The Census Case

May 7, 2019

Too much is happening in this world, but the census deserves discussion because it affects how we handle everything. New York Solicitor General Barbara Underwood argued in the U.S. Supreme Court that the coming census will undercount the population and do significant damage to the people of New York and elsewhere.

I sued the Census Bureau over the 1970 census and lost. So few people had sued the Bureau, that loss made me an expert. A town in Indiana gave me a first-class plane ticket to help them at trial on the same issue. Who else were they going to get?

In court, on the case I had brought, the federal judge told me I’d have to have an overwhelming case to get relief against the Census Bureau. The Justice Department Attorney in Washington, D.C., responded, under his breath, that indeed I did. I was a bit more humble.

The problem was that we were attempting to predict the effect of the Bureau’s shift from exclusive reliance on an army of census takers knocking on doors to a mailed census form for people to fill in. Although I was suing in Washington, I was working for the St. Louis Legal Aid Society. We were convinced the changes would undercount our clients, so that many of the programs they relied on would be underfunded. As Chief Justice Burger explained in another case, a public education was largely unavailable to many of our clients. Without that, the census form would be difficult to fill in, if they filled it in at all.

The Census Bureau had studied the issue, and without getting into the weeds, I knew the studies they relied on, and the strengths and weaknesses of those studies. By the time they got me to the trial in Indiana, I realized the Indiana team did not have a witness that could deal with the issue.

This time the Bureau is asking people to file their census forms online. And they are asking about citizenship. The citizenship issue runs into the words of the Constitution. Article I, section 2, written in 1787, says the people should be counted “according to their respective Numbers.” It doesn’t refer to citizens or residents. Just Numbers. The reason of course was slavery. Slaves weren’t treated as citizens. But white southerners wanted the value of their votes increased by what the Constitution called “three fifths of all other persons,” i.e., slaves. Slaves had to be counted. So, the language and the original meaning are clear that everybody, citizen and noncitizen alike had to be counted.

In this case, the Bureau opposed adding a citizenship question because it would degrade the accuracy of the population count. Their view was based on a number of studies. But Secretary Ross overruled the Bureau without the benefit of any research and in the teeth of the experts’ views.

Regardless, several conservative judges argued that what the Secretary wanted to do was common sense. Science, statistics, data, who needs it? They treated science as if it just obfuscates reality much like those people who deny the science behind climate change, or the medical science behind vaccinations, or the biology behind changes in species over time. Science is taking a beating, but we will bear the pain. And since the census is about the health of American democracy, self-government will take the licking.

Population trends don’t favor the candidates preferred by five members of the Supreme Court so they’d rather throw the lawsuits out than allow the census to reflect the changes. Chief Justice Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” just dedicated judges. Don’t hold your breath.

— This commentary was broadcast on WAMC Northeast Report, April 30, 2019.

 

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Let’s take the Constitution back – from the deniers

January 22, 2016

Republicans repeat over and over that they want to take back the Constitution. That’s nonsense. Actually they are trying to destroy it. It’s important to understand where it comes from. After the Civil War, generations of Southern writers tried to win the peace after losing the War. They succeeded. There is no chance that you were not brought up familiar with elements of it.

In history, that’s called the Dunning thesis.[1] It refers to the claim that, after the Civil War, radical Republicans acted out of spite and revenge rather than out of deeply seated conviction. Historians discredited that thesis a century ago but it kept coming up in the textbooks as if no one bothered reading the historians who discredited it. In fact the Republican leadership who wrote the Fourteenth Amendment were totally committed to the ideal of equality. Thaddeus Stevens, a Republican leader in Congress, told the House he dreamed of the day when “no distinction would be tolerated in this purified republic but what arose from merit and conduct.” The Republican leadership knew and respected African-Americans and former slaves, employed them in responsible positions, welcomed them as friends and in some cases lived with them.

I have to deal with the fallout in law all the time. From the beginning of our country, Southern slaveholders tried to convince Congress and the people that the Constitution had granted Congress little or no power over the states and the country.[2] The courts repeated that formula endlessly, citing the writings of various Founders to prove their point. They are cherry-picking the data. The Convention that wrote the Constitution was dominated by nationalists; the states-righters stayed home. They wrote a powerful document. In the debates over ratification, however, both sides confused the issue. Proponents of the Constitution tried to reassure the public by saying how little the Constitution would do. Opponents tried to scare the public by saying how much it would do.

Regardless of any ambiguities in the original 1787 document, the Civil War Amendments made much of Congress’ power clear, but not to the Roberts Court. President Andrew Johnson sent Gen. Carl Schurz south to report on conditions in the former Confederate states.[3] His Report revealed the ways that former slaves were being re-enslaved by new rules, tracked, beaten or killed for trying to leave, work for themselves, or what we would call walking while Black. Most clearly Congress did give itself the power to deal with those abuses, public and private in the Reconstruction Amendments, the Thirteenth, Fourteenth and Fifteenth Amendments.

You may have heard present day self-styled conservatives who have now taken over the modern Republican Party, trying to take back what the original radical Republicans tried to do, calling African-Americans and others “Fourteenth Amendment citizens.”[4]

Americans of the Civil War generation believed that citizenship gave people a number of rights and they were determined to make sure that the freedmen had those rights. The draft of the first section of the Fourteenth Amendment, as it was brought to the floor, included the right to the privileges and immunities of citizenship, due process and equal protection – each of which overruled the notorious Dred Scott decision just a few years before the Civil War. But on the floor a motion was made to make the point indisputable: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”[5]

Those are elegant words America can be very proud of. We don’t always live up to those ideals. But those ideals justify a great deal of pride. Hold onto them and don’t believe anyone who denies them. They are nothing more than apologists or dupes of the old Confederacy and modern racists.

— This commentary was broadcast on WAMC Northeast Report, January 19. 2016.

[1] See The Dunning School: Historians, Race, and the Meaning of Reconstruction, 36-39 (Univ. Press of Ky., eds. John David Smith, J. Vincent Lowery, 2013), https://books.google.com/books?id=OcJKAQAAQBAJ&pg=PA22&lpg=PA22&dq=the+Dunning+thesis&source=bl&ots=885Fs23eFw&sig=3AN6KTp5IG5gE7DF6AfL5t-5COA&hl=en&sa=X&ved=0ahUKEwiKxdeskLHKAhXHwj4KHb11BEEQ6AEIUTAI#v=onepage&q=the%20Dunning%20thesis&f=false

[2] Prior to the Civil War, counsel argued that the southernmost states would not have joined the union if they had reason to believe that Congress would have had any power over slavery. See Groves v. Slaughter, 40 U.S. 449 at app. lvii-lviii, lxv (1841); Prigg v. Pennsylvania, 41 U.S. 536, 611 (1842); Dred Scott v. Sandford, 60 U.S. 393, 411 (1856) (Taney); and see R. Cover, Justice Accused, 234, 240-41 (1975).  Thus they argued that the commerce clause had to have a narrow meaning. The Court struggled with the meaning of the commerce clause in a group of cases involving regulation of passengers. See Mayor of the City of New York v. Miln, 36 U.S. 102, 136 (1837) and The Passenger Cases, 48 U.S. 283, 474 (1849) (Taney, C. J., dissenting).  To have treated people as subject to commerce clause jurisdiction would have enlarged the possibility of power over slavery.

[3] Carl Schurz, Report on the Condition of the South, 39th Cong., 1st Sess., SENATE, Ex. Doc. No. 2 (December 19, 1865).

[4] Garrett Epps, Trump’s Birther Libel and American History, Atlantic Online, April 12, 2011, accessed on Lexis/Nexis, Jan. 17, 2016, and see online literature of the “Freedom School,” http://freedom-school.com/citizenship/fourteenth-amendment-citizenship.html.

[5] The seminal study of the history of the Fourteenth Amendment is Horace Edgar Flack, The Adoption of the Fourteenth Amendment (Classic Reprint, 2015) (1908). For a brilliant recent discussion, see Richard Aynes, Unintended Consequences of the Fourteenth Amendment and What They Tell Us About its Interpretation, 39 Akron L. Rev. 289, 309-21 (2006).


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