Noncompliance with the 1990 census was massive: the Wall Street Journal reported on May 21 that only 75 percent of the forms had been filled out and sent in, “down from 90 percent a decade ago.” That’s good. Passive resistance against such intrusions is the least we should expect of ourselves as citizens.

Thirty years ago I received the lengthy sociological survey that was sent to every fourth house in the 1960 census, and I refused to comply. I also wrote an article thumbing my nose at the “Snooper State” (see “The Fourth House,” National Review, May 21, 1960). Although it is next to impossible to get a constitutional challenge into the courts, I succeeded on the strength of what I thought at the time was rather Menckenesque ridicule and mockery. Someone in the Census Bureau clipped my article to an interoffice memo saying he didn’t think “Rickenbacker should be allowed to violate the law in this manner.”

We got to court, all right, but the government wouldn’t produce the documents showing the connection between the article and the prosecution. There went our defense under the First Amendment. (Subsequently, a similar defense was mounted in a California case and carried the day, but the First Amendment defense is tactical only.) We also pled the Fourth Amendment, and here I thought we held the high ground. After all, the government had to show that the “search” was “reasonable.” To my knowledge, nobody has ever shown how the Constitution authorizes the forcible extraction of information from a householder concerning his toilets and so on, and as for “reasonableness,” we called as our witness Mr. Robert Burgess, who had been director of the Bureau of the Census during the 1960 go-around. The judge, knowing full well that the government must prove the search reasonable, tried to find out from Mr. Burgess what the purpose of the questionnaire was. The dialogue (taken from the trial transcript) must be seen to be believed.

The COURT: What is the purpose of it?

 

The WITNESS: Well, it seemed to be carried out as a simplification of the training and of the routine which becomes enormous.

The COURT: What was the purpose of getting that particular information?

The WITNESS: Oh, that information had been obtained before 1950. It was on the census, and, some of the questions on the census, although taken at the same time by any given enumerator from a given household, some of them were, as they came to those questions, they would say these are—we will skip these for this household and—

The COURT: Well, what was the purpose for this somewhat extensive questionnaire in 1960?

The WITNESS: Well, those questions were asked before in 1950; for instance, questions mostly asked. Only minor changes from census to census in the question.

The COURT: What was the purpose for getting all that information? What was done with it?

The WITNESS: Well, it was summarized, as it had been in 1950 when sampling was done in a different procedure. These were questions that were explored very carefully through committees, one within the government and one of experts outside and one of users outside, “What changes would you like and the information you would get,” and we turned down a very considerable number of those questions, requests for extensions of information, both within the Government and outside the Government. They wanted more information for house—for guidance, as an aid to housing, for instance. By the way, if that—

The COURT: Was that the general purpose of that questionnaire, as an aid to housing?

The WITNESS: You see, the Housing Administration gives Government aid in certain cities for improving the housing conditions.

Believe it or not, that gibberish was allowed to stand as proof of reasonableness. I was convicted, given a 60-day jail sentence (suspended), and fined $100. One beneficent result of my little campaign was to stir the Congress to remove the jail sentence from the census statute; the $100 fine still applies to the uncooperative but is almost never assessed.

On April 24, 1969, I had the honor of testifying before the late Senator Sam Ervin’s Subcommittee on Constitutional Rights of the Senate Judiciary Committee. The senator was holding hearings on S. 1791, a bill “to secure personal privacy and to protect the constitutional right of individuals to ignore unwarranted requests for personal information.” My testimony ran seven pages in the transcript, some of it pretty hot stuff if I do say so myself, but I’ll quote only a few lines narrating the further history of the court case.

In October 1962 the United States Court of Appeals for the Second Circuit affirmed the judgment of the lower court. I appealed to the Supreme Court for certiorari and that appeal was rejected. It is interesting to note that the opinion of the Court of Appeals was written by the Honorable Thurgood Marshall, now a distinguished member of the Supreme Court. In a recent decision Mr. Justice Marshall came forward to protect the right of privacy of the citizen in his home—at least inasmuch as the citizen chooses to possess and presumably enjoy pornographic films, Everyone who is devoted to the idea of individual liberty must applaud Mr. Justice Marshall for his recent decision. But a growing number of American citizens are becoming uncomfortable and even in many cases almost mutinous in a society that expresses its concern almost exclusively in terms of the liberty of pornographers and the privacy of perverts and the convenience of criminals. Why, I keep asking myself, is a law-abiding citizen unprotected in his home against the irrational and capricious inquisitions of the government when all manner of degraded. suspect, and parasitical gentry enjoy the express protection of our highest courts?

And there, as far as I know, the matter has stood until now. But a new wind is blowing, cold and clear from the mysterious peaks of the Ninth Amendment. (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) I recommend to all a close reading of The Rights Retained by the People: The History and Meaning of the Ninth Amendment, edited by Randy Barnett (George Mason University Press, 1989). This collection of excellent scholarly and lawyerly studies shows that the Ninth Amendment is a sleeper, our ace in the hole. From 1791 to 1936, as Calvin Massey points out (p. 291), there appears to have been no scholarly commentary on the Ninth Amendment. A veritable avalanche of studies has appeared since 1981, mainly in the law journals. This sudden upsurge of interest in an amendment that seemed to defy comprehension for a century and a half may be associated with the equally sudden upsurge of the language of “rights” as shouted in the streets since 1960 or so. It is associated also, I think, with growing popular discontent with a government that seems to be pressing against the citizen from every angle.

Open your ears and you will hear the vox populi calling for its rights. And these are the unenumerated rights, the ones protected only by the Ninth Amendment: women claiming a right to their reproductive function (at the expense of the fetus, no less); people of all sexes—all three or four sexes now recognized by the Bureau of the Census—claiming the right to die (at the expense of suicide); people claiming the right to breathe (at the expense of the next fellow’s right to smoke—which he claims as a right); the right to peace and quiet (death to boom boxes!); the right to be let alone. In a day or two of attentive listening you will hear all manner of rights claimed with perfect confidence by people who have no idea what the Ninth Amendment says. And yet when they get to court it may be the Ninth, and nothing but the Ninth, that saves them.

The obnoxious prying of the Census Bureau is a terrific affront to a right that everyone understands, the one I just mentioned, the “right to be let alone,” as the man in the street says. You know the argument; “Look, I’m at home with my wife and kids, I get along with my neighbors, I pay my taxes, I haven’t done anything wrong, I have a right to be let alone, dammit.”

That is a Ninth Amendment right par excellence and if I should be so lucky as to be taken to court by the government for my failure to cringe and obey when faced with a census questionnaire, I’ll stand foursquare on the Ninth—this time around.

For the hallmark of a Ninth Amendment right is that it clearly antedates the formation of the federal government. A woman’s right to kill her fetus is a rather freshly discovered right. But the right to be let alone is universally seen to be a basic aspect of civil society. William Pitt the Elder (1708-1778) said it best: “The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England may not enter—all his forces dare not cross the threshold of the ruined tenement.”