Prior to becoming President of the United States, Professor Barack Obama, as a teacher of constitutional law at the University of Chicago, began all of his constitutional law classes with the surprising fact that the fundamental individual “right to vote” is not in the U.S. Constitution? Why did he do that? What was he trying to say? What was he telling us? He was telling us about our history.
We were in slavery from 1619-to-1865 – 246 years.
On April 12, 1861 the issue of slavery finally came to a head and for the next 4 years President Abraham Lincoln led the nation in fighting a violent and un-Civil War to end slavery that cost 600,000 Americans their lives – black as well as white - and the Union, on April 12, 1865, finally won the fighting war.
But, to this day, the Confederates have continued the ideological war – the war over state sovereignty, also known as “states rights.” They argued that the war wasn’t about slavery, but over states’ rights. They didn’t think the Big Federal Government should be telling the states what they could do with their slaves and how they should treat their slaves. It was none of the Federal Government’s business. Slavery was “state” business!
Today, this same Confederate ideology doesn’t think the Big Federal Government should be telling states what to do with regard to education, health care, women’s health, voting and more.
After the American Civil War, three amendments were added to the Constitution – known as the Reconstruction Amendments. The 13th Amendment, ratified in 1865, ended slavery. The 14th Amendment, ratified in 1868, established the legal principles of equal protection under the law and due process. The 15th Amendment, ratified in 1870, outlawed discrimination in voting of the basis of race, color or previous condition of servitude.
The Reconstruction Amendments were intended to provide freedom and equality for the former slaves. The Slaughter-House Cases (1873) began to undercut the citizenship civil rights of all Americans guaranteed in the 14th Amendment with “states’ rights,” and in 1876 some states began to pass “segregation” or Jim Crow state laws that were also designed to undercut the rights guaranteed in the Reconstruction Amendments – including the 15th Amendment’s voting rights. Finally, in 1896, in Plessy v. Ferguson, a conservative Supreme Court gave federal approval to state Jim Crow laws and established the legal principal of “separate but equal.”
It took another 58 years, until Brown (1954), to overturn Plessy’s legal principle of “separate but equal” and re-establish the originally intended Federal Legal Principle of equal protection under the law for all Americans.
Remember, the 15th Amendment only outlawed discrimination in voting on the basis of “race, color or previous condition of servitude.”
Professor Barack Obama was trying to tell us, in legal terms, that the 15th Amendment was not a fundamental individual right to vote - it only outlawed discrimination in voting on the basis of race. The 15th Amendment allowed states to think up other ways to discriminate in voting - and they did. Using the “states’ rights” principle, states came up with all sorts of ways to keep African Americans from voting that didn’t explicitly involve race – e.g., grandfather clauses, literacy tests and poll taxes. And they didn’t shy away from using violence! In other words, they left the right to vote in the belly of the beast.
Dr. Martin Luther King, Jr. and the Civil Rights Movement used the 1954 Brown’s legal principle to fulfill the 14th Amendment’s original intent - to provide equal Federal protection under the law. The Civil Rights Movement marched, bled and died to fulfill the 14th Amendment’s promise by passing the 1964 Civil Rights Act, a law that desegregated public accommodations – e.g., public transportation, public swimming pools, restaurants, restrooms and more.
Selma was about gaining the right to vote for African Americans. It was about fulfilling the 15th Amendment – gaining Federal protection of the right to vote for African Americans by outlawing discrimination in voting on the basis of race. The Voting Rights Act was the enabling legislation 95 years after the 15th Amendment was ratified. It was achieved as a result of John Lewis and others being beaten and trampled as they crossed the Edmund Pettus Bridge; Dr. King leading a Selma-to-Montgomery march to the state capitol on March 25; and President Lyndon Baines Johnson signing the Voting Rights Act into law on August 6, 1965.
Most parts of the 1965 Voting Rights Act are permanent, but certain sections of the law are temporary and periodically needed to be renewed - in 1970, 1975, 1982 and in 2006 for another 25 years. The temporary parts, including Section 4, which was the formula that triggered Section 5 preclearance in (mostly) the former Confederate states and a few other counties and voting jurisdictions – 16 states, or parts of states, in total. Preclearance means that any changes in the covered area’s voting laws must be pre-cleared by the U.S. Justice Department or the Federal District Court in the District of Columbia to make sure that the voting changes will not negatively effect the voting rights of racial minorities or people of color.
So we won the military battle in 1865. We won the legal battles in 1954, 1964 and 1965. But we haven’t defeated the Confederates and their ideological battle of advocating and defending states’ rights.
After the 1965 Voting Rights Act became Federal law - in fulfillment of the 15th Amendment’s outlawing of discrimination in voting on the basis of race - white supremacists and states’ righters still had more discriminatory arrows in their ideological quivers.
Now they came up with new methods of discrimination – annexation, at-large districts, register to vote twice (in the county and in the city) in order to vote once. Voting rights discrimination cases were filed and mostly won in Federal courts – until the Shelby (2013) decision.
The Robert’s Supreme Court is a conservative “states’ rights”- oriented court. Both of the recent Court decisions – the one overturning the Defense of Marriage Act - (DOMA) - involving gays and lesbians and the Shelby case involving voting rights - were states’ rights decisions and interpretations of the Constitution by the Robert’s Court.
Again, Professor Barack Obama was reminding us that the right to vote is not a fundamental individual right in the Constitution – like the 1st Amendment’s freedom of speech, freedom of religion, and freedom to peaceably assemble and protest – because voting is a state right.
White supremacists had still more arrows in their states’ rights quivers. Within two hours of the Shelby decision, Texas Attorney General Greg Abbot – now running for Governor – announced that the Texas’ voter identification law, previously rejected by the U.S. Justice Department and a federal court (which said it was the most discriminatory measure of its kind in the country), would “immediately” be implemented. And he joyously said he didn’t have to check with the Federal government before Texas implemented it.
Also, shortly after the Shelby decision, North Carolina passed the most regressive state voter law since before 1965, which included new obstacles to voting - a strict photo ID requirement, elimination of same-day voter registration, cutting the early voting period by seven days, eliminating early registration for young people, throwing out provisional ballots cast at the wrong polling station among other provisions.
Professor Barack Obama was telling us that the 1965 Voting Rights Act did not give each and every American citizen the explicit, fundamental, affirmative, individual, citizenship or federal right to vote! It was a law designed to address the unique history of discrimination against African Americans, other people of color and eventually language minorities. Prior to the 1965 law we had the difficult, expensive and lengthy task of proving in court intentional racial discrimination in voting, and as soon as we defeated one form of discrimination, white supremacists and states righters thought up new forms, and we had to start all over again. Unless corrected by a congressional legislative “fix” of the Section 4 formula, the Shelby decision has essentially put us in the same position again.
That’s why I’m advocating that we fight to add a right to vote amendment to the U.S. Constitution. It’s confusing because many Americans vote in virtually every election. So they think everyone has a “right” to vote – and they’re partially right. Except for ex-felon laws in certain states, most Americans do have a state right to vote, but they don’t have a citizenship right to vote. In Illinois you have an Illinois right to vote, but not an American right to vote.
Also, because we have a “states’ rights” voting system, since 2010, 34 states – not just Texas and North Carolina – have passed new voting laws that are mostly designed to suppress or make it more difficult for certain Americans to vote - specifically minorities, young people, seniors, workers, women, the poor and the disabled. The intent of these mostly Republican Governors and Republican-controlled legislatures is to disenfranchise Democrats (big “D”), but it also undermines all democrats (small “d”) and our democracy.
Because of the way lines were drawn – another states’ rights trick - African Americans, Hispanic Americans, Asian Americans and Native Americans couldn’t really elect candidates of their choice until 1982 when a new provision was added to the 1965 Voting Rights Act and a Supreme Court decision, Thornburg v. Gingles (1986), legally validated Majority-Minority districts. So when the census was taken in 1990 and the redistricting lines were redrawn in 1991, it allowed more African Americans (as well as Hispanics and Asians) to be elected to the U.S. House of Representatives. In 1992 the following African Americans were elected as U.S. Representatives and began serving on January 3, 1993:
But because voting is a “state right” and the Supreme Court is a “states’ rights”-oriented Court, in a series of voting rights cases beginning in the 1990s, the Court has again begun to turn back the clock on voting rights - e.g., Shaw v Reno (1993).
Let’s take a closer look at this right to vote:
When it comes to voting – and many other issues – we’re not living in a post-racial society. Attorney Jim Crow, Esq., Governor Jim Crow, Jr. and state representative and state senator Jim Crow, Jr.’s wives have just thought up more new ways to disenfranchise us.
They haven’t changed! We beat them with a new voting coalition! The Confederate ideology hasn’t changed. It’s just changed parties. When the 1964 Civil Rights Act was signed into law on July 2, 1964, South Carolina Senator Strom Thurmond switched to the Republican Party in September 1964. My 1984 campaign increased registered voters in Alabama and helped elect Democratic Senator Richard Shelby in 1986, but on November 9, 1994, he switched to the Republican Party one day after Republicans won control of both the House and the Senate. Trent Lott, Newt Gingrich and most of the older current southern Republicans were all raised as Dixiecrat Democrats. They just changed the color of their uniform from blue to red, but they haven’t fundamentally changed with respect to their ideology of states’ rights.
Congressmen Mark Pocan (WI) and Keith Ellison (MN) have introduced a bill to add a right to vote amendment to the U.S. Constitution. It’s called House Joint Resolution 44 (H.J. Res. 44). It would do two things:
(1) It would provide every American with a fundamental individual right to vote; and
(2) It would give Congress the authority to create a unified national voting system with minimum standards.
A national unified voting system would replace our current “states’ rights” voting system that is comprised of 50 states (plus DC), 3,143 counties, 13,000 election jurisdictions that administer 186,000 precincts, that are all in “separate and unequal” local voting jurisdictions. But if the legal principle of "separate and unequal" was unacceptable for education in 1954, it’s also unacceptable for voting in 2014, since voting is the foundation of our democracy.
Why do we need a fundamental individual right to vote added to the Constitution?
We were in slavery from 1619-to-1865 – 246 years.
On April 12, 1861 the issue of slavery finally came to a head and for the next 4 years President Abraham Lincoln led the nation in fighting a violent and un-Civil War to end slavery that cost 600,000 Americans their lives – black as well as white - and the Union, on April 12, 1865, finally won the fighting war.
But, to this day, the Confederates have continued the ideological war – the war over state sovereignty, also known as “states rights.” They argued that the war wasn’t about slavery, but over states’ rights. They didn’t think the Big Federal Government should be telling the states what they could do with their slaves and how they should treat their slaves. It was none of the Federal Government’s business. Slavery was “state” business!
Today, this same Confederate ideology doesn’t think the Big Federal Government should be telling states what to do with regard to education, health care, women’s health, voting and more.
After the American Civil War, three amendments were added to the Constitution – known as the Reconstruction Amendments. The 13th Amendment, ratified in 1865, ended slavery. The 14th Amendment, ratified in 1868, established the legal principles of equal protection under the law and due process. The 15th Amendment, ratified in 1870, outlawed discrimination in voting of the basis of race, color or previous condition of servitude.
The Reconstruction Amendments were intended to provide freedom and equality for the former slaves. The Slaughter-House Cases (1873) began to undercut the citizenship civil rights of all Americans guaranteed in the 14th Amendment with “states’ rights,” and in 1876 some states began to pass “segregation” or Jim Crow state laws that were also designed to undercut the rights guaranteed in the Reconstruction Amendments – including the 15th Amendment’s voting rights. Finally, in 1896, in Plessy v. Ferguson, a conservative Supreme Court gave federal approval to state Jim Crow laws and established the legal principal of “separate but equal.”
It took another 58 years, until Brown (1954), to overturn Plessy’s legal principle of “separate but equal” and re-establish the originally intended Federal Legal Principle of equal protection under the law for all Americans.
Remember, the 15th Amendment only outlawed discrimination in voting on the basis of “race, color or previous condition of servitude.”
Professor Barack Obama was trying to tell us, in legal terms, that the 15th Amendment was not a fundamental individual right to vote - it only outlawed discrimination in voting on the basis of race. The 15th Amendment allowed states to think up other ways to discriminate in voting - and they did. Using the “states’ rights” principle, states came up with all sorts of ways to keep African Americans from voting that didn’t explicitly involve race – e.g., grandfather clauses, literacy tests and poll taxes. And they didn’t shy away from using violence! In other words, they left the right to vote in the belly of the beast.
Dr. Martin Luther King, Jr. and the Civil Rights Movement used the 1954 Brown’s legal principle to fulfill the 14th Amendment’s original intent - to provide equal Federal protection under the law. The Civil Rights Movement marched, bled and died to fulfill the 14th Amendment’s promise by passing the 1964 Civil Rights Act, a law that desegregated public accommodations – e.g., public transportation, public swimming pools, restaurants, restrooms and more.
Selma was about gaining the right to vote for African Americans. It was about fulfilling the 15th Amendment – gaining Federal protection of the right to vote for African Americans by outlawing discrimination in voting on the basis of race. The Voting Rights Act was the enabling legislation 95 years after the 15th Amendment was ratified. It was achieved as a result of John Lewis and others being beaten and trampled as they crossed the Edmund Pettus Bridge; Dr. King leading a Selma-to-Montgomery march to the state capitol on March 25; and President Lyndon Baines Johnson signing the Voting Rights Act into law on August 6, 1965.
Most parts of the 1965 Voting Rights Act are permanent, but certain sections of the law are temporary and periodically needed to be renewed - in 1970, 1975, 1982 and in 2006 for another 25 years. The temporary parts, including Section 4, which was the formula that triggered Section 5 preclearance in (mostly) the former Confederate states and a few other counties and voting jurisdictions – 16 states, or parts of states, in total. Preclearance means that any changes in the covered area’s voting laws must be pre-cleared by the U.S. Justice Department or the Federal District Court in the District of Columbia to make sure that the voting changes will not negatively effect the voting rights of racial minorities or people of color.
So we won the military battle in 1865. We won the legal battles in 1954, 1964 and 1965. But we haven’t defeated the Confederates and their ideological battle of advocating and defending states’ rights.
After the 1965 Voting Rights Act became Federal law - in fulfillment of the 15th Amendment’s outlawing of discrimination in voting on the basis of race - white supremacists and states’ righters still had more discriminatory arrows in their ideological quivers.
Now they came up with new methods of discrimination – annexation, at-large districts, register to vote twice (in the county and in the city) in order to vote once. Voting rights discrimination cases were filed and mostly won in Federal courts – until the Shelby (2013) decision.
The Robert’s Supreme Court is a conservative “states’ rights”- oriented court. Both of the recent Court decisions – the one overturning the Defense of Marriage Act - (DOMA) - involving gays and lesbians and the Shelby case involving voting rights - were states’ rights decisions and interpretations of the Constitution by the Robert’s Court.
Again, Professor Barack Obama was reminding us that the right to vote is not a fundamental individual right in the Constitution – like the 1st Amendment’s freedom of speech, freedom of religion, and freedom to peaceably assemble and protest – because voting is a state right.
White supremacists had still more arrows in their states’ rights quivers. Within two hours of the Shelby decision, Texas Attorney General Greg Abbot – now running for Governor – announced that the Texas’ voter identification law, previously rejected by the U.S. Justice Department and a federal court (which said it was the most discriminatory measure of its kind in the country), would “immediately” be implemented. And he joyously said he didn’t have to check with the Federal government before Texas implemented it.
Also, shortly after the Shelby decision, North Carolina passed the most regressive state voter law since before 1965, which included new obstacles to voting - a strict photo ID requirement, elimination of same-day voter registration, cutting the early voting period by seven days, eliminating early registration for young people, throwing out provisional ballots cast at the wrong polling station among other provisions.
Professor Barack Obama was telling us that the 1965 Voting Rights Act did not give each and every American citizen the explicit, fundamental, affirmative, individual, citizenship or federal right to vote! It was a law designed to address the unique history of discrimination against African Americans, other people of color and eventually language minorities. Prior to the 1965 law we had the difficult, expensive and lengthy task of proving in court intentional racial discrimination in voting, and as soon as we defeated one form of discrimination, white supremacists and states righters thought up new forms, and we had to start all over again. Unless corrected by a congressional legislative “fix” of the Section 4 formula, the Shelby decision has essentially put us in the same position again.
That’s why I’m advocating that we fight to add a right to vote amendment to the U.S. Constitution. It’s confusing because many Americans vote in virtually every election. So they think everyone has a “right” to vote – and they’re partially right. Except for ex-felon laws in certain states, most Americans do have a state right to vote, but they don’t have a citizenship right to vote. In Illinois you have an Illinois right to vote, but not an American right to vote.
Also, because we have a “states’ rights” voting system, since 2010, 34 states – not just Texas and North Carolina – have passed new voting laws that are mostly designed to suppress or make it more difficult for certain Americans to vote - specifically minorities, young people, seniors, workers, women, the poor and the disabled. The intent of these mostly Republican Governors and Republican-controlled legislatures is to disenfranchise Democrats (big “D”), but it also undermines all democrats (small “d”) and our democracy.
Because of the way lines were drawn – another states’ rights trick - African Americans, Hispanic Americans, Asian Americans and Native Americans couldn’t really elect candidates of their choice until 1982 when a new provision was added to the 1965 Voting Rights Act and a Supreme Court decision, Thornburg v. Gingles (1986), legally validated Majority-Minority districts. So when the census was taken in 1990 and the redistricting lines were redrawn in 1991, it allowed more African Americans (as well as Hispanics and Asians) to be elected to the U.S. House of Representatives. In 1992 the following African Americans were elected as U.S. Representatives and began serving on January 3, 1993:
- Sanford Bishop (GA)
- Corrine Brown (FL)
- Jim Clyburn (SC)
- Cleo Fields (LA)
- Alcee Hastings (FL)
- Earl Hilliard (AL)
- Eddie Bernice Johnson (TX)
- Cynthia McKinney GA)
- Carrie Meek (FL)
- Mel Reynolds (IL)
- Bobby Rush (IL)
- Bobby Scott (VA)
- Bennie Thompson (MS)
- Walter Tucker (CA)
- Mel Watt (NC)
- Albert Wynn (MD)
But because voting is a “state right” and the Supreme Court is a “states’ rights”-oriented Court, in a series of voting rights cases beginning in the 1990s, the Court has again begun to turn back the clock on voting rights - e.g., Shaw v Reno (1993).
Let’s take a closer look at this right to vote:
- Women only got the right to vote without discrimination in 1920 with the 19th Amendment.
- 18-year-olds got the right to vote in 1971 with the 26th Amendment.
- Woman didn’t get the right to serve on juries until 1975 (Taylor v. Louisiana).
- Symm v. U.S. (1979) was a case that involved the historically African American Prairie View A & M University in Texas, which won the right of students to register and vote from their college residence.
- Only registered votes can serve on juries - unregistered voters can’t serve on juries.
- Ex-felons can’t serve on juries.
- And there are 5.85 million ex-felons who have paid their debt to society, but cannot register and vote.
- If the fundamental individual right to vote had been in the Constitution in 2000, Al Gore would have been elected President over George W. Bush because all the individual votes of Floridians would have had to be counted – Floridians individual votes would have taken precedence over Florida’s state law. But because voting is a “state right,” Florida’s law took precedence over the individual voter because the Florida law said all of the votes had to be counted by midnight, December 12. And you may remember that the Supreme Court stopped the vote count on the Friday before the Tuesday, December 12th midnight deadline.
When it comes to voting – and many other issues – we’re not living in a post-racial society. Attorney Jim Crow, Esq., Governor Jim Crow, Jr. and state representative and state senator Jim Crow, Jr.’s wives have just thought up more new ways to disenfranchise us.
They haven’t changed! We beat them with a new voting coalition! The Confederate ideology hasn’t changed. It’s just changed parties. When the 1964 Civil Rights Act was signed into law on July 2, 1964, South Carolina Senator Strom Thurmond switched to the Republican Party in September 1964. My 1984 campaign increased registered voters in Alabama and helped elect Democratic Senator Richard Shelby in 1986, but on November 9, 1994, he switched to the Republican Party one day after Republicans won control of both the House and the Senate. Trent Lott, Newt Gingrich and most of the older current southern Republicans were all raised as Dixiecrat Democrats. They just changed the color of their uniform from blue to red, but they haven’t fundamentally changed with respect to their ideology of states’ rights.
Congressmen Mark Pocan (WI) and Keith Ellison (MN) have introduced a bill to add a right to vote amendment to the U.S. Constitution. It’s called House Joint Resolution 44 (H.J. Res. 44). It would do two things:
(1) It would provide every American with a fundamental individual right to vote; and
(2) It would give Congress the authority to create a unified national voting system with minimum standards.
A national unified voting system would replace our current “states’ rights” voting system that is comprised of 50 states (plus DC), 3,143 counties, 13,000 election jurisdictions that administer 186,000 precincts, that are all in “separate and unequal” local voting jurisdictions. But if the legal principle of "separate and unequal" was unacceptable for education in 1954, it’s also unacceptable for voting in 2014, since voting is the foundation of our democracy.
Why do we need a fundamental individual right to vote added to the Constitution?
- Because adding a right to vote to the Constitution is morally right.
- Because adding a right to vote to the Constitution is rationally sound.
- Because adding a right to vote to the Constitution makes legal sense and strengthens the rule of law in our democracy.
- Because adding a right to vote to the Constitution is the patriotic thing to do.
- Because voting rights, voter registration, voter turnout and voter outcomes affect every dimension of our lives and everything we do in life, from womb to tomb.
- Because “the vote” is a human right and should not be left to the 50 states to administer with many different standards.
- Because the right to vote is not a partisan political issue to be manipulated for one party’s advantage and the other party’s disadvantage.
- Because the right to vote is protective of all other rights.
- Because we need to put the right to vote on the same plain as the 2nd Amendment’s right to a gun. It makes no sense that in one of the worlds leading democracies that we have the fundamental individual right to a gun but not the fundamental individual right to vote.
