If the First Amendment tells Congress it can make no law abridging freedom of speech, surely the corollary must apply: Congress may not compel citizens to speak.
But along comes the decennial Census with its prying questions about matters most people consider private, but, by law, are ordered to answer or face stiff fines -- $100 for refusing, $500 for falsifying, per question.
Article 1, Section 2 of the Constitution spells out the purpose of the Census, which is solely to determine the fair apportionment of members of the House of Representatives and direct taxation.
For example, the first Census in 1790 asked these questions:
-- Name of head of household.
-- Number of free white males 16 years and upwards.
-- Number of free white males under 16 years.
-- Number of free white females.
-- Number of all other free persons.
-- Number of slaves.
-- Sometimes the town or district residence was also recorded.
That's it. Today the Census short form has 10 questions, but the long form runs 28 pages and asks everyone in the household for name, phone number, birthday and race, as well as about the number of rooms in a home, appliances and plumbing, fuel for heating, last month's rent or mortgage payment, utility costs, whether anyone is on food stamps, annual taxes and insurance cost, education level, citizenship, language skills, health insurance, handicaps (physical, mental, emotional), marital status, grandchildren in the home, service in the armed forces, occupation, employer, commute time and method and whether carpooled, vacation and sick leave, amount of wages and benefits, other income, and on and on. (I can't help but wonder, what would the bureaucrats do if everyone truthfully answered all the monetary questions with: "more than $1"?)
James Madison argued for more than mere enumeration in 1790. He was recorded as saying "it was necessary that the description of the several classes into which the community was divided, should be accurately known; on this knowledge the legislature might proceed to make a proper provision for the agricultural, commercial and manufacturing interests, but without it they could never make their provisions in due proportion."
I doubt he foresaw the modern Census trespass.
A century later the Supreme Court dismissed out of hand -- without so much as a bother to examine original intent of the Founders -- any niggling concerns that the Census questions had grown to be too prying, too intrusive on one's personal life and lifestyle.
"The Constitution orders an enumeration of free persons in the different States every ten years," the court wrote in Knox v. Lee in 1879. "The direction extends no further. Yet Congress has repeatedly directed ... not only an enumeration of persons but the collection of statistics respecting age, sex, and production. Who questions the power to do this?"
Maybe the people being ordered to take time out of their lives to answer questions whose possible value to Congress is specious?
A right to privacy is not specifically mentioned in the Bills of Rights, but it has been found by various legal scholars in the penumbras of the document.
The First Amendment recognizes a right to privacy of religious beliefs. The Third says our private homes can't be used to quarter soldiers. The Fourth prohibits unreasonable searches of our private "persons, houses, papers, and effects." (Perhaps the most on-point argument against overbroad Census snooping.) The Fifth addresses self-incrimination. The Ninth says unenumerated rights are retained by the people.
Today the federal government has usurped so many rights, powers and duties from the people and the states that an official letter sent out this past week unabashedly tells citizens we should fill out the Census form so we can get free stuff.
"Results from the 2010 census will be used to help each community get its fair share of government funds for highways, schools, health facilities, and many other programs you and your neighbors need. Without a complete, accurate census, your community may not receive its fair share," the letter from the director of the U.S. Census Bureau advises.
How generous of them to send us back some of our own money -- after scraping off a goodly portion for overhead, graft and pork -- and tell us how and where to spend it, because surely we'd have just wasted it if we'd been allowed to just keep it in the first place. But only after rummaging through the intimate details of our lives.
Thomas Mitchell is editor of the Review-Journal and writes about the role of the press, the First Amendment and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@review journal.com. Read his blog at lvrj.com/blogs/mitchell.