The US Constitution -- the oldest and most outdated in the world -- does not directly confer any human or civil rights upon the people. In particular, the Constitution does not guarantee your right to vote.
The word “vote” appears in the Constitution as originally drafted only in relation to how representatives, senators, and presidential electors perform their duties. Representatives vote. But the people’s vote is not mentioned.
Even in the Bill of Rights, which made a slew of individual rights explicit, the Constitution did not mention a right to vote. The right to assemble and to petition government was established. The right to trial by jury (in civil disputes where the value exceeds $20), to due process of law, to confront witnesses in criminal cases, to keep and bear arms? Yes. Voting rights? No.
Let's see how that works and how it will certainly affect any high court decisions pertaining to the willful suppression of voter's rights.
Finally, take the test at the end and see if you know how your voting rights compare to those of the rest of the world.
In order to craft a constitution that would be ratified by all the states, the authors ultimately had to appease the slave-owner states. They had no intention of telling South Carolina that free blacks could vote. Nor were they about to tell Massachusetts that it would have to stop blacks from voting. Instead, the authors punted such authority to the States, allowing them to control what currently passes for democracy in America.
The drafters of the Constitution had no idea what the future would bring -- and they were well aware of that. They were most concerned that the constitution they were writing would become "entrenched" and cause a national crisis.
"Constitutional entrenchment" refers to situations in which a constitution or provision thereof cannot be amended or repealed at all, or cannot be amended or repealed except with some sort of super-majority. Such entrenchment raises issues of generational sovereignty insofar as the constitution in question, enacted by an earlier generation, operates to limit the political freedom of later generations.
The legitimacy of constitutional entrenchment was most famously challenged by Thomas Jefferson in a series of letters, the best known of which is his September 6, 1789 letter to James Madison. In the course of exploring a wide range of generational sovereignty issues, Jefferson asserted:Sadly for Americans, Jefferson's rational view was not heeded in the US, and thus the people find themselves up the 21st century river without a modern constitution to use as a paddle. As one of the only nations on earth without a modern constitution, Americans are subjected to economic exploitation that should have gone out with slavery. The US is the only developed nation that placidly allows privately-owned corporations to asset-strip both the citizens and the commonwealth through predatory capitalism.
We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation to another.
No society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.
Every constitution, then, and every law, naturally expires at the tend of 19 years [the period by which Jefferson computed that the majority of the voting public is replaced, by the natural processes of birth and death, with a new majority]. If it be enforced longer, it is an act of force and not of right.
Ergo, this richest country in the developed world has both the highest rate of child poverty and the lowest rate of life expectancy. The US Constitution explicitly allows such injustice against citizens to exist without cause for remedy.
Our voting-rights system is a sedimentary formation, its layers laid down and intermingling over centuries with federal and state constitutional provisions, laws, and regulations. Following a civil war, eight constitutional amendments, two monumental protest movements, the youthquake of the 1960s, the transformative lawmaking of Congress in 1965, and the convulsions of the 2000 presidential election, most Americans feel reasonably confident that they have something approaching a right to vote. But on a national level, that right might best be understood in the negative.
The Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments to the Constitution provide a measure of protection. The vote cannot be denied to a citizen on the basis of race, gender, age (once the voter is over eighteen), or the ability to pay a poll tax. Beyond that, whether and how one has a right to vote is largely a matter of state law.
If there was any doubt of that, the U.S. Supreme Court made it clear in December 2000, in relation to presidential elections in Bush v. Gore:
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.HARPERS
Patched together like an old tire, the Constitution is essentially helpless to definitively address civil or human rights in the modern world. It is easily, and often, manipulated by any actor who gains the political power to alter it. Since no rights are conferred directly to the American people, rights can be compromised or revoked continuously. And they are. Consider FISA or the Patriot Act -- or the 2000 election and its devastating results to the country.
It is little wonder that Americans are stressed to the breaking point and feel themselves threatened by their own government. And, in an Orwellian twist, Americans on both sides of the deliberate political divide are taught to recoil in horror at the very thought of purposely crafting a functioning constitution -- while all other nations continuously do every twenty or thirty years. Americans have been convinced that if they open a national discussion, evil actors will swoop in and take all the rest of their imaginary rights away.
The world's constitutional scholars are bemused by this panicked thinking that has collective mind of America in its grip. They do not seem to realize that few Americans have ever read a modern constitution and have no idea of how they are constructed -- or how the process of updating or rewriting a constitution works. Most Americans cannot understand that constitutions exist primarily to benefit the people -- perhaps because the US Constitution does not exist at all for that purpose. It was written primarily to benefit the states and private industry.
But, let us return to your rights as a voter, and how the structurally flawed constitutilon affects American democracy. Modern scholars express dismay on this point:
Americas tolerance for disenfranchisement in the twenty-first century is quite exceptional. The constitutions of at least 135 nations-including our fellow North American countries, Canada and Mexico-explicitly guarantee citizens the right to vote and to be represented at all levels of government. In fact, every new constitution adopted over the past decade makes the right to vote the very foundation of government.
Constitutional silence on a basic right to vote leaves the United States in miserable, backward company. By my count, only Azerbaijan, Chechnya, Indonesia, Iran, Iraq, Jordan, Libya, Pakistan, Singapore, and, of course, the United Kingdom (whose phony doctrine of "virtual representation" the colonists rebelled against centuries ago) still leave voting rights out of their constitutions and therefore to the whims of state officials. This sin of omission violates-to the extent that anyone cares-the International Covenant on Civil and Political Rights and numerous other international conventions inspired by the democratic triumph over totalitarianism in World War II.
It is time for American progressives to engage in serious constitutional politics on behalf of the right to vote. This is the only way to redeem the chaos of the 2000 presidential election and to begin to ensure that such an assault on democracy will never be repeated.
Jamin B. Raskin
Clearly, Mr. Raskin seems unaware of how terrified Americans are to address constitutional updating. I don't think he realizes the fetish aspect that surrounds the US Constitution in the minds of Americans. All scholars that I have read seem to miss the superstitious cult-like thinking that holds this old parchment as a physical object of worship -- rather that regarding it as the quaint historical artifact that it is.
Next, we have an example of how a Canadian scholar discusses the recent crafting their modern constitution, when it was clear the time had come:
Until 1982, there was no constitutionally protected right to vote in Canada. Instead, the right to vote was provided by ordinary legislation which, at times, excluded parts of the population. What began as a right conferred only on white male landowning citizens, slowly evolved to extend to women, aboriginals, ethnic minorities, and all economic classes of people.
Chief Justice McLachlin of the Supreme Court of Canada, reflecting on the history of Canadian democracy, referred to it as a “history of progressive enfranchisement.” She called it a “steady march to universal suffrage [which] culminated in 1982, with our adoption of a constitutional guarantee of the right of all citizens to vote in s. 3 of the Charter.”
The right to vote is unlike other constitutional rights and freedoms, such as equality rights, freedom of religion and conscience, and the right to life, liberty and security of the person. ... It may be regarded as a belonging to a higher order of rights that, in the words of Supreme Court Justice Bastarache, are clearly placed “at the heart of our constitutional democracy.”
Some American scholars -- like the one below -- still believe that yet another tire patch, in the form of a constitutional amendment, will do the trick to guarantee Americans the right to vote. But, as Ruth Bader Ginsburg correctly pointed out, the US Constitution is now considered an "entrenched constitution" and can no longer be amended through political means.
The US Constitution does not have explicit, affirmative language, as does the South African Constitution, for example, that every citizen who is over the age of 18 years old has the right to vote. Constitutions in most of the world’s democracies have that language; ours does not.
The U.S. Constitution never explicitly or affirmatively ensures the right to vote, though it has many clauses and amendments detailing ways people cannot be denied the right to vote. For example, you cannot preclude voting rights on the basis of race or gender. Voting cannot be predicated on paying a poll tax. In other words, once having granted the right to vote, those amendments say governments may not take it away on the grounds of certain discriminatory criteria.
State and local governments can – and do – disenfranchise individuals and groups of citizens. Many ways of denying voting rights are entirely legal under the existing but limited federal laws that touch on voting.
Over the last several years, the Supreme Court has been moving slowly but surely farther and farther away from treating the right to vote as a fundamental right that is owed the highest degree of respect and protection. A constitutional amendment would level the playing field so that the right to vote would not be subject to the whim of any political party.
Judith Browne Dianis
TEST: Do you know how your voting rights compare to those of the rest of the world?
In a white paper sponsored by the Democracy Coalition Project entitled "The International Status of the Right to Vote" [PDF] author Alexander Kirshner surveys the constitutions of 119 electoral democracies. Of these constitutions, 108 are modern constitutions that guarantee the right of their citizens to elect their political representatives.
The United States is not one of the 108 nations.
Over the past three decades — a period of time in which we have witnessed an astonishing increase in the number of politically free nations — every single new constitution has established a citizen’s entitlement to vote.
United States citizens, however, do not have an enfranchised right to vote. Its outdated constitution is structured in such a way that this right cannot be guaranteed.
Instead, the US constitution allows individual states to curb citizens voting rights at their will. That was the price enacted by the slave-owner states when the constitution was originally written.
The right to vote is a well-established norm of international law.
Significant international treaties, including the International Covenant on Civil and Political Rights and regional agreements such as the American Convention on Human Rights, enshrine citizens’ claim to universal and equal suffrage. Regional human rights systems in Europe and the Americas have mechanisms to enforce the right to vote that have been applied in a limited fashion.
The language of constitutional directives on voting right [of the 119 surveyed] fall along a broad spectrum — on one end are those that simply establish the right of citizens to vote for constitutionally defined electoral positions, on the other end are those constitutions which not only guarantee universal suffrage, but also stipulate that that this fundamental right exists at every level of government and/or curb the ability of the government to reduce the size of the electorate.
Kirshner divides voter rights, as expressed in each nation's constitution, into four categories, depending on how they conduct voter's rights:
- Those in which there is no affirmative constitutional right to vote or no
legislation with similar weight.
- Those that establish universal suffrage for the election of sovereign bodies—
such as a parliament.
- Those that provide a general and independent right to vote.
- Those that not only provide for a right to vote, but also specify government
obligations to facilitate citizen participation and/or those that limit the kinds of
restrictions the state can place on who is eligible to vote.
Can you guess in which category, below, the US Constitution falls?
Countries with Robust Right to Vote Provisions
Some constitutions go beyond asserting a right to vote by explicitly curbing the state’s power to limit those who are eligible to vote. An example of this is Article 32 of the Peruvian Constitution. While the Peruvian constitution allows the suspension of the rights of citizenship—and thus the right to vote—it also constructs additional barriers against the winnowing of those eligible to vote. Article 32 states that:
Citizens enjoying their civil capacity have the right to vote. The vote is personal,equal, free, secret and obligatory until one is seventy years old. It is optional after this age. All acts that limit or prohibit citizens from exercising their rights are null and punishable.This type of constitutional clause, which is becoming more common, demonstrates the
trend towards the acceptance of international standards of human rights—and thus the
right to vote—as a standard component of domestic law.
Countries with a General Right to Vote
A stand-alone right to vote is the international standard in democratic constitutions. A
All citizens who are over 18 years of age have the right to vote, except for the incapacities laid down in general law. The exercise of the right to vote is personal and constitutes a civic duty.Other constitutions within this group specify that the tenets of universal suffrage should be extended to all elected positions. Bulgaria’s constitution exemplifies such statutes.
Article 10: All elections and national and local referendums shall be held on the basis of universal, equal, and direct suffrage by secret ballot.Some constitutions go beyond asserting a right to vote by explicitly curbing the state’s
power to limit those who are eligible to vote. An example of this is Article 32 of the
Peruvian Constitution. While the Peruvian constitution allows the suspension of the
rights of citizenship—and thus the right to vote—it also constructs additional barriers
against the winnowing of those eligible to vote. Article 32 states that:
Citizens enjoying their civil capacity have the right to vote. The vote is personal, equal, free, secret and obligatory until one is seventy years old. It is optional after this age. All acts that limit or prohibit citizens from exercising their rights are null and punishable.Other constitutions, like that of Suriname, not only attempt to establish tests on the types of restrictions considered constitutional, but also establish the affirmative obligation of the state to promote electoral participation:
Article 54: The State is obliged to register those with voting rights and to convoke them to participate in the elections. The registration of the voters shall serve no other purpose.In addition to the type of guarantees just described, a number of Latin American and
Eastern European constitutions such as Chile, Ecuador, the Czech Republic and Slovakia, grant ratified international human rights covenants constitutional or greater status in domestic law.
As elaborated in the previous sections, the predominant international and
Promulgated international agreements, the ratification of which has been approved by the Parliament and which are binding on the Czech Republic, shall constitute a part of the legal order; should an international agreement make provision contrary to a law, the international agreement shall be applied.This type of constitutional clause, which is becoming more common, demonstrates the
trend towards the acceptance of international standards of human rights—and thus the
right to vote—as a standard component of domestic law.
Countries with Universal Suffrage for the Election of Sovereign Institutions
In many constitutions, the right to vote is not expressed as an individual right, but
Article 41: The National Assembly is composed of members elected by universal, equal, direct, and secret ballot by the citizens.For these states, the existence of a right to vote for representatives in institutions other than those specified—for example state or local government—is left to the legal
interpretative structure of that country.
Countries with No Constitutional Right to Vote
Eleven democracies have no explicit constitutional right to vote. Until they established
* If you've read this far, you've found the United States and you now know what your voting rights are.
It is my fervent hope that, in my lifetime, Americans will conquer their implanted fears and superstitions about the Constitution and take control of their national destiny by crafting a new constitution designed to benefit the people rather than the exploiters -- to do this for themselves and for all the generations that follow.
Every nation in the world has led the way and there are wonderful constitutions to work with.
The power to do this truly does lie with the people.
It happens all the time, peacefully, everywhere, throughout the world.
h/t john de herrera