Adam Serwer: A white man’s republic, if they can keep it
Most significant, Chief Justice John Roberts’s majority opinion and the partial concurrences are littered with assertions that the Trump administration was trying to “reinstate” the citizenship question. Even justices who were otherwise skeptical of the administration’s scheme and seemed to have a better grip on the historical record—Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor—referred repeatedly to “reinstatement.” That word obscures the nature of what the administration was trying to do.
Never in the 230-year history of the census has the complete-count questionnaire (or its equivalent) asked for the citizenship status of everyone in the country, as Ross proposed. When citizenship was asked at all, it was directed to small segments of the population, such as foreign-born men 21 or older (1890 to 1910) or foreign-born people (1930 to 1950), mainly to figure out how well they were assimilating into the United States. After the 1950 census, questions about citizenship or naturalization were confined to sample surveys that went to only a small percentage of households.
The Court acknowledged the change in census practice after 1950, but it mangled the details of the practice leading up to that point, incorrectly treating questions about “birthplace” and “citizenship” as equivalent and asserting that “between 1820 and 1950, the question was asked of all households.” The fact is that multiple censuses during that period had no citizenship question (1840, 1850, 1860, and 1880), and—as mentioned—those that did include one did not direct it at every person in a household. These various errors allowed the Court to ignore the ultimate conclusion it should have drawn from the history: The Trump administration’s gambit was unprecedented, not a return to form.
The majority opinion also soft-pedaled the Census Bureau’s decision to remove all citizenship and naturalization questions from the decennial census following the 1950 count. It is true, as the Court claims, that the bureau concluded that citizenship information had declined in importance to the government, researchers, and other users of census data by this time. But the bureau didn’t just get rid of questions that were unimportant—it overhauled its whole approach, because traditional practices were deficient in accomplishing the one thing the Constitution’s enumeration clause requires the government to do: count everyone in the country.
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Traditionally, the federal government tried to do two things at once with the census: count all heads and collect other useful information. By the 1950s, the Census Bureau’s social-science skills had evolved sufficiently that it could evaluate how well it was doing its job, and it found that the second ambition was impeding the first; the count was missing millions while wasting resources. So the bureau stripped out extraneous questions from the main survey, including dozens of other “demographic questions,” as the Court called them. Census Director Robert W. Burgess explained the benefits of these changes to Congress in the lead-up to the 1960 census: “For a long time, the Census Bureau has believed that enumerators were being burdened with more instructions and work than they could effectively handle, with the result that both coverage and content suffered.”