[Newspoetry] High Court Considers Census Suit

Tue Apr 2 18:26:10 CST 2002

The following is a commentary upon an article at NYTimes.com:
"High Court Considers Census Suit" -- March 27, 2002 -- Associated Press 
http://www.nytimes.com/aponline/national/AP-Scotus-Census.html?ex=1018781976&ei=1&en=a4f30693ada1aebd
Copyright 2002 The New York Times Company

Emerick Commentary:
The Court seems to have boxed itself in by choosing to say that "ACTUAL ENUMERATION" (whatever that may be) is the only method that is Constitutional, according to (a) long-standing practices and (b) expectations of the Founders.

In fact, though, the Constitution does not use the language of "actual enumeration" to refer to any particular method of counting-measuring that is to be used for the purposes of the Constitutionally-mandated Census.  Instead, that phrase is used in the Constitution to refer to the difference between (a) the initial basis upon which the seats in the House of Representatives would be apportioned among the states and (b) the actual results of a subsequent census determination.  The text declares that the House seats were to be apportioned provisionally until an "actual enumeration" could be obtained as a more valid measure of the populations in the various states.  Thus, contextually, the meaning of the modifying term "actual" has nothing to do with the particularities of methods.  It refers only to the gross necessary fact of this difference between an impressionistic estimate and some better result from an "actual" counting.

The Court would be simply badly reading the Constitutional text were it to require us to practice "actual enumeration" by the techniques of counting and measuring practices that were somewhat dubious and also impractical some two hundred years ago, when they were first used in the American Census process.

If the Court were to rule that way, they would be ignoring the fact that the term "enumeration" itself is a fundamentally a reference to the practices of sciences.  However, the Court generally has left open to the Congress the possibility of using advances in measuring-counting sciences to improve the census of our nation.  The Court always hesitates to declare that Congress is so wrong as to adopt practices that violate the Constitution.  The Court prefers to think that the methods of enumeration advance so slowly and so uncertainly that the political judgment of the Congress could generally be trusted to adopt better methods when they are proven to be reliably accurate.

What Utah wants to argue in the present case is that Congress has not endorsed any form of statistical counting and that, indeed, Congress has no power to do so.  That view would be mistaken as to the power of Congress, for the Court has not in fact said that only past practices may be used in the future in the realm of counting.  When basic practices of the sciences of counting-measuring reliably evolve, and when Congress declares legislatively that such methods meet the Constitutional requirement of a Census, one may expect that the Court will endorse such declarations of Congress.

The true battle over the Census has been the underlying jurisprudential question, of when or whether the courts must intervene, to mandate modern methods of statistical counting.  Such Court intervention would be a declaration that Congress has been too negligent of its duties and too deficient or too lax in mandating that proven and reliably accurate must be used when available.  The Rehnquist Court and the federal judiciary has many conservative members who think that judging legislative wisdom is a task that ought rarely, if ever, to be done by any court.

The real question, as I say, is this one (which the Court has recently decided again, a couple of years ago): that the Court will not challenge the so0called legislative wisdom on this matter of the Census.  In the Court's view, there has been no clear and convincing evidentiary showing that the Census methods chosen by Congress are so deficient as to deprive anyone of Constitutional rights.

I differ with the Court on this matter, because almost all of the professional statisticians of the Census Bureau are firmly convinced that the present Census results are far more flawed in their countings than they would be if augmented and fortified more substantially by additional statistical methods.  However, this advice of the experts and the professionals has generally been over-ruled by the political appointees who head the Census Bureau.  Those officials cater to the will of Congress, which has been noticeably hostile to any form of counting that would result in fairer and higher population counts in urban areas where many minorities and many lower-income people live.  Indeed, if the present House were to be believed, one does not have to adopt more accurate and more expensive "actual" counting measures that reflect the greater difficulty of counting people in such regions.  Such belief itself helps produce the inequitable and increasingly inaccurate Census results from which we presently unnecessarily suffer.

Now, the sciences of statistics and their related probability theories are certainly one avenue by which counting-measuring has reliably evolved since the days of Benjamin Franklin.  Could one seriously imagine that any Founder would think that an improvement in scientific technique could be legislatively ignored on the grounds of some political hostility to the true facts that would then result?  They would have called such an idea a ridiculous prejudice of intolerant people.

Could one imagine any modern industrial, economic, financial, social or political institutions ignoring the results of contemporary sciences of statistics on the grounds that those were not "actual" countings of the things so measured?  No, no national leader is such a fool as to ignore pollings that help him or her run an election campaign more reliably.  So, why does the Court think that Congress is at all truthful when it says that statistics are not reliable enough for a Census?

The Rehnquist Court has curiously pretended that nothing in science in the area of counting-measuring was (a) expected to advance fundamentally and (b) that, indeed, it has advanced.  The Court fails to recognize the positivism of the Founders in the idea that the advance of truth and the growth of knowledge was to be expected and to be aided by the legislature.  It sometimes seems as if the Court does not recognize how progressive the Founders were in granting to Congress limited powers to protect, for limited times, the advances in knowledge and technology.  These powers -- limited by reason and practical wisdom about society's differing and conflicting needs -- find expression in the intellectual-property clauses of the Constitution.   The important thing about such powers is that they express the idea that incipient advances of science and technology need affirmative protection, until the inventors or the discoverers have had a reasonable opportunity to profit, personally, from their contributions to the growth of knowledge and its related technologies.

This great power of society, to recognize someone as the owner of an idea, rests on the default belief that ideas essentially belong to everyone.  Sooner or later, Great Nature must show its Truths to Man.  The vesting of this great power in Congress shows the political belief that it is in our interest to recognize the "first" one who demonstrably claims to have found and expressed the idea.  The first in time and thus the soonest in time would be the only one with a legal right to profit from his or her industriousness.

While ideas -- as part of Nature itself -- belong to everyone, they are also above the Constitution and the human law.  Only ownership and protection of them is a positive duty of the Congress.  From this vantage, then, to the extent that Congress fails to recognize formally statistical methods in the Census, it grossly fails its Constitutional duty to protect and promote the advancement of knowledge.

The Truths of Nature, as elementary facts, establish the possibility that any legal proposition could be just in a society.  (Incidentally, the Founders sometimes personified and euphemized the Province of Nature by referring to Nature's God, but they were more primitive in such practices than some of us today are.)  The Founders thought that human law had two primary possibilities: to oppose Nature or to follow Nature.  A law might oppose Nature when it merely rested upon some transient, accidental configuration of simple contingent events -- a happenstance.  The Founds knew that happenstance were provisionally necessary, like stepping stones, perhaps.  However, their belief was that, over time, laws would generally come ever closer to better following Nature, and that their society ought to be faster at following Nature's decrees than any other society of the Old World.  So, on this ground, alone, the Founders would have expected new counting-measuring techniques to be used sooner rather than later, after all possible reasonable doubts might have been completely resolved.

The Founders wanted to minimize system error-costs and to enhance system benefits, by adapting the system to innovations as early as possible.  If system errors were to persist, when decidedly superior methods were available and at much more affordable cost levels, the Founders would have said that fools and knaves, like those in the government of George III, were in charge of the system.  Yet, here we have a Census that shows system errors, operates at higher costs that other available and more affordable and more accurate counting methods.  And, what does the Court say:  it says, itself foolish, let us rely on Congress.

Thanks for listening,
Donald L Emerick
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