Tenth Amendment as well as the theory of limited government. The Framers knew they were unable to enumerate all rights belonging to citizens but could easily delegate a limited set of "few and defined" powers to the government.

The fundamental question which needs to be considered is: Does the government have the constitutional authority to do what it is doing? The Constitution provides the answers to this question as it not only established specific powers to the government but, of equal importance, instituted limits to that power. In this case, the enumerated power in question is given in Article I, Section 2. Specifically, the power to count the number of citizens.

CLAIM 1: As written and further amended, the Constitution only enumerates the power to count citizens.

CASE 2:

Con further brings the voter's attention to the Necessary and Proper Clause for further proof that the federal government is able to run roughshod over the Constitution at will. The government's reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but simply "carries into Execution" the powers enumerated elsewhere in that section (1). The Clause first applies to "the foregoing powers," and second to "all other Powers vested by this Constitution." The "foregoing powers" apply to those in Article I, Section 8, Clauses 1-17. The "other Powers vested by this Constitution" are found within the Constitution itself because "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" (2).

Furthermore, using the survey data "to help allocate the money for projects such as roads, subsidy programs, placement of unemployment assistance, etc." is also unconstitutional. The building of roads, establishment of subsidy programs, and placement of unemployment assistance are all powers reserved to the people due to the nonexistence within the purview of enumerated powers. (Roads can be debatable.) As the Supreme Court recognized almost 150 years ago, "[n]o graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole," than the government's unconstitutional assertion of power against its own citizens (3).

CLAIM 2: The Necessary and Proper Clause grants no additional power.

CASE 3:

Con quotes the Supreme Court out of context in Wisconsin v. City of New York, saying the Constitution "gives very broad powers to Congress in regard to the census." This case determined that the Census Bureau's decision to cease utilizing a postenumeration survey – essentially a method to determine a "more accurate" population count – was not unconstitutional. The full quote reveals a different story: "In light of the Constitution's broad grant of authority to Congress, that decision need bear only a reasonable relationship to the accomplishment of an actual enumeration of the population, keeping in mind the census' constitutional purpose of apportioning congressional representation." I ask the voter to pay close attention to the final clause of this quote: "keeping in mind the census' constitutional purpose of apportioning congressional representation."

The second case is also taken out of context. Quoted fully: "This does not prohibit the gathering of other statistics, if ‘necessary and proper,' for the intelligent exercise of other powers enumerated in the constitution" (4). Again, please note that this expresses the exercise of powers enumerated elsewhere within the Constitution.

The contention of groundless questions on the short on long form surveys were ruled on by the Appellate Court and held as constitutional in Morales v. Evans. However, the courts only acknowledged that the current census law authorizes the statistical "gathering [of] supplemental, nonapportionment census information regarding population, unemployment, housing, and other matters." (5) The constitutionality of including in the decennial census questions requiring information for a nonapportionment purpose was not ruled upon. This matter will hopefully be resolved in the near future with a Supreme Court ruling on Morales v. Evans (6).

CLAIM 3: The contention of unsubstantiated questions has not been ruled on and would be a matter of first impression should the Supreme Court accept this case.

CONCLUSION:

"It's always been done that way before" is not a sufficient excuse. It doesn't make it right and ignores the plain language of Article I, Section 2. As attorney Mark Brewer quipped, "It used to be legal to have separate but equal facilities for blacks and whites, but that's not legal anymore. It used to be legal to sexually harass your secretary. It's not legal anymore. The fact that something like the census has been done a certain way for 200 years doesn't mean that it was right."

Ultimately this issue is about power. The census results affect where Congress spends money - essentially who gets how much - and that is precisely what is wrong with the census. The Census Bureau tells us they need more information so it can be used in formulating policy and programs for employment, school construction, public housing, future utility needs and more. Trouble is, for those of us who believe the Constitution actually means what it says, the federal government has no business being involved with such programs and policies. By cooperating with the Census Bureau, you are tacitly supporting the assumption that it does.

If you believe in a limited government of specific enumerated powers then you should provide only the number of persons in your household. If, however, you believe in a government of implied powers by an infinitely elastic Constitution then you should have your papers ready for the next surprise inspection.

SOURCES:
(1) M'Culloch v. Maryland
(2) Tenth Amendment
(3) Ex Parte Milligan
(4) US v. Moriarty
(5) Commerce Dept. v. U.S. House
(6) Petition for Writ of Certiorari, Morales v. Evans
sherlockmethod

Con

I thank Pro for his final round and will split my time between rebuttals and a conclusion. Pro offered new material in his final round so I am within DDO standards by replying.

Pro insists I quoted the cases relating to this issue out of context; I did no such thing. The cases make clear that the Congress has broad powers in regard to the census. The powers of the government are not unlimited though and the "necessary and proper" clause does have limits. I stated those limits as I made clear the actions, or questions in this case, cannot be arbitrary and capricious. So long as the questions relate to a government program they will be allowed.

Pro brings forth the new argument that the programs are unconstitutional themselves as they expand the government's power past Constitutional limits. This brings up an age old debate and one Hamilton and Madison had at the onset of the Constitution. This is different debate, but briefly the question was addressed in US v Butler, 56 S.Ct. 312. The Court held that the "general welfare" clause is not limited by the rights listed, but is separate, not unlimited but broader than the specific enumerations. In Butler, the court ruled Congress did indeed overstep its bounds. The "general welfare" clause is not limitless and expansion of the clause to cover expenditures has Constitutional limits. If Pro listed some of the specific programs then this discussion could go further, but he did not. In reality, this is a separate debate and one Pro may wish to respond to so I see no need to further it in this final round.

I provided a case where "non appropriation" questions were ruled upon. Moriaraty. The Court has addressed this question and did so in 1901.

Pro, in his conclusion, correctly claims the "It's always been done that way before" argument is not valid. I fully agree, but the difference here is that the census has been challenged numerous times throughout its history and every censes has questions past a head count. To date, no court has invalided this arrangement, and it has gone to the courts several times. The 1790 census took place during the lifetimes of the founders and each one has been upheld, the 2010 census will be no different. The "headcount" only has been rejected time and again. Pro must show how the new questions step outside of the previous decisions. He listed some questions, and I addressed them in full.

Conclusion;
Congress must be allowed wide discretion to fulfill its duties. The survey questions allow for Congress to exercise its powers more efficiently. The survey is "necessary and proper" as it serves a governmental purpose. If no census was taken, I can see nothing preventing Congress from enacted a law for the survey alone. The Constitution gives Congress the ability to make "necessary and proper" arraignments to help promote the general welfare. The census is a perfect opportunity to apply such a survey. The survey cannot be used for redistricting purposes as the cases Pro and I listed make clear, but outside of this, the questions are valid so long as they reflect on government programs. People, fill out the survey and the head count as both help in the administration of government and we can all agree they need all the help they can get.
Debate Round No. 3
8 comments have been posted on this debate. Showing 1 through 8 records.
Posted by sherlockmethod 7 years ago
sherlockmethod
Cody, you are correct in reference to the 9th Amendment and Griswold. Pro was basing that round off of enumerations so I saw a shot and took it. I still think Congress could enact a survey outside of the census and it fall under the "general welfare" provision coupled with "necessary and proper". Why call the survey portion a census in the first place? The courts have held incorrectly, but holding a similar position in respect to the questions through so many different make ups is fairly compelling.
Posted by NotArrogantJustRight 7 years ago
NotArrogantJustRight
Good point mattrodstrom, one only has to look as far as FDR's threat of stacking the Supreme Court unless they approved his New Deal measures as a perfect example of judicial interpretation gone awry.
Posted by mattrodstrom 7 years ago
mattrodstrom
1. Ability to speak English; 2. Level of Education; 3. Term of residence; 4. Travel to work; 5. Running water

All local concerns, not spelled out (by the constitution) to be the the business of the Feds, and thus business reserved to jurisdiction of the states and people themselves
Posted by mattrodstrom 7 years ago
mattrodstrom
Also though the Judiciary is taken to interpret the constitution, they can interpret it wrong :)

So, I don't see judicial precedent as bearing on what is "really" constitutional.
Posted by mattrodstrom 7 years ago
mattrodstrom
Agreed with Cody.

Plus the tenth alone covers it just fine, Those Powers not explicitly given, are reserved.
Posted by Cody_Franklin 7 years ago
Cody_Franklin
"If this is truly the case then the right of privacy is outside the scope of the Constitution also as it is not specifically mentioned in the Constitution either. One cannot claim an un-enumerated right exists and is violated by citing a clause requiring enumeration."

See: Amendment 9

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Ergo, the people retain rights not specifically enumerated in the Constitution, but the government does not. Additional warrant for the right to privacy comes from Griswold v. Connecticut (1965), where the right to privacy is judged as stemming from the guarantees made under the 1st, 3rd, 4th, 5th, and 9th Amendments.
Posted by Koopin 7 years ago
Koopin
I wish that feature was taken off the site.
Posted by Koopin 7 years ago
Koopin
You cannot accept this challenge because you do not match the Instigator's age and/or rank criteria.
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