Census Case

Amici curiae, National Citizens Legal Network, a project of = Citizens=20 United Foundation, U.S. Border Control, Lincoln Institute for Research = and=20 Education, English First Foundation, and Policy Analysis Center, are = nonprofit=20 educational organizations sharing a common interest in the proper = construction=20 of the Constitution and laws of the United States.^=
(1)=20 Each of the amici was separately established in the District of = Columbia or the Commonwealth of Virginia within the past twenty years = for=20 purposes related to participation in the public policy process. For each = of the=20 amici, such purposes include programs to conduct research, and = to=20 inform and educate the public on important issues of national concern, = including=20 questions related to the original intent of the Founders and the correct = interpretation of the United States Constitution. In the past, each of = the=20 amici has conducted research on other issues involving = constitutional=20 interpretation, and several have filed amicus curiae = briefs in=20 other federal litigation involving constitutional issues, including = briefs=20 before this Court.^=
(2)

This brief is intended to assist the Court in fully developing the = issues in=20 the matters now before this Court. Hopefully, the perspective of = nonprofit=20 educational organizations, including these amici curiae, will = assist=20 this Court in obtaining a better understanding of the ramifications of = this=20 legal dispute.

The two cases now before this Court concern the authority of the = appellants,=20 who include the President and the U.S. Department of Commerce, to use=20 statistical sampling in the next United States decennial census ("the = 2000=20 Census") as a partial substitution for an actual enumeration of the = population.=20 These amici, particularly because of their interest in the = integrity of=20 constitutional processes, are deeply concerned about appellants' plan to = substitute statistical sampling techniques for an actual enumeration in = the 2000=20 Census to determine the population of the states for apportionment = purposes,=20 believing that appellants' plan would violate not only the Census Act, = but the=20 Constitution as well.

SUMMARY OF ARGUMENT

Two three-judge panels of separate United States district courts have = concluded, in unanimous opinions, that appellants' proposed use of = sampling=20 techniques in the 2000 Census to estimate the population for purposes of = apportionment is illegal. Both opinions found that the Census Act (at 13 = U.S.C.=20 Sec. 195) proscribes the use of sampling to determine the population for = decennial apportionment. The decisions of the courts below are correct = and=20 should be affirmed.

The district courts did not find it necessary to reach the question = of=20 whether, under the Constitution, Congress may authorize the Secretary to = use=20 sampling to determine state populations for purposes of apportionment. = If this=20 Court should reach that question, the Constitution (see Art. I, = Sec. 2,=20 Cl. 3, and Sec. 2 of the Fourteenth Amendment) provides the clear, = unambiguous=20 answer: the census must be an "actual enumeration," and the process must = be one=20 of "counting the whole number of persons in each state."

Appellants' invitation to disregard the plain meaning of the = Constitution's=20 precise language should be rejected. Review of the historical record = supports=20 the fact that "actual enumeration" as used in Art. I, Sec. 2, Cl. 3, was = intended to have its plain meaning. The Framers of the Constitution = foresaw the=20 concern that would be raised by appellants' census plan: the danger of=20 politically manipulated apportionment. The Framers were aware that an = actual=20 enumeration -- an actual "headcount" -- was necessary to guarantee the=20 representative nature of the lower house of Congress, whose membership = would be=20 distributed by state according to population. They wisely mandated a = census by=20 actual enumeration, refusing to leave the matter to the discretion of = executive=20 officials or legislators.

Current events show that the risk of manipulation is real. = Investigations and=20 reports by committees of the 105^th Congress underscore = concerns=20 regarding the deeply politicized agency which supervises the = administration of=20 the census -- the Commerce Department. A census by actual enumeration is = necessary to preserve public confidence in the integrity of the House of = Representatives as well as to guard against the appearance of political=20 corruption.

ARGUMENT

I. THE PLAIN LANGUAGE OF THE CENSUS ACT PROHIBITS SAMPLING = FOR=20 PURPOSES OF APPORTIONMENT

Three-judge panels of two federal district courts each ruled = unanimously that=20 the plain language of Sections 141 and 195 of the Census Act prohibits = the=20 Secretary of Commerce from employing sampling methods to determine state = population totals for purposes of apportioning seats in the U.S. House = of=20 Representatives. See United States House of = Representatives v.=20 United States Dept. of Commerce, C.A. No. 98-0456 (D.D.C., Aug. = 24, 1998)=20 ("House v. Commerce"), J.S. App. 1a-67a (No. 98-404);=20 Glavin v. Clinton, C.A. No. 98-207-A (E.D. Va., Sept. 24, = 1998),=20 J.S. App. 1a-22a (No. 98-564). The district courts' holdings should be=20 affirmed.

Although sampling may be used to gather certain information during = the=20 decennial census, the Census Act expressly prohibits sampling "for the=20 determination of population for purposes of apportionment of = Representatives in=20 Congress among the several States...." 13 U.S.C. Sec. 195. For purposes = other=20 than apportionment, Section 195 requires the use of sampling if the = Secretary of=20 Commerce "considers it feasible."^=
(3)=20 Section 141 likewise permits, at the Secretary's discretion, the use of = sampling=20 procedures and special surveys as part of the decennial census -- = although, as=20 the court stated in House v. Commerce, in the case of=20 apportionment, the general authorization gives way to the express = prohibition of=20 Sec. 195. J.S. App. at 60a-67a. See also opinion of the court = in=20 Glavin v. Clinton, J.S. App. at 18a-22a.

Appellants read the first clause of Sec. 195 ("Except for the = determination=20 of population for purposes of apportionment of Representatives in = Congress among=20 the several States...") as an exception to a "mandatory directive" ("the = Secretary shall, if he considers it feasible, authorize [sampling].").=20 Appellants argue that "[n]o rule of statutory construction = suggests...that=20 activities specifically excepted from a mandatory directive are thereby=20 prohibited." Aplt. Brief, pp. 28-29.^=
(4)=20 Citing several examples of what they term the "except/shall = formulation,"=20 appellants state that the exception from a mandatory directive does not=20 constitute a prohibition in any of them. Id., n. 15. Appellants = contend, therefore, that the general permission to sample under Sec. 141 = governs, granting the Secretary authority to use sampling for all = purposes,=20 including apportionment. Id., p. 29. The effect of the two = sections of=20 the statute, according to appellants, is to allow the Secretary to use = sampling=20 for apportionment purposes at his discretion.

Under this strained reading of Sec. 195, the exception to the general = authorization to use sampling would be wholly negated, since the = Secretary could=20 employ sampling both for nonapportionment purposes "if he considers it = feasible"=20 and, again at his discretion, for apportionment purposes. Such a reading = would=20 render the exception in Section 195 devoid of meaning. Statutes must be = read so=20 that every word has some operative effect, so as to avoid "emasculating" = a=20 Congressional enactment. See Bennett v.=20 Spear, 520 U.S. 154, 117 S.Ct. 1154, 1166 (1997); United=20 States v. Menasche, 348 U.S. 528, 538-39 = (1955).^=
(5)

Contrary to appellants' reading of Sec. 195, the second clause of = Sec. 195 is=20 not a "mandatory directive." It directs the Secretary of Commerce to = authorize=20 the use of sampling "if he considers it feasible." The Secretary = therefore has=20 discretion to employ sampling (dependant on whether he considers = sampling=20 feasible) "except...for purposes of apportionment." Appellants' analysis = of the=20 second clause of Sec. 195 as a "mandatory directive" might have been = closer to=20 the plain meaning of the statute if Sec. 195 omitted entirely all = references=20 both to feasibility and to the Secretary's judgment (i.e., = sampling=20 must be employed in all situations).^=
(6)=20 As it stands, however, Sec. 195 permits the use of sampling at the = Secretary's=20 discretion, except for "the determination of population for purposes of=20 apportionment of Representatives in Congress among the several = States."

The Administration's plan therefore violates the Census Act by = requiring the=20 illegal use of statistical estimation methods to determine population = counts for=20 purposes of apportionment.

II. THE PLAIN LANGUAGE OF THE CONSTITUTION REQUIRES AN ACTUAL = ENUMERATION FOR PURPOSES OF APPORTIONMENT

The courts below did not reach the constitutional question. Thus, if = this=20 Court affirms the determination of either court regarding the Census = Act,=20 resolution of the constitutional question is not necessary. If, however, = this=20 Court should reach the constitutional question, the answer is certain: = the=20 population of the United States in the decennial census, for purposes of = apportionment, must be actually enumerated, not merely estimated.

The Constitutional Language Must Be Given Its Normal and = Intended=20 Meaning

Art. I, Sec. 2, Cl. 3 of the Constitution requires Congress to enact = a law=20 requiring a decennial census be conducted to determine the number of=20 representatives to be elected to the House of Representatives from each = state.=20 Additionally, that Clause, as modified by Sec. 2 of the Fourteenth = Amendment,=20 requires that the law enacted by Congress provide for the "actual = enumeration"=20 of the American populace by "counting the whole number of persons in = each State,=20 excluding Indians not taxed."

Appellants argue that the Constitution does not require an actual = headcount=20 of the American people, but merely an estimate of the number of people = in each=20 state. Aplt. Brief, pp. 39-49. To support this contention, appellants = have=20 ignored key words contained in both Art. I, Sec. 2, Cl. 3, and in Sec. 2 = of the=20 Fourteenth Amendment. Aplt. Brief, pp. 40-41. Additionally, they have = lifted out=20 of context other words, claiming that the only constitutional = requirement is=20 that a census be taken to "further the goal of equal representation for = equal=20 numbers of people." See id., p. 46, n. 28.

The language of the relevant constitutional provisions, however, is = not=20 susceptible of such a strained interpretation. Because Art. I, Sec. 2, = Cl. 3=20 requires Congress to enact a law providing for a census by "actual = enumeration,"=20 Congress is not free to legislate to provide for a census count by any = method of=20 its own choosing. And because Sec. 2 of the Fourteenth Amendment = contains a=20 parallel call for a "counting of the whole number of persons in each = State,"=20 Congress cannot by law direct a census to count some of the persons in = each=20 state and "estimate" the number of those not counted. In short, the = plain=20 meaning of the constitutional text denies to both the Congress and the = Executive=20 Branch the authority to employ statistical methods to calculate the = population=20 of each state for purposes of apportionment.

B. The Plain Meaning Doctrine Governs

From the earliest days of the Republic, this Court has observed the = principle=20 that the "words of the constitution are to be taken in their obvious = sense."=20 Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, = 618=20 (1895). As Chief Justice Marshall stated in Gibbons v. = Ogden, 22=20 U.S. (9 Wheat.) 1, 188 (1824), "the enlightened patriots who framed our=20 constitution, and the people who adopted it, must be understood to have = employed=20 words in their natural sense, and to have intended what they have said." = Sixty-five years later, Justice Lucius Q. C. Lamar elaborated upon this = rule for=20 a unanimous Court. Justice Lamar wrote:

Why not assume that the framers of the Constitution, and the people = who voted=20 it into existence, meant exactly what it says? At the first glance, its = reading=20 produces no impression of doubt as to the meaning. It seems all = sufficiently=20 plain; and in such a case there is the well settled rule which we must = observe.=20 The object of construction, applied to a Constitution, is to give effect = to the=20 intent of the framers, and of the people adopting it. This intent is to = be found=20 in the instrument itself; and when the text of a constitutional = provision is not=20 ambiguous the courts, in giving construction thereto, are not at liberty = to=20 search for meaning beyond the instrument. [The Board of = County=20 Commissioners v. Rollins, 130 U.S. 662, 670 = (1889).]

More recently, this Court applied the plain meaning rule in a case of = first=20 impression. Federal District Judge Walter L. Nixon sought review of his=20 conviction by the United States Senate on charges of impeachment, = claiming that=20 he had not been given a "judicial trial" before the full Senate, as = required by=20 Art. I, Sec. 3 (which provides that "[t]he Senate shall have sole Power = to try=20 all Impeachments"). Nixon v. United = States, 506=20 U.S. 224, 229 (1993). This Court refused to accept Mr. Nixon's effort to = impose=20 a technical meaning upon the word "try," noting that the dictionary = gives it=20 "considerably broader meanings than those to which petitioner would = limit it."=20 Id. In addition to ascribing a common sense meaning to "try," = this=20 Court observed that the Constitution had granted to the Senate the = "sole" power=20 to examine impeachment charges. Again, this Court chose the "common = sense=20 meaning" of the word "sole," concluding "that the Senate alone shall = have=20 authority to determine whether an individual should be acquitted or = convicted."=20 Id., 506 U.S. 230-31.

Having followed in the Nixon case "the well established rule = that the=20 plain language of the enacted text is the best indicator" of the meaning = of a=20 particular constitutional provision, id., 506 U.S. at 232, this = Court=20 demonstrated the continuing vitality of the traditional rule that the = meaning of=20 a constitutional text is determined by "the natural signification of the = words,=20 in the order of grammatical arrangement in which the framers of the = instrument=20 have placed them." The Board of County Commissioners v. = Rollins,=20 supra, 130 U.S. at 670. As Justice Lamar explained in the=20 Rollins case:

If the words convey a definite meaning, which involves no absurdity = nor any=20 contradiction of other parts of the instrument, then that meaning, = apparent on=20 the face of the instrument, must be accepted, and neither the courts nor = the=20 Legislature have the right to add to it or take from it. = [Id.]

The question here is whether the words used in the Constitution that = govern=20 the conduct of the decennial census "convey a definite meaning" and, if = so, if=20 that meaning is consistent with or contrary to other parts of the = document.

1. The Plain Meaning Doctrine Applies to the Constitutional = Text=20 Mandating a Decennial Census

Art. I, Sec. 2, Cl. 3 of the Constitution utilizes ordinary language = to=20 describe how the decennial census is to be conducted: "The actual = Enumeration=20 shall be made...within every...Term of ten years." Sec. 2 of the = Fourteenth=20 Amendment likewise uses ordinary language to describe the means by which = the=20 decennial census is to occur: "counting the whole number of persons in = each=20 State, excluding Indians not taxed." The operative words, "actual = Enumeration"=20 and "counting," are not words of art, nor are they imbued with special = historic=20 meaning like "due process of law." Rather, they are practical = prescriptions=20 understood by all, directing how the task of numbering the people for=20 apportionment is to be accomplished.

On pages 40 and 41 of their brief, appellants set forth their claim = that "the=20 text of the census clause does not require the use of any particular = method to=20 determine the populations of the several states." In addressing the = meaning of=20 the constitutional language, however, appellants have neglected to = define two=20 key words found in the relevant texts. First, in their attempt to = ascertain the=20 meaning of "enumeration," appellants made no effort whatsoever to = ascertain the=20 ordinary meaning of the word "actual," even though the constitutional = text calls=20 for an "actual enumeration." Second, appellants made absolutely no = effort to=20 determine whether the text of Sec. 2 of the Fourteenth Amendment = contributes to=20 an understanding of the meaning of "actual enumeration," even though = that text=20 explicitly addresses the way that the decennial census is to be = conducted,=20 requiring, inter alia, the "counting of the whole number of = persons in=20 each State."^=
(7)

Had appellants addressed the word "actual," they would have had to = concede=20 that the enumeration must be "real," not "virtual" or "potential." At = the time=20 of the Convention, "actual" meant "really in act." Samuel Johnson, A=20 Dictionary of the English Language (4^th Ed., 1773). Had=20 appellants acknowledged the existence of "counting" in the Fourteenth = Amendment,=20 they would have had to admit that the census mandated by the = constitution had to=20 be conducted by naming the people "one by one, or by small numbers, for=20 ascertaining the whole," not by estimating the whole "without measuring = or=20 weighing" each component. Noah Webster, American Dictionary of the = English=20 Language (1828). Having failed to address these ordinary meanings of = "actual" and "counting," appellants' proposed definition of enumeration = is=20 fatally flawed.

Compounding this error, appellants sought to define "enumeration" = using a=20 modern dictionary as their primary reference. This departs from the = practice of=20 this Court to ascertain the meaning of the ordinary language in the = Constitution=20 by primary reference to a dictionary in use at the time of the = Constitutional=20 Convention. See Nixon v. United States, 506 U.S. = 224,=20 229-30 (1993). Had appellants followed this practice, they would have = seen that=20 to "enumerate" was "to reckon up singly" or "count over distinctly." = Samuel=20 Johnson, supra.

The plain meaning of "actual," "enumeration," and "counting" is = further=20 confirmed upon examination of the other constitutional provisions which = use the=20 same or similar words. The word "actual" appears in two other = provisions.=20 According to Art. II, Sec. 2, Cl. 1, the President is commander in chief = of a=20 state militia only when it is "called into the actual" = service=20 of the United States. (Emphasis added.) According to the Fifth = Amendment, a=20 member of a state militia is not entitled to the protection of the grand = jury=20 indictment guarantee only when the militia is "in=20 actual service in time of War or public danger." = (Emphasis=20 added.) In both instances, this Court has -- from the beginning -- = insisted that=20 these provisions apply only when a state militia has really=20 entered into the service of the United States, not just been = organized=20 and readied to enter that service. Houston v. Moore, 18 = U.S. (5=20 Wheat.) 1, 16-20, 60-64 (1820); Johnson v. Sayre, = 158=20 U.S. 109, 114-15 (1895). As Justice Story stated, it is one thing for = the=20 Congress to "call forth the Militia" into the service of the United = States; it=20 is quite another to actually enter into that service. = Houston,=20 supra, 18 U.S. at 64.

The word "enumeration" also appears more than once in the = Constitution. The=20 Ninth Amendment states that "[t]he enumeration in the=20 Constitution, of certain rights, shall not be constructed to deny or = disparage=20 others retained by the people." (Emphasis added.) While the identity of = the=20 "unenumerated" rights referred to in this Amendment have been vigorously = disputed, there is no debate that the "enumeration" of rights referred = to in the=20 Amendment refer to the actual rights that are = "specifically=20 mentioned" in the constitutional text. See Griswold v.=20 Connecticut, 381 U.S. 479, 488-93, 519-27 (1965).^=
(8)

While the word "counting" does not appear elsewhere in the = Constitution, the=20 word "counted" appears in the provisions addressing how the votes for = President=20 and Vice-President are to be ascertained in the Electoral College. = See=20 Art. II, Sec. 1, Cl. 3. See also the Twelfth Amendment. Can = there be=20 any doubt that such votes are to be reckoned one by one and not = estimated by=20 some formula (e.g., based upon an estimated "undercount" of = votes=20 cast)? Indeed, this Court has stated that "all qualified voters have a=20 constitutionally protected right 'to cast their ballots and have them = counted,'"=20 that "[e]very voter's vote is entitled to be counted once," and = that"[i]t must=20 be correctly counted and reported." Gray v. Saunders, = 372=20 U.S. 368, 380 (1963).

If "counted," in relation to an elector's vote in the electoral = college,=20 means individually computed, then surely "counting the whole number of = persons=20 in each State" in the decennial census must mean individually = ascertaining that=20 whole number. If "enumeration" in relation to the Constitution means = individual=20 specification in the written text, then "enumeration" in relation to the = decennial census must likewise require individual treatment. And if = "actual" in=20 relation to the state militia's federal service requires proof of = entrance into=20 the service in fact, then "actual" in relation to the decennial census = must also=20 deal with facts, not estimates.

Only when the Constitution's terms are construed in their "natural=20 signification" does it function harmoniously as a whole. Indeed, by = attribution=20 of identical meanings to these words throughout the constitutional text, = the=20 "simplest and most obvious interpretation" of the document is embraced = -- which=20 "is the most likely to be that meant by the people in its adoption." = The=20 Board of County Commissioners v. = Rollins,=20 supra, 130 U.S. at 671.

The Plain Meaning Doctrine Limits the Conduct of the = Decennial=20 Census

According to Art. I, Sec. 2, Cl. 3, the first "actual Enumeration" of = the=20 people and every subsequent enumeration was to be conducted "in such = Manner as=20 they (Congress) shall by Law direct." By limiting Congress to prescribe = only the=20 "Manner" by which the "actual Enumeration" was to be accomplished, the=20 Constitution limited the power of Congress to enact only such = legislation that=20 is designed to provide for an "actual enumeration" of the population. = This=20 limitation upon Congressional power has been reinforced by the = prescription=20 contained in Sec. 2 of the Fourteenth Amendment that the census "[count] = the=20 whole number of persons in each State, excluding Indians not taxed." = For, as=20 this Court has ruled recently, the power of the Congress in relation to = the=20 substantive provisions of the Fourteenth Amendment is "remedial," = limited to the=20 enforcement of those provisions as written. City of Boerne v.=20 Flores, 521 U.S. ___, 138 L.Ed. 2d 624, 636-44 = (1997).

Not surprisingly, Congress has invariably provided for actual = enumeration of=20 the people, reflecting the plain meaning of the constitutional text. = See=20 Franklin v. Massachusetts, 505 U.S. 788, = 803-06=20 (1992); United States Dept. of Commerce v.=20 Montana, 503 U.S. 442, 448-56 (1990).

The Appellants' Argument Ignoring the Plain Meaning of the=20 Constitutional Text Is Spurious

Appellants ask this Court to disregard the plain meaning of the = census=20 provisions of Art. I, Sec. 2, Cl. 3 and Sec. 2 of the Fourteenth = Amendment in=20 favor of permitting the decennial census to be conducted by any means so = long as=20 it "furthers the goal of equal representation for equal numbers of = people."=20 Aplt. Brief, p. 46, n. 28. In support of this startling proposition, = appellants=20 note that the phrase "actual enumeration" was placed in Art. I, Sec. 2, = Cl. 3 by=20 the Committee of Style and Arrangement -- after the Convention had = approved of=20 an earlier version that stated simply that the decennial census "be = taken in=20 such manner as the said Legislature shall direct." Because there is no = record=20 that the Convention ever considered whether the insertion of "actual=20 enumeration" was calculated to limit such legislative power, appellants = have=20 urged that the phrase must not have been designed to impose any = limitation on=20 Congress's authority to direct the census however it sees fit, but only = "to=20 distinguish the permanent basis for apportioning Representatives from = the=20 temporary allocation set forth in the Census Clause." Aplt. Brief, pp. = 43-46.

Appellants' argument is clever, but spurious, resting upon the = proposition --=20 rejected by this Court -- that a constitutional text should be read not=20 according to its final adopted form, but according to an earlier draft. = In=20 launching this subterranean attack upon the constitutional text, = appellants have=20 misapplied the rules of textual interpretation adopted and followed by = this=20 Court.

In footnote 25 on page 44 of their brief, appellants assert that this = Court's=20 opinion in Nixon v. United States, supra, 506 = U.S. at=20 231, stands for the proposition that words added by the Committee of = Style must=20 be construed so as to conform to an earlier draft of the Constitution = because=20 "'the Committee of Style had no authority from the Convention to alter = the=20 meaning' of the draft Constitution submitted for its review and = revision."

In Nixon, this Court rejected this very proposition. Mr. Nixon = claimed=20 that the word "sole" as it appears in Art. I, Sec. 3, Cl. 6 has "no = substantive=20 meaning" because "the word is nothing more than a 'cosmetic edit' added = by the=20 Committee of Style after the delegates had approved the substance of the = Impeachment Trial Clause." This Court rejected Mr. Nixon's approach, = relying on=20 the presumption that when the Committee of Style added "sole" to the = text, it=20 "captured what the Framers meant in their unadorned language." Further, = this=20 Court concluded that the Committee must have done its job because the=20 "Constitutional Convention voted on, and accepted, the Committee of = Style's=20 linguistic variation." This Court concluded that "sole" -- the word = added by=20 that Committee -- "was entitled to no less weight than any other word of = the=20 text." To have concluded otherwise, the Court observed, would elevate = the=20 "second to last draft" of the constitutional text above the final = version, which=20 would violate "the well established rule that the plain language of the = enacted=20 text is the best indicator of intent." 506 U.S. at 231-32.^=
(9)

Nixon's plain meaning rule does not support appellants' = denigration of=20 "actual enumeration" to a merely descriptive, transitional term. = See=20 Aplt. Brief, p. 45. To the contrary, "actual enumeration" is best = understood as=20 a normative term which differentiates between the apportionment of=20 representatives in the first House of Representatives from the = apportionment=20 method to be followed thereafter. Further, the term's plain meaning is=20 reinforced by the historical context.

As appellants acknowledge, the initial apportionment of = representatives=20 provided for in the Constitution was based, in part, on estimates of = future=20 population growth and other non-population factors. Aplt. Brief, p. 45, = n. 26.=20 While such an expedient method of apportionment was applied at the = beginning,=20 this method was not to be repeated in the future. Instead, within three = years=20 after the first meeting of Congress, the Constitution required an = "actual=20 enumeration" of the people of each state so that the composition of the = House=20 reflected the proportion of the actual population of the states.

Given that the composition of the first House was based upon = estimates, to be=20 changed as soon as the constitutionally-required census was conducted, = it is=20 clear that the "actual enumeration" language was designed to obtain a = census=20 based upon an actual count of actual people, not another estimate. = See=20 J. Madison, Notes of Debates in the Federal Convention, = pp. 267-68 (Norton: 1987 ed.) (hereinafter "Madison's=20 Notes").

D. Appellants' Version of the Underlying Purposes of Article = I,=20 Section 2 Must Give Way to the Plain Meaning of the Constitutional=20 Text

Appellants say that the meaning of "actual enumeration" should be = determined=20 by "the purposes underlying Article I, Section 2." In ascertaining those = purposes, however, appellants reach beyond the constitutional text, = asserting=20 that the "fundamental goal" of the decennial census is to secure "'equal = representation for equal numbers of people for the House of = Representatives.'"=20 Having extrapolated this singular purpose as the objective of the = census,=20 appellants claim that the Constitution should not be read to bar any=20 "census-taking technique..." that "would produce more accurate = population=20 figures" than an actual headcount. Aplt. Brief, pp. 46-47.

Appellants' extrapolation is just another example of their disregard = for the=20 plain meaning doctrine of this Court. The constitutional purpose of the=20 decennial census is not, as appellants have contended simplistically, to = secure=20 "equal representation for equal numbers of people." Rather, as Article = I,=20 Section 2 states, the purpose of the census is to ensure that the House = of=20 Representatives be chosen "by the people of the several = States...according to=20 their respective Numbers...among the several States." Thus, the goal of = the=20 decennial census is to enumerate the actual numbers of residents of each = state=20 so that each state would be on an equal footing in relation to its = inhabitants.=20 See Madison's Notes, pp. 267-68.

To secure this goal, the Convention not only mandated a "periodical = census,"=20 it dictated a methodology for that census, tying the hands of Congress = so "that=20 they could not sacrifice their trust to momentary considerations. = See=20 id. at 268. The methodology required a permanent standard, a fixed = rule not=20 left to the discretion of the legislature.

The purpose of the words "actual enumeration" is to fix the = fundamental=20 process of executing the decennial census so that the numbers cannot be=20 manipulated to evade the constitutional objective of equal = representation in=20 proportion to the actual residents of each state. When examined in light = of the=20 constitutional purpose of the census, an actual enumeration best = fulfills that=20 purpose. Whenever government officials depart from the plain meaning of = a=20 constitutional text in order to achieve some "higher goal" -- as = appellants seek=20 to do in this case -- then, in the end, "'the Constitution...is in = danger of=20 being rendered a mere dead letter....'" The Board of County = Commissioners=20 v. Rollins, supra, 130 U.S. at 671. The plain meaning = rule was=20 fashioned in order to avoid this danger:

Words are the common signs that mankind make use of to declare their=20 intention to one another; and when the words of a man express his = meaning=20 plainly, distinctly and perfectly, we have no occasion to have recourse = to any=20 other means of interpretation. [Id.]

III. THE CONSTITUTIONAL INTEGRITY OF THE REPUBLIC REQUIRES=20 APPORTIONMENT BY AN ACTUAL ENUMERATION OF THE PEOPLE, NOT BY A = STATISTICAL=20 ESTIMATE OF THE POPULATION

An Actual Enumeration for Apportionment Is Essential to = Protect the=20 Representative Nature of the House of Representatives

One of the most extensively debated issues at the Constitutional = Convention=20 was how to insure that the House of Representatives achieved an = "equitable ratio=20 of representation" between the several states. At first, the debate = focused on=20 whether Congress should have discretion to "take a periodical census for = the=20 purpose of redressing inequalities in the Representation..." = Madison's=20 Notes, pp. 266-67, 271-72. Those who favored a constitutional = mandate for a=20 periodic census ultimately prevailed, persuading their fellow delegates = that it=20 was in "the nature of man...that those who have power in their hands = will not=20 give it up while they can retain it." Id. at 266. As General = Pinckney=20 of South Carolina bluntly said:

[I]f the revision of the census was left to the discretion of the=20 Legislature, it would never be carried into execution. The rule must be = fixed,=20 and the execution of it enforced by the Constitution. Id. at = 277.

In addition to deciding to mandate a census, Convention delegates = further=20 limited Congressional discretion, defining how the census must be taken, = including requirements that the census be conducted every ten years and = that it=20 be based upon an actual enumeration of people -- not an estimate of the = wealth=20 of the people. Again, the delegates were concerned that if Congress were = left to=20 its own discretion, "[t]he danger will be revived that the ingenuity of = the=20 Legislature may evade or pervert the rule so as to perpetuate the power = where it=20 shall be lodged in the first instance." Id. at 279. Having so = limited=20 the discretion of Congress, the Convention produced a permanent, fixed = standard=20 -- an absolute rule -- of reapportionment. Alexander Hamilton could = assure the=20 American people that the House of Representatives would truly be = representative=20 of the people, free from "partiality" and "oppression." The = Federalist=20 No. 36; see also The Federalist No. 58.

For over 200 years this absolute rule has served the nation well. = Now,=20 however, the current Administration seeks to abandon it. Appellants = claim the=20 authority to forego the census's continuous reliance upon an actual = headcount of=20 the people in favor of an estimate based upon statistical sampling. They = rest=20 their claim upon the contention that their sampling estimate would = improve the=20 accuracy of the census. This claim of improved accuracy, in turn, is = based upon=20 an estimate that the 1990 census could have been more accurate had it = been based=20 upon statistical sampling.

Such claims of enhanced accuracy are suspect for at least two = reasons. First,=20 sampling methods clearly are no guarantee of accuracy. Indeed, following = the=20 1990 Census enumeration, then-Secretary of Commerce Robert Mosbacher = decided not=20 to use statistical sampling to adjust the 1990 figures -- in part = because of the=20 widely divergent results caused by even the smallest changes in the = assumptions=20 undergirding the statistical models available to him. Decision of = the=20 Secretary of Commerce on Whether a Statistical Adjustment of the 1990 = Census of=20 Population and Housing Should Be Made, etc., 56 Fed. Reg. 33583 = (July 15,=20 1991). Moreover, he observed that the development of a statistical model = required essentially arbitrary decisions, which, in turn, would result = in=20 significantly different census results. Id. at 33600-03.

Second, the discretion inherent in the adoption and development of=20 statistical models offers ample room for the very kind of political = manipulation=20 of the apportionment process that the Framers sought to avoid. After = all, the=20 constitutional limits upon the conduct of the census were not based upon = an=20 absence at that time of sophisticated statistical tools to arrive at an = accurate=20 estimate of the population. Rather, they were based upon the unchanging=20 "truth...that all men having power ought to be distrusted to a certain = degree."=20 Madison's Notes, supra, p. 272.

Convinced of the "political depravity of man," as Madison put it,=20 id., the Constitution's framers were not willing to entrust = Congress,=20 despite all of its internal checks and balances, with the kind of = discretion=20 that appellants now claim for one man. There is far greater danger of = partisan=20 political manipulation when the conduct of the census reposes in a = single=20 individual's discretion.

The maintenance of the House of Representatives as the branch of the = national=20 legislature proportioned to the actual population of the states, as = mandated by=20 the Constitution, is reason enough to deny appellants the discretionary = power=20 that inevitably attends a census conducted by statistical sampling.

B. An Actual Enumeration for Apportionment Is Essential to = Preserve=20 Public Confidence in the Integrity of the Apportionment = Process

In addition to concerns expressed about the integrity of the House of = Representatives as a representative body apportioned to the population = of the=20 several states, the Constitution's Framers were concerned about ensuring = the=20 people's confidence in that body. Already mindful of the western = migration of=20 the American people, convention delegate George Mason of Virginia = expressed=20 concern that, as new states were added to the Union, they be "treated as = equals=20 and subjected to no degrading discriminations." If the people in these = new=20 states were deprived of their "equal footing" in the House of = Representatives,=20 then, he predicted, they "will either not unite with or will speedily = revolt=20 from the Union...." Madison's Notes, supra, at 267. Mason's = fellow=20 Virginia delegate, Edmund Randolph, echoed this concern, claiming that = "[i]f a=20 fair representation of the people be not secure, the injustice of the = Government=20 will shake it to its foundations." Id. at 268.

Justice Joseph Story reaffirmed the importance of having a House of=20 Representatives which is truly representative of the people. He observed = that=20 apportioning membership in that legislative branch on the basis of = population=20 "had the recommendation of great simplicity and uniformity in its = operation, of=20 being generally acceptable to the people, and of being less liable to = fraud and=20 evasion, than any other which could be devised." Joseph Story, = Commentaries=20 on the Constitution of the United States, Section 633 (1833 = ed.).

To ensure public trust, the Constitution withheld discretion from = Congress as=20 to how or whether to conduct a census, lest they "sacrifice their trust = to=20 momentary considerations." Madison's Notes, supra, at = 268. In=20 other words, the Framers understood that the people's confidence in the=20 integrity of the new House of Representatives depended upon a census = that was=20 not subject to political manipulation. Thus, they provided for an = apportionment=20 based upon actual enumeration of the people, rather than some other = method=20 susceptible, in the words of Justice Story, to "fraud and evasion."

C. An Actual Enumeration for Apportionment Is Essential in = Order to=20 Guard Against the Appearance of Political Manipulation

This year, Deputy Secretary of Commerce Robert L. Mallett remarked to = the=20 National Association of Development Organizations that "[t]he Census = isn't a=20 trivia collection. It is the measure we use to distribute = political=20 power in the country...." Regulatory Intelligence Data (April = 27, 1998)=20 (emphasis added). The admitted significance of a properly conducted = census=20 deserves attention, especially in light of the increasing politicization = of the=20 Commerce Department -- which will supervise conduct of the 2000 = Census.

Investigations conducted by the 105^th Congress have = reported to=20 the American people concerning the extent of the Commerce Department's=20 politicization. For example, in testimony before the Senate Committee on = Governmental Affairs, Richard Sullivan, a former National Finance = Director for=20 the Democratic National Committee ("DNC"), addressed the relationship = between=20 this national political organization and the Commerce Department under = Secretary=20 Brown:

Ron Brown was an aggressive Commerce Secretary. There was always this = criticism that we were getting about, you know, the ties between DNC and = Commerce. [Senate Committee on Governmental Affairs, 105^th = Cong., 2d=20 Sess., Final Report of the Investigation of Illegal or Improper = Activities in=20 Connection With 1996 Federal Election Campaigns, ("Senate = Report")=20 "John Huang Moves From Commerce to the DNC," 20 (1998).]

After the 1992 presidential elections, the DNC identified individuals = to the=20 Commerce Department as candidates for positions at the Department. For = example,=20 John Huang, Principal Deputy Assistant Secretary for International = Economic=20 Policy, was hired after the DNC identified him as a "must-consider" = candidate=20 for several positions, including Undersecretary for International Trade = at the=20 Department of Commerce. Id. at 4. Jude Kearney was appointed = Deputy=20 Assistant Secretary for Service Industries and Finance after a DNC = document=20 identifying him as a candidate for that position was received by the = Commerce=20 Department. February 16, 1998 Deposition of Jude Kearney, House = Committee on=20 Government Reform and Oversight, p. 6; House Committee on Government = Reform and=20 Oversight, Interim Report, 105^th Cong., 2d Sess. = ("House=20 Report"), "Yah Lin Charlie Trie and His Relationship With the = Clinton=20 Administration," p. 15 (1998).

Moreover, Commerce Department personnel have come under serious = suspicion of=20 improper pursuit of political objectives in a variety of ways. The = Boston Globe=20 reported that "[b]usinesses that gave Democratic Party committees more = than $2.3=20 million...won coveted seats on U.S. trade missions during President = Clinton's=20 first term." (They also secured nearly $5.5 billion in support from the = U.S.=20 Overseas Private Investment Corporation ("OPIC")). Hohler, = Trade-trip Firms=20 Netted $5.5 Billion in Aid; Donated $2.3 Million to Democrats, = Boston=20 Globe, March 30, 1997, A1.(10)

Prominent DNC fundraisers were placed on official trade missions. For = example:

Mr. [Howard] Glicken even accompanied the late Commerce Secretary Ron = Brown=20 on a 1994 export promotion tour through Latin America. His mere presence = troubled some delegation members: Mr. Glicken's 'wheeling and dealing'=20 reportedly 'evoked squeamishness among a number of officials at = Commerce.' His=20 inclusion thus raised the specter of political considerations possibly = affecting=20 Commerce Department decision-making. [House Report, "FEC = Enforcement=20 Practices and the Case against Foreign National Thomas Kramer: Did = Prominent DNC=20 Fundraisers Receive Special Treatment?", p. 17.]

In addition, Secretary Brown directly participated in DNC fundraising = events.=20 For example, during an official Commerce Department trip to East Asia, = Secretary=20 Brown headlined a DNC fundraiser in Hong Kong on October 18, 1995. = House=20 Report, "Yah Lin Charlie Trie and His Relationship With the Clinton=20 Administration," pp. 24-27. Secretary Brown later headlined a DNC = fundraiser in=20 Washington, DC on November 8, 1995. Id., pp. 27-29; House=20 Report, "Unprecedented Obstacles to the Committee's Investigation," = p.=20 17.

John Huang, who served as Principal Deputy Assistant Secretary for=20 International Economic Policy from July 1994 to December 1995, engaged = in=20 fundraising for Democrats while at Commerce. Senate Report "John = Huang at=20 Commerce" 12 (1998). While serving in the Commerce Department, Huang=20 successfully solicited contributions from four donors. Id. at = 64. Huang=20 was also reportedly involved in organizing a "fund-raising apparatus" = for the=20 Democratic National Committee while at Commerce, and in planning a = Democratic=20 National Committee fundraiser while at Commerce. Id. at = 65-67.

According to the Senate Report, Huang had "frequent" contacts with = Democratic=20 National Committee finance officials while working at Commerce. = Id. at=20 63. "Message slips and long distance calls alone...reveal scores of = calls=20 between Huang and DNC officials." Id. at 64.

While these reported accounts of the Commerce Department's = politicization do=20 not prove that the Census Bureau would engage in political manipulation = of=20 Census 2000 figures, it demonstrates the American people would = reasonably fear=20 such manipulation could occur. In fact, former Commerce Secretary = Mosbacher=20 noted the opportunity for manipulation in his decision = not to=20 use statistical sampling to adjust 1990 census figures. See=20 Decision of the Secretary of Commerce, supra, 56 Fed. = Reg.=20 33583, 33585, 33599-603. The potential for abuse of such opportunity = would come=20 as no surprise to our Founding Fathers, who were well aware of "the = political=20 depravity of man." Madison's Notes, supra, at 272. = This=20 awareness led them to establish a constitutional mandate that the basic = method=20 of conducting the decennial census for purposes of apportionment would = never be=20 entrusted to the discretion of government officials.

CONCLUSION

For the foregoing reasons, amici curiae National Citizens = Legal=20 Network, U.S. Border Control, Lincoln Institute for Research and = Education,=20 English First Foundation, and Policy Analysis Center respectfully submit = that=20 the judgment of the courts below should be affirmed.