I ran into a new version of Constitutionalism today: apparently the fact that the Constitution doesn’t come right out and say “the People have a right to vote” (or a near synonym) is an excuse for at least some to argue that there “is no right to vote in the Constitution”. Thus ignoring the many constructions that talk about voting, including a couple Amendments that talk about not abrogating the right to vote–which wouldn’t make a lot of sense unless there were such a right.
Still, I learned some things today:
- the right to vote is not explicitly granted in the US Constitution
- some people think that this somehow puts voting in a completely different category than, say, freedom of the press—and thus restricting voting is [legally] no big deal.
- Conversely, I’ve found arguments that go the other direction: since the courts have upheld all sorts of restrictions on voting, that clearly means it can’t be a “right”, whatever it is. I suspect this argument goes hand-in-hand with the argument that the 2nd Amendment means we can’t have any restrictions, no matter how slight, on gun ownership. And yet we have all sorts of restrictions on press freedom, despite it being an explicitly-granted right.
- Even people arguing that we should have a Constitutionally-guaranteed right to vote (via an amendment), and that this would help us make sure “everyone” gets to vote, appear to take it as a given that the incarcerated would forfeit that right. Interesting exception (or blind spot?).
My conclusion (n.b. I am neither a Constitutional scholar nor a lawyer specializing in any relevant area):
There is a “right to vote” implicit in the government that our Constitution sets up, but who exactly is granted that right is vague, and exactly what that right includes is vague. Ideally, rights would be absolute—but reality rarely allows such B&W clarity, so the mere fact that there is vagueness doesn’t necessarily mean it can’t be labeled a “right”. Even in the case of rights that are granted explicitly and without qualification, we have realized over time that society may require some nuance in their application.
Finally, what would happen if we allowed prisoners to vote? Would it really be that bad? I suspect that our prison population would finally start to decrease—that’s a pretty significant voting bloc that has a vested interest in making our criminal punishments less harsh, and they might be able to persuade enough other people to achieve a majority on some of the more extreme cases (like, say, pot possession).
A couple citations:
The [Supreme] Court affirmed the district court’s interpretation that our Constitution “does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote.” And it’s state legislatures that wield the power to decide who is “qualified.” Alexander v Mineta
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.
The right of citizens of the United States to vote…shall not be denied or abridged…[for] failure to pay any poll tax or other tax. The Constitution