We’ve made it through another election season, and, somehow our little-d democracy (or constitutional compound republic, depending on your perspective) remains intact despite rampant warnings of voter fraud and voter suppression.
And we did it even though our Constitution doesn’t even contain a right to vote.
Wait . . . what?
Yes, you read that right — the United States Constitution doesn’t expressly guarantee the right to vote.
Now, before you get too up in arms, realized that the Constitution does have provisions dealing with the right to vote indirectly, including:
- The Fifteenth Amendment, which prohibits racial discrimination in voting.
- The Nineteenth Amendment, which prohibits gender discrimination in voting.
- The Twenty-Fourth Amendment, which prohibits poll taxes.
- The Twenty-Fifth Amendment, which prohibits age discrimination in voting after 18.
And, of course, the Constitution contains numerous other provisions discussing the election of legislative representatives, the President, the electoral college — all of which quite clearly assume the existence of a right to vote.
But nowhere in the Constitution does it say that Americans are granted the a right to vote free from infringement by state and federal governments. In short, there is no, “Congress shall make no law abridging the fundamental right to vote of all American Citizens” . . . or something like that.
But that comports with history, right?
After all, for a number of years after the American Founding, the right to vote in many states was limited to white males who owned real property. An affirmative right to vote for all citizens would have been inconsistent with those practices.
Still, if the Constitution contains no express right to vote, the above list demonstrates very convincingly that there’s quite clearly an enforceable right to vote inherent in the structure of the document itself. And constitutional amendments and changing attitudes have whittled down the class of people which states can exclude to, essentially, non-citizens and criminals.
But some are saying it’s about time we constitutionalized an affirmative right to vote, spurred into action after 50 years of relative complacency by the Supreme Court’s decision in Shelby County v. Holder (striking down the pre clearance portions of the VRA and a rash of new state voter identification laws).
If voting were upheld as an affirmative right in the United States, as it is in places like South Africa, then those citizens without a car, those who because of old age or a disability or limited financial means lack easy access to their polling place, would nonetheless be “insured” that they, too, can participate. In a democracy, voting, after all, is not a mere privilege based on wealth or influence.
By amending the Constitution to enshrine an explicit right to vote, states would be required to prove that all difficulties, restrictions and burdens to voting served a “compelling” interest. Such an amendment would ensure uniform standards and prohibit laws that make it harder to vote.
Without an amendment that explicitly affirms the constitutional right to vote in national elections, politicians will feel free to enact restrictive voting policies that would block millions of citizens from the ballot box. We would never tolerate this kind of deference to politicians who grab other rights from us. Shouldn’t we protect voting in the same way?
This is an interesting position (it always is when the US government is compared unfavorably to that of South Africa — another place I know and love).
In many ways the right to the ballot is the right on which all other depend. It does seem slightly incongruous to guarantee the Freedom of Speech in absolute language (even if the Supreme Court has interpreted the thunders, “Congress shall make no law…” into a much more timid “Congress may make some laws…”), while speaking of voting in only indirect terms.
Putting aside the practical reality that no constitutional amendment is possible right now: Why not a 28th Amendment? “Congress shall make no law abridging the fundamental right to vote of all American Citizens,” or a more elegantly phrased equivalent?
After all, who could possibly object — besides shady political operatives looking for an illegitimate electoral advantage — right?
Me, for one.
It’s true that constitutional amendments put certain fundamental principles out of the reach of shifting popular majorities. But they don’t put things “off the table,” so much as they move them — from the political table to the judicial table.
Despite often strong and conclusive language, there is no constitutional principle of which I am aware that is clear and absolute. Each one is parsed, defined, and interpreted — first by individual actors (whether legislative, executive, of just ordinary citizens) and then by the judiciary, in the context of specific cases.
This is especially true with grants of affirmative rights, which are notoriously difficult to guarantee (See, e.g., South Africa), and which our Constitution largely avoids (though I acknowledge there are many cases where the line between positive and negative rights blurs out of distinction in practice).
In short, there’s no guaranty that adding an affirmative right to vote to the Constitution would guaranty American citizens anything more that what people already possess when it comes to voting rights. And, in fact, the proposed amendment would be largely duplicative of the Voting Rights Act — which, despite rumors of its death is still very much alive — that contains provisions outlawing discrimination of numerous types that can be enforced by a lawsuit, the same mechanism of enforcement that would exist for a constitutional amendment.
It’s interesting to note that, despite adding increasingly expansive Constitutional provisions related to voting for nearly 100 years, it wasn’t until the 1960s, with the passage of legislation like the Voting Rights Act and the Civil Rights Act, that progress began at an accelerated rate — spurred on by legislation that was targeted, considered, and implemented in a careful way that is simply impossible for Constitutional amendments.
Yes, it might look good to have an affirmative right to vote in the Constitution, but it’s unnecessary, an inefficient means of guaranteeing the right, and would propel the Supreme Court even more into the forefront of American politics.
As I’ve written elsewhere:
The beauty and power of the American Constitution is in its simplicity and sparseness, and, to a degree, in its laser focus on (1) combining power, and (2) preserving the conditions necessary for people to exercise their political rights. Its beauty lies in the continued flexibility of its core provisions, even when the Supreme Court has given them an inflexible construction. It is the enduring simplicity of our Constitution that allows us to know it intimately and encourages us to take its provisions seriously.
A teenager can name off a number of the core principles and protections set out in our Constitution. Political power is derived from the people. Every person has a right to speak freely. Every person has a right to worship according to their own conscience. Every person is entitled to the equal protection of the laws. Every person has the right to be free from unreasonable searches and seizures. No person can be deprived of life, liberty, or property without due process of law or face cruel and unusual punishment for any crime.
Every new constitutional amendment comes with costs — in the sense that a matter is removed from the domain of the people and brought into a domain protected from political action. It is no small thing to place such limits on our political representatives. It circumscribes the rights of future generations to a sphere of action they did not consent to when the reasons for the limitation may not have been timeless but, rather, tied to circumstances that have since passed. Every constitutional amendment expands the role of the Supreme Court in political governance, giving it the right (and duty) to conclusively determine an aspect of America’s political destiny. It also increases the likelihood that the Court will be placed front and center in American politics, in opposition to political branches, which has the potential to undermine the Court’s institutional mission and legitimacy. It is likely that a successful amendment effort cannot be undone. And it often comes with only uncertain benefits. As well-meaning Americans found out with Prohibition, the Constitution is no silver bullet for social change.
The writ large battle for voting rights has been fought and won. Skirmishes will continue to break out from time to time, and we have the tools to deal with them as they arise. When it comes to the Constitution (at least in this case) let’s leave well enough alone.