Census and Sensibility, Part 2

Assume for the moment that we accept the legitimacy of the Constitution (although we shouldn’t).

Assume, also, that the Constitution’s census clause not only authorises the federal government to conduct a census but also authorises it to compel people to answer it (though, again we shouldn’t accept that either).

Even so, as Rothbard reminds us, the freedom to speak includes the freedom not to speak. And since freedom of speech is guaranteed in an amendment to the Constitution, that provision automatically trumps anything in the body of the Constitution that’s inconsistent with it. So, FWIW, enforcement of the census is doubly unconstitutional.

6 Responses to Census and Sensibility, Part 2

  1. Briggs May 28, 2010 at 10:03 pm #

    Excellent point but when did constitutionality (double or otherwise) start mattering to government?

    • Roderick May 28, 2010 at 10:14 pm #

      Oh, I wasn’t suggesting that this argument would convince government types. It was mainly directed at libertarians who say things like “we shouldn’t answer anything on the census except the one constitutionally mandated question.”

  2. Anon73 May 28, 2010 at 11:36 pm #

    This feels like an attempt to stretch the definition of speech, like in court rulings where dancing is considered a form of “speech”. Providing information doesn’t seem like the kind of personal or political expression the framers had in mind when they wrote the first amendment; so on “Original Intent” grounds your angels have fallen from the pin!

    • Roderick May 29, 2010 at 11:36 am #

      I’m not an original-intent proponent, I’m an original-meaning proponent. They’re different; see here (and, for more detail, here).

  3. S.M. Oliva May 29, 2010 at 7:08 pm #

    I’ve gotten into a similar argument with the Justice Department over the antitrust laws. The DOJ insists the antitrust laws — which it claims is a valid use of Congress’s power to regulate interstate commerce — actually trumps the First Amendment’s protection of freedom of speech and assembly (as most antitrust laws restrict and ban both).

  4. Contemplationist June 14, 2010 at 12:05 am #

    This line of argument would also prove that IRS cannot compel you to fill out forms as that is the same as “speaking.” Interesting

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