Are today’s liberal politicians willing to go to the mat for a seemingly old-fashioned, civil-rights era throwback like the right to vote? If they care about preserving access to the franchise in the face of the many newfangled voting restrictions that conservatives are now aiming at minority, young or poor voters, they will. And, if they care about advancing the ideals of an inclusive American democracy, they must. When the members of the Constitutional Convention signed the United States Constitution on September 17, 1787, the democracy we have now was unfathomable. Today, the right to vote is not determined by property ownership, skin color, gender or wealth — as it was legally at the birth of our Constitution and for many decades after. What has remained constant during America’s democratic metamorphosis, however, is the absence of an affirmative right to vote. On this Constitution Day, I echo the call to amend our Constitution so that it includes an affirmative right to vote. Proposals to amend the Constitution to include an affirmative right to vote are usually taken most seriously at the time of general elections, especially for the presidency. That’s when the public is most aware of the frailties of our democracy. However, as we celebrate the founding document that has served as a model for democracies the world over, we must consider how to fill its hollow areas.
In the five instances that the right to vote is mentioned in the Constitution, it is presented as a negative right in amendments to the original document. The 14th Amendment, for example, which was ratified after the Civil War in 1868, speaks of reducing states’ congressional representation when age-eligible males are denied the right to vote for impermissible reasons. The 15th Amendment, ratified soon after, provides that the “right of citizens of the United States to vote shall not be denied or abridged. . . on account of race, color or previous condition of servitude.”
The 19th Amendment, ratified 50 years later, after World War One, gave women the vote, saying the franchise could not be denied because of gender. Then, responding to the civil rights movement, the 24th Amendment prohibited the poll tax, saying the right to vote could not be denied on account of failure to pay any poll or other tax. The most recent amendment involving the right to vote, the 26th, in 1971, says age cannot be the basis of vote denial for citizens 18 years or older.
Since 1886 the Supreme Court has held that the right to vote is a “fundamental political right, because [it is] preservative of all rights.” However, the tortured history of the right to vote and the government’s reluctance to extend it to citizens beyond its original beneficiaries is demonstrated by these amendments that span a century.
Taken together, these laws establish that voting by citizens age 18 and older cannot be restricted on the basis of race, gender or failure to pay a tax. They do not, however, clearly state a positive right to vote.