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On A Right To Vote Amendment

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For Election Day, I have a bit of a long read arguing that the fundamental problem is bad judges, not bad constitutional text:

And even if an amendment did pass, it’s not at all clear that the problem would be solved.

The limitations of using the Constitution to protect the right to vote can be summed up in two words: Shelby County. Section 2 of the Fifteenth Amendment explicitly empowers Congress “to enforce this article by appropriate legislation.” Nonetheless, in 2013 the Supreme Court gutted the 1965 Voting Rights Act, even though Chief Justice John Roberts’ opinion was not backed by any constitutional provision suggesting a restriction on Congress’ Fifteenth Amendment powers, nor any precedent not authored by Roberts himself. As Judge Richard Posner observed in Slate, “The opinion rests on air.”

The framers of the Reconstruction amendments would not have been surprised by Shelby County. As the University of Maryland’s Mark Graber demonstrated in an extraordinary new paper, with the exception of Rep. John Bingham, the framers of the Fourteenth Amendment paid relatively little attention to the precise wording of the substantive rights in Section 1. Their skepticism about what James Madison called “parchment rights” was strongly influenced by the Supreme Court’s infamous 1857 Dred Scott decision, which ruled that Congress had no power to ban slavery in federal territories — despite explicit textual language giving Congress the power to “make all needful Rules and Regulations” concerning the territories. (As it happens, both Dred Scott and Shelby County relied on the dubious theory that the explicit powers of Congress should be limited by a “equal sovereignty of the states” principle, a principle wholly created by the judiciary.)

For this reason, they were more concerned about preserving the ability of Republicans to control the federal judiciary than with exactly what words the Constitution should use to protect the rights of freed slaves.

In other words, they thought that bad judges were a much bigger problem than textual lacunae, and there’s a great deal of truth in this. It’s very likely that the Roberts Court would uphold most contemporary vote-suppression laws even if a right-to-vote amendment was passed.

I have no problem with arguing for a right-to-vote amendment as a mobilizing too, but the Constitution already contains text that could protect the right to vote.  We shouldn’t be forgetting to make that case too.

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