I’m very grateful to Jack Balkin for hosting a symposium over the next week or so on my new book, A Real Right to Vote. I’m especially honored by the distinguished contributors: Bruce Cain (Stanford), Wilfred Codrington III (Brooklyn), Alex Keyssar (Harvard), Sandy Levinson (Texas), Derek Muller (Notre Dame), Daniel Tokaji (Wisconsin), Michael Waldman (NYU – Brennan Center), and Emily Rong Zhang (Berkeley).
Here’s the first post, from Michael Waldman, which begins:
The most significant thing about this terrific book may be the simple fact of the topic and author. It matters that Rick Hasen, a mandarin of election law and a prominent public intellectual voice, has embraced an amendment to guarantee voting rights. It is a welcome sign of the expansion of our constitutional imagination. As Rick notes, the fight for American democracy over the centuries has included fierce drives to amend the Constitution. These battles were won not in court but in the court of public opinion.
Yet for decades, those who care about voting rights – and progressives more broadly – have been remarkably skittish about the notion of amending the Constitution. Some argue there already is a right to vote in the Constitution. True, the original document, the one written by the powdered-wig boys, makes no mention. (Most Founders did not support a dramatic widening of the franchise, though some did.) But five later amendments refer to the “right to vote.” Acknowledging that protection is weak or missing seemed a misguided concession. For many years, this was my own view. The Brennan Center shied away from such an amendment because we did not think it necessary. (In contrast, we have long backed an amendment to overturn Buckley v. Valeo to allow reasonable regulation of money in politics.)
This hesitancy was not limited to voting issues. Liberals more generally grew queasy about constitutional change. The right seemed to burn with inexhaustible passion, demanding amendments to balance the budget, ban flag burning, prevent same sex marriage, and on and on. Calls for a constitutional convention raised fears that demagogues would dominate and shred the Bill of Rights. When it came to constitutional change, liberals became conservative.
But that misreads history. Those who want to advance democracy should not, as Rep. Jamie Raksin put it at a Brennan Center conference, be “fraidy cats.” A push for an amendment need not give courts, for example, an excuse to deny those rights in the meantime. Reva Siegel has recounted the push for the Equal Rights Amendment. Even as backers argued the ERA was needed, judges did not use that as an excuse to rule against claims of equality. Instead, popular momentum encouraged judges to go further.
So, the A word is not transgressive. But as a genuine strategy – rather than a thought experiment – we would need to assess opportunity costs, including time and money spent, and the effectiveness of an amendment versus a strong statute….