109 Iowa L. Rev. 1703 (2024)



Does the U.S. Constitution protect the affirmative right to vote? Those focusing on the Constitution’s text say no. Yet, the Supreme Court has treated the right to vote as fundamental under the Constitution since the mid-twentieth century. That discrepancy between text and precedent has taken on renewed importance now. Under the Court’s current interpretive methodology, rights not explicitly found in the Constitution’s text can only be protected as fundamental if there is a basis in history and tradition for protecting that right. Thus far, the Court has not sufficiently grounded the protection of the fundamental right to vote in either text, history, or tradition. 

In this Article, I present original historical research showing that a fundamental right to vote can be derived from the text, history, and tradition of republican government in the United States. At the founding, the relationship between the right to vote and republican government was indeterminate. Nonetheless, the Framers included in the Constitution a Republican Form of Government Clause recognizing that its meaning would be clarified, or liquidated, over time. In fact, James Madison specified the method for liquidating the Republican Form of Government Clause: States would be responsible for giving meaning to republican government. 

During the first half of the nineteenth century, the states, in adopting and amending their constitutions, did clarify a critical element of the Republican Form of Government Clause: the relationship between the right to vote and republican government. In repealing property qualifications for voting, the states rejected a conservative conception of republican government in which the right to vote was understood to be a privilege, properly belonging only to the propertied class. By the mid-nineteenth century, the states had converged on a radical conception of republican government that centered popular sovereignty as participatory self-government and entitled all members of the polity (albeit defined then to include only white men) to the right to vote. 

That consensus view of the right to vote has persisted to the present, even as the groups deemed eligible to form a part of the polity have expanded to include people of color and women. In that more inclusive polity, the enduring tradition of republican government entitling to all members the right to vote has functioned as a critical defense for individuals and groups against oppression. Judicial recognition of the fundamental right to vote is therefore not only appropriate, but necessary to sustain America’s constitutional republic. 


Wednesday, May 15, 2024