If you’re looking for the right to vote, you won’t find it in the United States Constitution or the Bill of Rights.
The Bill of Rights recognizes the core rights of citizens in a democracy, including freedom of religion, speech, press and assembly. It then recognizes several insurance policies against an abusive government that would attempt to limit these liberties: weapons; the privacy of houses and personal information; protections against false criminal prosecution or repressive civil trials; and limits on excessive punishments by the government.
But the framers of the Constitution never mentioned a right to vote. They didn’t forget – they intentionally left it out. To put it most simply, the founders didn’t trust ordinary citizens to endorse the rights of others.
They were creating a radical experiment in self-government paired with the protection of individual rights that are often resented by the majority. As a result, they did not lay out an inherent right to vote because they feared rule by the masses would mean the destruction of – not better protection for – all the other rights the Constitution and Bill of Rights uphold. Instead, they highlighted other core rights over the vote, creating a tension that remains today.
Many of the rights the founders enumerated protect small groups from the power of the majority – for instance, those who would say or publish unpopular statements, or practice unpopular religions, or hold more property than others. James Madison, a principal architect of the U.S. Constitution and the drafter of the Bill of Rights, was an intellectual and landowner who saw the two as strongly linked.
At the Constitutional Convention in 1787, Madison expressed the prevailing view that “the freeholders of the country would be the safest depositories of republican liberty,” meaning only people who owned land debt-free, without mortgages, would be able to vote. The Constitution left voting rules to individual states, which had long-standing laws limiting the vote to those freeholders.
In the debates over the ratification of the Constitution, Madison trumpeted a benefit of the new system: the “total exclusion of the people in their collective capacity.” Even as the nation shifted toward broader inclusion in politics, Madison maintained his view that rights were fragile and ordinary people untrustworthy. In his 70s, he opposed the expansion of the franchise to nonlanded citizens when it was considered at Virginia’s Constitutional Convention in 1829, emphasizing that “the great danger is that the majority may not sufficiently respect the rights of the Minority.”
The founders believed that freedoms and rights would require the protection of an educated elite group of citizens, against an intolerant majority. They understood that protected rights and mass voting could be contradictory.
Scholarship in political science backs up many of the founders’ assessments. One of the field’s clear findings is that elites support the protection of minority rights far more than ordinary citizens do. Research has also shown that ordinary Americans are remarkably ignorant of public policies and politicians, lacking even basic political knowledge.
What Americans think of as the right to vote doesn’t reside in the Constitution, but results from broad shifts in American public beliefs during the early 1800s. The new states that entered the union after the original 13 – beginning with Vermont, Kentucky and Tennessee – did not limit voting to property owners. Many of the new state constitutions also explicitly recognized voting rights.
As the nation grew, the idea of universal white male suffrage – championed by the commoner-President Andrew Jackson – became an article of popular faith, if not a constitutional right.
After the Civil War, the 15th Amendment, ratified in 1870, guaranteed that the right to vote would not be denied on account of race: If some white people could vote, so could similarly qualified nonwhite people. But that still didn’t recognize a right to vote – only the right of equal treatment. Similarly, the 19th Amendment, now 100 years old, banned voting discrimination on the basis of sex, but did not recognize an inherent right to vote.
Today, the country remains engaged in a long-running debate about what counts as voter suppression versus what are legitimate limits or regulations on voting – like requiring voters to provide identification, barring felons from voting or removing infrequent voters from the rolls.
These disputes often invoke an incorrect assumption – that voting is a constitutional right protected from the nation’s birth. The national debate over representation and rights is the product of a long-run movement toward mass voting paired with the longstanding fear of its results.
The nation has evolved from being led by an elitist set of beliefs toward a much more universal and inclusive set of assumptions. But the founders’ fears are still coming true: Levels of support for the rights of opposing parties or people of other religions are strikingly weak in the U.S. as well as around the world.
Americans may have come to believe in a universal vote, but that value does not come from the Constitution, which saw a different path to the protection of rights.
Valid concerns have been raised about mail voting. In New York, the local election boards have taken weeks to count primary ballots received in the mail as a result of the coronavirus, leaving several races for Congress still unresolved. The problems have been blamed on the late decision to send out the absentee ballot applications, outdated ballot counting machines, and the sheer number of mail ballots. The New York case raises a serious alarm with the 2020 election approaching and many states considering more reliance on mail voting in the midst of the pandemic.
Adding to this sense of urgency, President Trump has declared, without evidence, that mail voting is an open invitation to fraud and will be used unfairly against him this fall. He has tweeted that mail voting would make this the “most rigged” election in history. Setting aside the fact that states have relied on absentee and mail voting to hold secure elections for many years, the stumbles in New York and the irresponsible fear mongering by Trump raise the potential of a very real crisis come this fall.
Consider the national disruption surrounding the 2000 election, which was decided for George Bush after a recount in Florida, a month of legal battles, and a controversial split Supreme Court decision. After you add the factor of a second wave of coronavirus cases in the fall and a sitting president shouting “rigged!” to the rafters, and you can understand why some analysts worry that the period following the 2020 election may be one of the most disruptive contests in our modern history.
A crisis foretold, however, can be a crisis averted. Instead of wringing our hands over the recent problems with mail voting in New York, we have to learn from them and from the multiple states that have implemented mail voting systems without problems or fraud. Then states can make common sense preparations to ensure the process goes as quickly and smoothly as possible to prevent a potential election crisis in November.
The fact that election boards were overwhelmed by an influx of absentee ballots in New York must be the rallying cry for dedicating more resources to efficiently implement mail voting systems. Reducing funds available for mail voting initiatives, as some Trump supporters have advocated, in this era when many people have to rely on these ballots or literally risk death, will only serve to suppress voting, which may be the point.
Consider the case of Ohio for a glimpse of what a proactive mail voting initiative looks like. At the urging of Governor Mike DeWine, Republican and Democratic lawmakers unanimously approved their all mail voting primary that was successfully concluded in April. Governors and state legislatures across the country have to learn from Ohio, and additional federal funds have to be made available to assist the efforts.
All those claims that mail ballots are subject to rampant tampering is not evidence that they are, and it suggests the need to educate voters on the issue. Members of the Armed Forces have relied on absentee voting with mail ballots since the Civil War. Trump himself has voted absentee by mail. Meanwhile, three states allow ounties to conduct elections completely by mail if they choose, five other states conduct elections almost entirely by mail, and more than two dozen other states permit their residents to cast absentee ballots by mail without having to provide a reason.
Over 250 million votes have been cast using mailed ballots since 2000, according to the Vote at Home Institute, and yet exhaustive analysis has identified only a tiny fraction of cases of fraud. None of those states that hold their elections almost entirely by mail has seen voter fraud scandals. The bipartisan group Vote Safe, chaired by former Governor Tom Ridge of Pennsylvania and former Governor Jennifer Granholm of Michigan, notes that several studies have consistently proven that mail ballots are secure and do not advantage one political party over the other. The team rightly emphasizes that the goal of ensuring the safety of voters as they exercise their rights during a raging pandemic is not a partisan issue.
Whether we improve our voting systems or defund them, the use of mail ballots will inevitably be much greater in the 2020 election than in years past. We can prepare for this eventuality and find innovative ways to deal with the challenges that arise, or we can shift our gaze from another crisis foretold and suffer the major consequences come November.
Winston Churchill noted that democracy is the worst form of government, except for all other forms that have been tried. In the midst of a pandemic across the country that has already claimed the lives of tens of thousands of Americans, exercising our right to vote by mail instead of in person may also seem like the worst solution, except for all other options.
Some Americans have refused, wrongly claiming mask decrees violate the Constitution. An internet search turns up dozens of examples.
“Costco Karen,” for instance, staged a sit-in in a Costco entrance in Hillsboro, Oregon after she refused to wear a mask, yelling “I am an American … I have rights.”
A group called Health Freedom Idaho organized a protest against a Boise, Idaho, mask mandate. One protester said, “I’m afraid where this country is headed if we just all roll over and abide by control that goes against our constitutional rights.”
As one protester said, “The coronavirus doesn’t override the Constitution.”
Speaking as a constitutional law scholar, these objections are nonsense.
It is not always clear why anti-maskers think government orders requiring face coverings in public spaces or those put in place by private businesses violate their constitutional rights, much less what they think those rights are. But most of the mistaken objections fall into two categories:
Mandatory masks violate the First Amendment right to speech, assembly, and especially association and mandatory masks violate a person’s constitutional right to liberty and to make decisions about how to their own health and bodily integrity.
They’re not mutually exclusive claims: A lawsuit filed by four Florida residents against Palm Beach County, for example, argues that mask mandates “interfere with … personal liberty and constitutional rights,” such as freedom of speech, right to privacy, due process, and the “constitutionally protected right to enjoy and defend life and liberty.” The lawsuit asks the court to issue a permanent injunction against the county’s mask mandate.
Responding to a reporter who asked why President Donald Trump appeared unconcerned about the absence of masks and social distancing at a campaign rally in Tulsa, Vice President Mike Pence said: “I want to remind you again freedom of speech and the right to peaceably assemble is in the Constitution of the U.S. Even in a health crisis, the American people don’t forfeit our constitutional rights.”
The First Amendment protects freedom of speech, press, petition, assembly and religion.
There are two reasons why mask mandates don’t violate the First Amendment.
First, a mask doesn’t keep you from expressing yourself. At most, it limits where and how you can speak. Constitutional law scholars and judges call these “time, place, and manner” restrictions. If they do not discriminate on the basis of the content of the speech, such restrictions do not violate the First Amendment. An example of a valid time, place and manner restriction would be a law that limits political campaigning within a certain distance of a voting booth.
Additionally, the First Amendment, like all liberties ensured by the Constitution, is not absolute.
All constitutional rights are subject to the goverment’s authority to protect the health, safety and welfare of the community. This authority is called the “police power.” The Supreme Court has long held that protecting public health is sufficient reason to institute measures that might otherwise violate the First Amendment or other provisions in the Bill of Rights. In 1944, in the case of Prince v. Massachusetts, for example, the Supreme Court upheld a law that prohibited parents from using their children to distribute religious pamphlets on public streets.
Some anti-maskers object that masks violate the right to liberty.
The right to liberty, including the right to make choices about one’s health and body, is essentially a constitutional principle of individual autonomy, neatly summarized as “My body, my choice.”
The 1905 case of Jacobsen v. Massachusetts shows why mask mandates don’t violate any constitutional right to privacy or health or bodily integrity. In that case, the Supreme Court upheld a smallpox vaccination requirement in Cambridge, Massachusetts.
The court said that the vaccination requirement did not violate Jacobsen’s right to liberty or “the inherent right of every freeman to care for his own body and health in such way as to him seems best.”
As the court wrote, “There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.” In a 1995 New York case, a state court held that an individual with active tuberculosis could be forcibly detained in a hospital for appropriate medical treatment.
Even if you assume that mask mandates infringe upon what the Supreme Court calls “fundamental rights,” or rights that the court has called the “very essence of a scheme of ordered liberty,” it has consistently ruled states can act if the restrictions advance a compelling state interest and do so in the least restrictive manner.
As the Jacobsen ruling and the doctrine of time, place and manner make clear, the protection of all constitutional liberties rides upon certain necessary – but rarely examined – assumptions about communal and public life.
One is that is constitutional rights – whether to liberty, speech, assembly, freedom of movement or autonomy – are held on several conditions. The most basic and important of these conditions is that our exercise of rights must not endanger others (and in so doing violate their rights) or the public welfare. This is simply another version of the police power doctrine.
Unfortunately, a global pandemic in which a serious and deadly communicable disease can be transmitted by asymptomatic carriers upsets that background and justifies a wide range of reasonable restrictions on our liberties. Believing otherwise makes the Constitution a suicide pact – and not just metaphorically.