Constitutional Topic: The Census – The U.S. Constitution Online – USConstitution.net

Constitutional Topic: The Census


The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
. This Topic Page concerns the census. The Census is mentioned in Article 1, Section 2 and in passing in the 14th Amendment.

The U.S. Census Bureau has a web site at Census.gov. The data gathered in the 2000
Census is available. The 2010
Census is underway.

The 2000 census data, along with data from other sources, has been compiled
into a user-friendly web-based database by LocalCensus.com.

Sources for this page include the Constitution, the U.S. Code, the Census
Bureau website, and Gales & Seaton’s History of Debates in Congress,
available at the Library of Congress.

In Article 1, Section 2, the Constitution includes the phrase:

[An] Enumeration 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.

Congress first met in 1789, and the first national census was held in

There was actually some debate about whether, how, and on what timetable a
census should have been held. In early 1790, several members of Congress argued
against a census prior to the next election. Some in the Congress, who
advocated an immediate census, noted that those who did not want one were the
people from states which were generally regarded as being over-represented in
the Congress based on the initial figures provided for in the Constitution.
Others were concerned about the questions to be asked in the census, while
others felt that more questions should be asked to get a better picture of the

For example, on February 2, 1790, Samuel Livermore of New Hampshire lamented
that the proposed question about profession would be hard for his constituents
to answer, since some had three or four professions, depending on the season.
Connecticut Representative Theodore Sedgwick, on the same day, wondered why the
questions were not extended further — “The state of society could be
ascertained, perhaps, in some degree, by observing [the] proportions.”

The final bill, Statute 2 of March 1, 1790, provided that census marshals
and assistants be appointed. The marshals were directed to:

cause the number of the inhabitants within their respective
districts to be taken; omitting in such enumeration Indians not taxed, and
distinguishing free persons, including those bound to service for a term of
years, from all others; distinguishing also the sexes and colours of free
persons, and the free males of sixteen years and upwards from those under that

The act directed that the names of the heads of families be recorded, the
number of white males sixteen and older, the number of white males under
sixteen, the number of white females, the number of all other free persons, and
the number of slaves. Failure of an assistant marshal to make a return, or to
make a false return, was punishable by a $200 fine. Failure of a marshal to do
the same was punishable by a fine of up to $800. The questions about
profession, and other information Representative Sedgwick spoke of, were not
made part of the final census. Census day was set at the first Monday in
August, 1790. Failure to cooperate with a marshal or assistant was punishable
by a $20 fine.

Today, the controlling law for the U.S. Census is Title
13 of the U.S. Code
That law requires that the census be conducted on or
about April 1, 1980, and every ten years after that. The returns must be made
available within nine months in order to apportion members of the House of
Representatives to each of the states. In the intervening years the law
requires the Census Bureau to gather statistics about the residents of the
United States for use by Congress. The decennial census is provided for at 13
USC 141

The law states that the count done in 1980 and every ten years thereafter
shall be an actual headcount. The count done in the intervening years need not
be an actual headcount, but may use statistical sampling methods to get a
reasonable approximations of a head count.

There are fines for non-response and for false response as well, though the
amount has risen from the 1790’s $20. Today failure to respond can result in a
$100 fine; providing false answers is a more severe offense, and carries a $500
fine. Recent news reports, however, indicate that punishment for failure to
respond is not usually enforced. The controlling section of the Code is 13 USC 221.

Today, all persons are counted as whole persons — the original census
counted “other persons” (slaves) as three-fifths persons for the purposes of
apportionment. This fractionalization was removed by the 14th Amendment. The Attorney General ruled, in
1940, that there were no longer any Indians in the United States who could be
classified as “not taxed.” In the Constitution, non-taxed Indians are not

The number of questions in the decennial census has varied widely since the
first in 1790, where census takers logged the name, gender, and race or each
member of a household, to 2000, where a multi-page form with dozens of
questions was sent to one out of every six households. In 2010, the Census
Bureau trimmed the questionnaire to just the basics: name, gender, race, and
ethnicity or each person, and whether the dwelling was owned, rented, or
“occupied without payment of rent.” A more detailed list of questions, called
the American Community Survey (ACS), is sent to selected households in addition
to the shorter headcount forms and in non-decennial years to allow the Bureau
to do statistical sampling. According to the Census Bureau, about 3 million
households are selected to receive the ACS each year.

The law requires, in the case of both the decennial census and the ACS, that
all households that get a form must fill it out in its entirety, under penalty.
Generally speaking, the Census Bureau is not interested in levying the fine,
and prefers to gather the data. If a survey is not returned, the Census can
follow up by phone or with a personal visit. There is, however, the threat of a
penalty for non-response. The current penalty is $100 for failure to fill out
the census forms.

The authority of the Congress to conduct the census in whatever way it
wishes, and thus to require that the forms be filled out is found in the
Constitution itself, which notes:

[The Census] shall be made … in such Manner as [Congress]
shall by Law direct.

The Congress is also authorized to ask various questions in the census aside
from the basic headcount by virtue of this clause and by virtue of the Necessary and Proper Clause.

Advice to leave the form blank or to fail to fill it in may actually bring
more of the government into your life than you want — as noted above,
unfiled and incomplete forms will be followed-up upon by actual census workers,
either in person or by telephone.

The data in the following table was provided by the U.S. Census Bureau.