Skip top horizontal navigation section
Skip main content area to page footer navigation

Census in the Constitution

Why Jefferson, Madison and the Founders Enshrined the Census in our Constitution

Article I, Section 2

Watch Census Bureau Director Robert Groves reflect on the Constitution and the civic duty of filling out the census form.

William Fliss, an archivist at Marquette University   Margo Anderson, a professor of History and Urban Studies at the University of Wisconsin-Milwaukee

Watch Census historians,
William Fliss and Margo Anderson, describe the origins of the census in the Constitution

History of the Census

The first census began more than a year after the inauguration of President Washington and shortly before the second session of the first Congress ended. Congress assigned responsibility for the 1790 Census to the marshals of the U.S. judicial districts. The pay allowed for the 1790 "enumerators" was very small, and did not exceed $1 for 50 people properly recorded on the rolls.

The First Federal Congress established a special committee to prepare the questions to be included in the first census. The suggestions were likely debated in the House, and according to a report in a Boston newspaper, Virginia Representative James Madison recommended at least five of the initial six questions.

The six inquiries in 1790 called for questions on gender, race, relationship to the head of household, name of the head of household, and the number of slaves, if any. Marshals in some states went beyond these questions and collected data on occupation and the number of dwellings in a city or town.

The top of a form from 1790.

The 2010 questionnaire is one of the shortest in history, and comes very close to the length and scope of inquiries asked in 1790. Everyone in the household answers seven questions: name, gender, race, ethnicity, and whether they sometimes live somewhere else. The head of household answers how many people live in the residence, whether it is a house, apartment, or mobile home, and provides a telephone number for Census workers to follow up if any information is incomplete or missing.

The first census in 1790 was managed under the direction of Thomas Jefferson, the Secretary of State. Marshals took the census in the original 13 states plus the districts of Kentucky, Maine, and Vermont, and the Southwest Territory (Tennessee). Secretary of State Thomas Jefferson was nominal supervisor of the census on Census Day, August 2, 1790.

The U.S. Constitution empowers the Congress to carry out the census in "such manner as they shall by Law direct" (Article I, Section 2). The Founders of our fledgling nation had a bold and ambitious plan to empower the people over their new government. The plan was to count every person living in the newly created United States of America, and to use that count to determine representation in the Congress.

Enshrining this invention in our Constitution marked a turning point in world history. Previously censuses had been used mainly to tax or confiscate property or to conscript youth into military service. The genius of the Founders was taking a tool of government and making it a tool of political empowerment for the governed over their government.

They accomplished that goal in 1790 and our country has every 10 years since then. In 1954, Congress codified earlier census acts and all other statutes authorizing the decennial census as Title 13, U.S. Code. Title 13, U.S. Code, does not specify which subjects or questions are to be included in the decennial census. However, it does require the Census Bureau to notify Congress of general census subjects to be addressed 3 years before the decennial census and the actual questions to be asked 2 years before the decennial census.

Questions beyond a simple count are Constitutional

It is constitutional to include questions in the decennial census beyond those concerning a simple count of the number of people. On numerous occasions, the courts have said the Constitution gives Congress the authority to collect statistics in the census. As early as 1870, the Supreme Court characterized as unquestionable the power of Congress to require both an enumeration and the collection of statistics in the census. The Legal Tender Cases, Tex.1870; 12 Wall., U.S., 457, 536, 20 L.Ed. 287. In 1901, a District Court said the Constitution's census clause (Art. 1, Sec. 2, Clause 3) is not limited to a headcount of the population and "does not prohibit the gathering of other statistics, if 'necessary and proper,' for the intelligent exercise of other powers enumerated in the constitution, and in such case there could be no objection to acquiring this information through the same machinery by which the population is enumerated." United States v. Moriarity, 106 F. 886, 891 (S.D.N.Y.1901).

The census does not violate the Fourth Amendment. Morales v. Daley, 116 F. Supp. 2d 801, 820 (S.D. Tex. 2000). In concluding that there was no basis for holding Census 2000 unconstitutional, the District Court in Morales ruled that the 2000 Census and the 2000 Census questions did not violate the Fourth Amendment or other constitutional provisions as alleged by plaintiffs. (The Morales court said responses to census questions are not a violation of a citizen's right to privacy or speech.) "…[I]t is clear that the degree to which these questions intrude upon an individual's privacy is limited, given the methods used to collect the census data and the statutory assurance that the answers and attribution to an individual will remain confidential. The degree to which the information is needed for the promotion of legitimate governmental interests has been found to be significant. A census of the type of Census 2000 has been taken every ten years since the first census in 1790. Such a census has been thought to be necessary for over two hundred years. There is no basis for holding that it is not necessary in the year 2000."

The U.S. Court of Appeals for the Fifth Circuit affirmed the District Court decision on October 10, 2001, 275 F.3d 45. The U.S. Supreme Court denied petition for writ of certiorari on February 19, 2002, 534 U.S. 1135. No published opinions were filed with these rulings.

These decisions are consistent with the Supreme Court's recent description of the census as the "linchpin of the federal statistical system … collecting data on the characteristics of individuals, households, and housing units throughout the country." Dept. of Commerce v. U.S. House of Representatives, 525 U.S. 316, 341 (1999).