During questioning by Senator Al Franken (what a pleasure to finally write those words!), Judge Sonya Sotomayor noted that the U.S. Constitution is a mixture of broad principles ("due process," "free speech," etc.) and specific commands.
While broad principles allow room for adaptation and interpretation, the specific instructions are meant to be followed. For instance, she said, the Constitution states that an individual must be at least 30 years old in order to serve in the United States Senate. There's not a lot of wiggle room in that provision.
Another example is contained in Article I, Section 2 of the Constitution (and the 14th Amendment), which states that the members of the United States House of Representatives shall be apportioned among the various states "according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." "The actual Enumeration," the Constitution says, "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."
The use of the word "shall" is a pretty clear tip-off that the Framers meant what they said; the nation is required to conduct a head count each decade, and Congress is given the discretion to determine how the Census should be conducted. Initially, under the direction of Secretary of State Thomas Jefferson, Census takers limited themselves to just six questions, all of which were designed to count various categories of people in a given household. Over the succeeding decades, however, Congress expanded the Census beyond a raw headcount by adding questions designed to collect a wide range of information necessary for creating and implementing public policy. The specific questions varied from decade to decade, but popular topics included levels of education, employment, property ownership, types of illness, national origin, and so on.
Not surprisingly, as the information collected by the Census expanded beyond mere enumeration, a tension arose between civic duty and personal privacy. In 1850, for instance, when Census takers began collecting information about individuals by name, the practice of posting Census results in public locations was stopped. By the time the 10th Census rolled around in 1880, Congress was sufficiently worried about non-compliance that it established a $100 fine for individuals who refused to answer a census taker's questions (the same fine still applies today). At the same time, it also created a $500 fine for census takers who disclosed an individual's private information without authorization. In addition, individual census responses are sealed for a period of 70 years; only the aggregate data is reported to Congress and the public.
Despite Congress's clear constitutional obligation to conduct a decennial census and its equally clear authority to determine how the Census will be conducted, there are still those who bridle at anything more than a nose count. In the field, those individuals are troublesome enough, but every now and then, one gets elected Congress, where they have the potential to make real mischief. In 1938, for instance, Charles William Tobey was elected to the U.S. Senate from New Hampshire; a staunch Republican and committed foe of Franklin Delano Roosevelt, Tobey became one of the most outspoken critics of the 1940 Census. Among other things, he claimed that the Roosevelt administration planned to use politically-appointed census takers to skew the results in favor of Democratic strongholds. Tobey loudly announced that he would boycott the Census and actively urged others to do so, a stance that earned him strong criticism from Democrats and Republicans alike.
Seventy years later, Rep. Michelle Bachmann, a Republican from Minnesota's 6th Congressional District, is channeling the spirit of the dispeptic Tobey. Bachmann is a darling of the religious right; her successful run in 2006 was aided by a Generation Joshua Student Action Team, one of a cadre of evangelical high school groups sent around the country to aid the election efforts of "strong pro-life, pro-family candidates." In 2008, however, Bachmann nearly lost her re-election bid, in no small part because of the controversy caused by her suggestion that members of Congress (and then-presidential candidate Barack Obama) should be investigated to determine their anti-American bias.
Like Tobey, Bachmann worries that the 2010 Census takers will be tools of a Democratic administration; in fact, she specifically alleges (erroneously) that much of the count will be conducted by ACORN, a community organizating group that has been widely criticized by Republicans for its voter registration efforts. She also said that the 2010 Census is asking for intensely private information that could be misused by the government (as happened, for instance, during World War II when Census data was used to aid in the internment of Japanese-Americans). As a result, Bachmann said, she will only answer Census questions about how many people are in her household.
Recognizing the dubious legal ground on which she is standing (even her fellow Republicans on the House Census Oversight Committee have asked her to back off her refusal to cooperate with the Census), Bachmann and Rep. Tim Poe (R-Tex.) have introduced a bill called The American Community Survey Act. Under the terms of the bill, the Census Bureau would be limited to asking Americans just four questions: "a) name; b) contact info; c) date of response; d) number of people living or staying at the same address." It is highly unlikely that the American Community Survey Act will see the light of day. Nonetheless, Bachmann's high-profile protest against the Census is representative of two deeply disturbing trends in the Republican party: an increasingly fervent anti-intellectualism, and a growing disregard for the rule of law.
When the Republicans began wandering in the wilderness following Nixon's crushingly narrow loss to Kennedy in 1960 and Goldwater's simply crushing defeat in 1964, they turned to the intellectual wing of the party for renewal. In a remarkably short time, those solons (aided by the nation's social upheaval) set the stage for a remarkable resurgence of conservatism. Compared to the disarray of the Carter administration, Reagan's cheerful espousal of a relatively coherent political philosophy was enormously compelling. By the time he became president, Reagan was more a spokesperson for a movement than an intellectual leader, but he was well-grounded in the intellectual underpinnings of conservatism and particularly in the years following Goldwater's defeat, played a significant role in the movement's development.
But in one of the great political miscalculations of the last century, Republicans interpreted Reagan's election as an endorsement of what can best be described as the Nuke Laloosh theory of political leadership: "Don't think. You can only hurt the team." Exhibit A, of course, is the notoriously incurious George W. Bush, who boasted of how he kept himself in a bubble during his presidency. Exhibit B is the soon-to-be-forgotten former governor of Alaska, Sarah Palin, who might have been one 72-year-old heartbeat from the presidency if she had been able to tell Katie Couric the name of one newspaper she regularly reads (online or off). Tragically, the party of Richard Weaver, Russell Kirk, William F. Buckley, and Barry Goldwater has so elevated vacuity as a positive value that it has marginalized, perhaps indefinitely, anyone who might try to rebuild the intellectual foundations of the conservative movement.
Even more troubling is Bachmann's suggestion that people disobey the law and refuse to cooperate with the Census. It is yet another example of how the Republicans, once the party of law and order, have increasingly been taken over by a faction that will use any means necessary to promote their goals. The shamefully-muted responses to the slaying of abortion doctors and the hysterical calls for violence and disobedience of court orders in the Terry Schiavo case are particularly reprehensible examples of this disturbing trend. It is not uncommon, sadly, for fringe and not-so-fringe Republicans like Catherine Crabill to talk openly of resorting to the "bullet box" if they don't get their way at the ballot box.
Having just finished writing a new book, American Privacy, I am deeply sensitive to the possible misuse of personal information, and both governments and corporations need to do a far better job of protecting the information they collect. At the same time, however, I am a fairly big fan of the Enlightenment. I believe that rational inquiry is an essential element of modern life and that aggregated data, if properly collected, compiled, and used, can play a critical role in the formation of government policy. Since Representative Bachmann has undoubtedly benefited from the fruits of previous Censuses (not least of which, her artfully drawn district that so carefully avoids the Keillor-infested, latte-sipping neighborhoods of Minneapolis and St. Paul), she should pitch in and do her bit to promote intellectual inquiry and respect for the rule of law.