Academic journal article The William and Mary Bill of Rights Journal

The Right to Vote: Is the Amendment Game Worth the Candle?

Academic journal article The William and Mary Bill of Rights Journal

The Right to Vote: Is the Amendment Game Worth the Candle?

Article excerpt

The Constitution doesn't guarantee Americans the right to vote. That always comes as a surprise to non-lawyers. But you will search the Constitution in vain for any such guarantee, as the Justices of the Supreme Court cheerily reminded us in Bush v. Gore} What the Constitution contains is a series of thou shalt nots. Thou shalt not deny the right to vote on account of race* 1 2 or sex.3 Thou shalt not impose poll taxes.4 Thou shalt not prevent eighteen-year-olds from voting.5

It's difficult to develop a robust case law when you only know what you can't do. For this reason, several academics and reformers have proposed amending the Constitution to include a right to vote. They argue that a constitutional amendment would produce any number of progressive goodies, including an end to partisan gerrymandering, strict policing of burdens placed on the right to vote, and an expansion of the franchise.6

Count me as skeptical. As the Doubting Thomasina in this symposium,7 * * * 111 should emphasize that I would be delighted if a robust right to vote were already enshrined in the Constitution. I would be just as delighted if I possessed a magic wand and could put one there. But in a world without either a textual guarantee or a ready cache of magic wands, I have substantial doubts as to whether the amendment game is worth the candle. It is unlikely that an amendment would achieve what reformers have promised it will achieve. Indeed, even when one looses one's imagination on the broader possibilities associated with amendment, it is hard to imagine we could reap benefits substantial enough to outweigh the extraordinary costs associated with a successful amendment campaign. The organizational muscle and resources to push for reform are in short supply, and it would be better for those limited resources to focus on reforms that are more discrete but easier to achieve.

Part I explains why I'm skeptical that a right to vote will produce enough change in the system to justify the costs involved, especially when compared to the more conventional and less costly alternatives for effecting change. If an amendment enshrining the right to vote looks anything like its cognates in the Constitution, it will be thinly described, maddeningly vague, and pushed forward by self-interested politicians. At the very least, it's unlikely to persuade judges to mandate large-scale reform. Judges are conservative creatures, at least in the Burkean sense.8 They are typically loathe to upend a system based on a vague textual guarantee. And a vague textual guarantee is as good as it's likely to get. Nor is it likely to matter if the amendment gives Congress more room to maneuver given that body's unwillingness to do much with the power it already possesses.

Part II attempts to break out of a cautious law professor mold and find "scope for imagination," to quote Anne Shirley.9 If we look past the traditional rationales for amendment, one can imagine at least two other benefits that might come from an effort to amend. The first is that a robust social movement might alter the way that all Americans, including judges, think about the right to vote. If that's the case, things will change for the better, and it won't much matter what the text of the amendment says-it might not even matter if the text of the Constitution is altered in the end. The second is the possibility that amending the Constitution might help lend some coherence to judicial doctrine in the elections arena by providing judges tools they sorely lack in election law. The first offers a substantial payoff but depends on steep odds; the second seems likely to follow from amendment but represents a modest benefit when weighed against the costs of the amending process.

I. Promises, Promises, Promises

A. The Costs of the Amendment Process

Before describing the benefits of constitutional amendment, it's worth briefly making a pedantic point. Amending the Constitution is a heavy lift. …

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