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Con: Expanded census is crucial to functioning of today’s government

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John C. Kunich
April 24, 2010
EDITOR’S NOTE: The writer is addressing the question, Is it unconstitutional to fine Americans for not completely filling out the census form?

So the census form is asking some arguably intrusive questions and backing them up with penalties for noncompliance? You’d think Congress had voted to install surveillance cameras in every home.


It’s naive to suppose we live in an era of limited government, neatly boxed in by the text of the Constitution. Tea parties or not, you’d have to be mad as a hatter to believe we’re governed by that quaint, narrow view of federal authority. It went out sometime during Abe Lincoln’s first term.


We live in a modern, information-age nation where the government requires access to much more detail about our people than the bare-bones head-counting minimum. And the private sector’s lifeblood is that same information, like it or not. Innumerable business people, innovators and entrepreneurs also rely on accurate, nuanced insight into their millions of potential customers.


The census is the best, and probably the only tool available to take this type of detail-rich snapshot of the extended American family. It only happens every 10 years, but that decade-by-decade influx of insight is crucial in a vast array of applications, both governmental and market-based.


This information is central to government’s ability to efficiently and effectively allocate resources. Across a broad spectrum of services and infrastructure, good planning depends on it.


A few public-sector examples are the number and size of schools at all levels, hospitals, elder-care communities, law enforcement, fire fighting, public utilities, highways, sewer systems, water treatment plants, waste management and hazardous material disposal facilities.


The federal government needs detailed, fine-tuned data to plan for health care, Medicare, Medicaid, Social Security, transportation, tax measures, energy and other important areas.


Such legitimate governmental functions require in-depth census information gathering. Decisions on current and projected growth, costs and revenues, needs of service recipients, and countless other elements of realistic planning and budgeting are dependent on information only a far-reaching, enforceable census can collect.


Because the uses and impacts of the information are so widespread, the census requirement and enforcement measures find textual constitutional support in both the Necessary and Proper Clause and the Commerce Clause.


Modern Supreme Court Commerce Clause decisions, despite some recent moderate adjustments, clearly support an aggressive approach to census data collection. The links to interstate commerce from the many types of information involved are numerous and significant.


People who haven’t been tainted by a law school education would be shocked to learn how the Supreme Court has interpreted the Commerce Clause.


Even small effects on interstate commerce have been held sufficient, in a long line of cases, to supply a federal “hook” enabling Washington to regulate the contours of our daily lives. Sometimes the legal reasoning has been creative and convoluted, stretching the Commerce Clause to authorize federal control of seemingly local activities. Nationwide laws from civil rights to consumer safety to environmental regulation were built on this.


No such constitutional gymnastics are necessary to uphold penalties for failure to answer the detailed questions on this year’s census form.


For the government to meet its myriad modern responsibilities effectively, this information is essential. Without it, federal leaders would be forced to rely on guesswork in their most important planning. The results would be a multitude of mismatches, misallocated resources, inadequate or excessive infrastructure and other forms of waste and inefficiency.


Many Americans think government is intruding too much, taxing too heavily, and generally interfering excessively in the private business of the people.


Believing that government governs best when it governs least, they want less regulation, fewer entitlements and diminished federal involvement in everything from health care to education. But until and unless the Supreme Court holds that far-reaching contemporary federal programs themselves are unconstitutional, tools like the census and its enforcement mechanism are going to be on firm legal ground. Count on it!


John C. Kunich is a professor of constitutional law and the author of seven books, including “Betting the Earth: How We Can Still Win the Biggest Gamble of All Time.” Readers may write him at Charlotte School of Law, 2145 Suttle Avenue, Charlotte, N.C. 28208.

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