The Original Understanding of the Census Clause: Statistical Estimates and the Constitutional Requirement of an 'Actual Enumeration'

64 Pages Posted: 6 Sep 2008

See all articles by Thomas R. Lee

Thomas R. Lee

Government of the State of Utah - Utah Supreme Court; Brigham Young University - J. Reuben Clark Law School

Date Written: September 4, 2008

Abstract

This article addresses the question of whether statistical methods of estimating the population for purposes of congressional apportionment are consistent with the constitutional requirement of an "actual enumeration." Although the existing literature generally asserts that history provides no meaningful guidance on this question, this Article uncovers an extensive historical record -- of both British and American origin -- that supports the conclusion that the generation of the Framers understood an "actual enumeration" would consist of an actual count and would not be based on statistical estimation.

Specifically, the Article shows that assessments of population on both sides of the Atlantic routinely contrasted methods of drawing "conjectural estimates" with the more costly approach of conducting an "actual enumeration." Moreover, the Article identifies historical evidence that the Framers' generation was well aware of the principal "modern" objection to enumeration -- that the inherent limitations of such an approach predictably lead to an undercount. Thus, the Article concludes that the Framers prescribed a census by "actual enumeration" not out of naivete or unfamiliarity with methods of estimation, but to minimize the risk of political manipulation in what they knew would always be a politically charged decision -- the apportionment of seats in the U.S. House of Representatives.

Keywords: Census Clause, actual enumeration, congressional apportionment, original understanding, Census Act, conjectural estimate, statistical sampling, demographics, imputation

Suggested Citation

Lee, Thomas R., The Original Understanding of the Census Clause: Statistical Estimates and the Constitutional Requirement of an 'Actual Enumeration' (September 4, 2008). Washington Law Review, Vol. 77, pp. 1-64, 2002. Available at SSRN: https://ssrn.com/abstract=1263580

Thomas R. Lee (Contact Author)

Government of the State of Utah - Utah Supreme Court ( email )

450 South State Street
Salt Lake City, UT 84114
United States

Brigham Young University - J. Reuben Clark Law School ( email )

519 JRCB
Brigham Young University
Provo, UT 84602
United States

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