Who Has the Right to a Census Count of Citizens? What Is That Right?
By Michael L. Rosin
On July 11 Donald Trump told the nation “We will defend the right of the American people to know the full facts about the population size of citizens and non-citizens in America.” Later on in the speech he said “The Supreme Court ultimately affirmed our right to ask the citizenship question.”
Whose right is that and what is that right?
To begin with it is not the government’s right as Trump suggested in his second pronouncement quoted above. The government has no rights. It has powers, as Jefferson explained in the Declaration of Independence.
“Governments … deriv[e] their just powers from the consent of the governed.”
Nor do any government officials have a right “to know the full facts about the population size of citizens and non-citizens in America.” Donald Trump and Wilbur Ross possess no more rights than I do. President Trump and Secretary of Commerce Ross possess great powers by virtue of the offices they hold and the Court’s Citizenship Question case can be understood as deciding that by violating the Administrative Procedures Act Secretary Ross had not received the consent of the governed to exercise his power to place the citizenship question on the census form.
If the right “to know the full facts about the population size of citizens and non-citizens in America” does not belong to the government or any of its officials then it must be possessed by persons individually and/or in some aggregate form.
The Ninth Amendment recognizes that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Nevertheless, I find it hard to construe any form of such a right to know the citizen/non-citizen count as an individual personal right on par with the right to free speech or the right to bear arms.
The right involved here is the right of the people of each state to a constitutional apportionment of the House of Representatives, both among the states and within each state.
In So You Want to Enforce Section 2 of the Fourteenth Amendment? I argued that three pieces of data are needed to determine the constitutional apportionment basis for each state:
- the total number of persons in the state,
- the number of adult citizens in the state, and
- the number of adult citizens in the state whose voting rights have been denied or abridged.
I also argued that (3) has value without (2) but (2) has no value without (3).
In What Role Can Citizenship Data Play in the Apportionment of the U.S. House of Representatives? I argued that citizen count can be used as a second variable to be equalized when drawing House districts in a state but they must first be drawn so that they have an equal number of persons.
There is a right to know how many adult citizens and non-citizens there are in each state. It is coupled with but subordinate to the right to know how many adult citizens there are in each state whose voting rights have been denied or abridged. Both are subsidiary to the right to a constitutional apportionment of the House of Representatives among the states.
These are rights possessed by the people of each state. Not just the citizens of each state, but everyone represented in the House of Representatives, namely all the people of each state.
Michael L. Rosin is a guest contributor and a constitutional historian. He is the author of amicus briefs in Equal Citizens’ Equal Electors litigation in Colorado and Washington. He can be reached at email@example.com.