The Georgetown Law Journal Online

On March 26, 2018, Commerce Secretary Wilbur Ross announced that the 2020 Census would ask about the citizenship status of every person in the country. Since this announcement, the Trump Administration has relied heavily on broad historical arguments to defend Secretary Ross’s decision. In both the courts of law and the court of public opinion, the Administration has repeatedly insisted that Secretary Ross’s “citizenship question” has a deep historical pedigree stretching back more than two centuries. This historical narrative, however, is misleading where it is not outright false.

This Article—the first scholarly rejoinder to the Trump Administration’s use of history in the citizenship question cases—demonstrates that the Administration’s historical account is flawed in at least two significant respects. First, the census has never asked for the citizenship status of everyone in the country. Secretary Ross’s proposal is therefore historically unprecedented.

Second, the Administration relies on an impoverished view of census history to suggest that Secretary Ross can find a historical warrant for his decision in citizenship questions that were posed only to small subsets of the population at various points in American history. Viewed in context, these citizenship questions originated as sporadic components of an approach to census-taking that the Census Bureau long ago rejected as incompatible with its foundational, constitutional goal of actual enumeration. These early citizenship questions were part of an increasingly sprawling census that was attempting—with mounting difficulties—to pursue two objectives at once: first, counting everyone; and second, collecting additional information that was used for a mixture of collateral statistical, political, and economic objectives. In the wake of the 1950 Census, the Census Bureau rejected this older paradigm of census practice in favor of a radically different model. Indeed, once social science techniques like sampling granted the Bureau the technical ability to identify and remedy substantial problems in its approach to the enumeration, the Bureau overhauled its approach dramatically. As part of this overhaul, the Census Bureau rebuffed citizenship questions as viable items for any census survey designed to obtain a complete count of the population. Due to intervening developments in the American immigration environment, these questions have never been deemed fit to return to the complete-count form; they have been confined solely to sample surveys sent only to subsets of the population.

This Article will show that under these circumstances, the Administration cannot plausibly invoke census history to justify its current decision to add a new, untested citizenship question to the 2020 Census under either the Enumeration Clause or the Administrative Procedure Act. History instead creates a broad presumption against Secretary Ross’s proposal, one which the Administration has not succeeded in rebutting.

Corpus linguistics—the use of large, computerized word databases as tools for discovering linguistic meaning—has increasingly become a topic of interest among scholars of constitutional and statutory interpretation. Some judges and academics have recently argued, across the pages of multiple law journals, that members of the judiciary ought to employ these new technologies when seeking to ascertain the original public meaning of a given text. Corpus linguistics, in the minds of its proponents, is a powerful instrument for rendering constitutional originalism and statutory textualism “scientific” and warding off accusations of interpretive subjectivity. This Article takes the opposite view: on balance, judges should refrain from the use of corpora. Although corpus linguistics analysis may appear highly promising, it carries with it several under-examined dangers—including the collapse of essential distinctions between resource quality, the entrenchment of covert linguistic biases, and a loss of reviewability by higher courts.

Almost two decades ago, I argued in an academic publication that patent law was on a collision course with the constitutional guarantees of the First Amendment. At the time, I fully expected this provocation to lead to a robust discussion regarding patent law’s intersection with freedom of expression. After all, such a discussion had been going on about patent law’s nearest cousin, copyright law, for some time. But virtually nothing more was said on the subject until this year, when I returned to the topic, and was surprised to discover that Professor Chiang has also taken up the topic in Volume 107 of The Georgetown Law Journal. I now dare to hope that the contemporaneous publication of two parallel analyses of patent law’s compatibility with the First Amendment means that the long-delayed conversation on this topic has at last begun.