Today’s entry in the NYU Law Democracy Project’s 100 ideas for 100 days series, by Samuel Moyn, argues for “[m]aking the votes of the younger count for more” in order to counteract the political power of older voters. Entitled Voting Our Way Out of Gerontocracy, Moyn’s essay considers giving “proxy votes” for parents to cast on behalf of their children but concludes that “parents do not have the same interests as children, not by a long shot.”

Moyn also considers giving the right to vote to children as young as six years old, but ultimately rejects that idea as well because “the underlying problem is turnout”–the elderly will still vote at greater rates than the young. (He doesn’t consider Australia-style compulsory voting as a solution to the turnout problem.) So he contemplates instead “letting the cohort of eligible voters nearest in age to the disenfranchised vote for themselves, as well as for their younger peers.” But this would also be a form of proxy voting, and he worries that proxy voting has “a bad odor” because of its association with “the natalist right” and J.D. Vance. Consequently, he settles on his proposal that younger eligible voters, like 18 to 21 year olds, have “greater voting power” as a way to represent the interests of “non-voting members of their own generation.”

Moyn’s proposal is a misconceived solution to a valid concern. As I argued in Voters as Fiduciaries, the interests of non-voters and especially children are not adequately taken into consideration in our contemporary political culture. However, this is also true of future generations of citizens who are not yet alive today but whose interests are greatly affected by the public policies adopted by the current generation. The solution to this is not to give 18-year-olds votes of extra weight in order to represent 17-year-old non-voters. Instead, the necessary solution is to reconceive the exercise of voting so that it is not empowering individuals to protect their own self-interests along with the interests of other individuals most similar to them, but instead empowering citizens to participate in determining what is in the overall best interest of the polity as a whole, for its long-term as well as immediate future. We have gotten too far away of the idea that voting, like jury duty, is an office that adult citizens are equally entitled to hold in our system of government in order to exercise the power of the state in the collective public interest.

But whatever one thinks of Moyn’s proposal as a matter of democratic theory, it’s a nonstarter based on current constitutional law. This is a point on which Moyn is clearly mistaken when he writes that “[t]here is no constitutional barrier” to his proposal. Let’s set aside his contention that the Twenty-Sixth Amendment–which provides that “[t]he right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age–would permit differently weighted votes for different age groups of voters (although it could be argued that this kind of differential weighting would be an abridgment of the right to vote within the meaning of the amendment). More fundamentally, such differentially weighted votes would contravene the Equal Protection Clause of the Fourteenth Amendment, as interpreted in Reynolds v. Sims (1964) and its progeny.

In Reynolds itself, the Supreme Court declared that it would be unconstitutional that “certain of the State’s voters could vote two, five, or 10 times for their legislative representatives” while others “could vote only once.” The Court in Reynolds then added that it would also be “inconceivable” that “in counting votes for legislators” the votes of some citizens “would be multiplied by two, five, or 10” while the votes of other citizens “would be counted only at face value.” The Court in Reynolds made these observations as the predicate for its proposition that malapportionment amounted to the “identical” constitutional infirmity.

The reasoning of Harper v. Virginia Board of Education (1966), one of the cases following Reynolds, would rule out giving extra weight to the votes of the rich than those of the poor. And in the precedent closest Moyn’s own proposal, Kramer v. Union Free School District No. 15 (1969) the Court ruled that all adult citizens living in a school district were equally entitled to vote for school board members regardless of whether or not they were parents of schoolchildren or own taxable property in the district. The same principle rules out giving unequal voting power to adult voters of different ages.

Unless all these longstanding precedents are to be repudiated, Moyn’s proposal is unquestionably unconstitutional.