Alan Dershowitz says this is a difficult Constitutional
question. https://dfw.cbslocal.com/2019/03/07/census-citizenship-question-us-democracy/?fbclid=IwAR0nwvO66iFUNeNxQc8GBDl1W0heIEYTUYN3LsEbSzopqh2bYZ6xqRT3xYg Well, the case law does allow the Government
to collect additional information when conducting the Census. https://www.census.gov/programs-surveys/decennial-census/about/census-constitution.html
But it seems pretty plain that if the intent of a particular
question (or even the impact, even if there is no intent) is to suppress the
actual count of persons, then it would be unconstitutional, as the district
court judges have found.
To see why, in addition to the actual evidence of intent
here, take a look at the
relevant provision from Article I, Section 2 of the
Constitution:
“Representatives and direct Taxes shall be apportioned among
the several States which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole Number of
free Persons, including those bound to Service for a Term of Years, and
excluding Indians not taxed, three fifths of all other Persons.” https://www.census.gov/history/pdf/Article_1_Section_2.pdf
The language speaks of “Numbers of free persons,” not
“citizens.” If the five Republican appointees to the
Supreme Court are true to their professed view that the Constitution should be
taken literally as written, they cannot, in good faith, rule that the
“citizenship” question is permissible, given the clear evidence of intent that
it is intended to scare people from filling out the Census Forms.
