Academic journal article Texas Review of Law & Politics

Who Should Vote?

Academic journal article Texas Review of Law & Politics

Who Should Vote?

Article excerpt

I. INTRODUCTION

In America, who should be allowed to vote? This fundamental question has been resolved in most important respects, but some issues remain unresolved, and are the subject of this article and the accompanying article by Alan Gura.1

This issue has both substantive and procedural aspects. The procedural aspect is: Who should decide who votes? The substantive issue is: What should that decision be?

The procedural issue is resolved primarily by Article I, Section 2 of the Constitution.2 As discussed infra,3 the matter is generally left to the States, except where the Constitution itself forbids the exclusion of voters on specific grounds, such as race,4 sex,5 failure to pay a poll tax or other tax,6 and, for those eighteen years old or older, age.7

Regarding the substantive issue, the trend generally in this country has been toward excluding fewer and fewer people from the franchise.8 We have become more and more democratic. Indeed, one could say that asking who should vote is no longer the question, since the presumption is so strong that the answer is, "Everyone." Rather, the way we really look at this question is: Who should not be allowed to vote?

Why do we presume that nearly everyone should be allowed to vote? This article is not about political theory, but two answers are plausible. First, near-universal suffrage leads to better government. The alternative to near-universal suffrage is limiting political power to a smaller group, but it is not obvious how one chooses a ruling elite. By birth? By wealth? By IQ? It is not at all clear how to choose wise governors. William F. Buckley, Jr., famously observed, "I should sooner live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University."9 Exactly. Universal suffrage is to governance what an index fund is to investing-the recognition that the best we can do is to diversify. Universal suffrage is the worst possible system, except for all the others.10

The other answer is that we allow just about everyone to vote not because we think it makes government wiser but because subjecting someone to rule by a government without granting him any voice in that government is wrong. "No taxation without representation" and all that.

If those are the two basic reasons for universal suffrage, then exceptions to this rule would be appropriate if neither of the two reasons is clearly applicable to a particular set of voters. Consequently, two categories of disqualifications exist that even the most zealous democrat would concede are appropriate.

First, while we do not insist on a particular level of education or IQ for voters, one senses that, if the vote is to mean something, it must be cast by someone who is rational and can be presumed to have at least some level of understanding of the world. This standard is a low threshold, to be sure. We do not, however, generally trust the judgment of some people, such as minors and those adjudged mentally insane. These groups are barred from voting.11

The second general disqualification is for people who cannot be trusted to have the country's interests at heart. People have a right to have a say in governing themselves, but only if we are reasonably sure that they will exercise that right in good faith-- that they share a common commitment to our nation, our government, and our laws. Some people are perfectly intelligent and rational, but they lack a sufficient stake in our common enterprise, our public thing, res publica, republic. To take an extreme case, it would have made no sense to allow Germans-- actual Germans living in Germany, not German Americans-to vote in U.S. elections during World War II.

Likewise, Canadians, Mexicans, and Europeans are not our enemies and are certainly affected by what our country does, but they are not given a say in deciding who runs our country. …

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