Resolute Square

The Right to Vote

The "right to vote" is constantly evolving...and there is no affirmative Constitutional right to vote (did you know that?). Teri Kanefield walks us through the evolution of democracy and voting rights from a historical perspective.
Published:March 21, 2024

*Published with the generous permission of Teri Kanefield. Read all of her writing here.

By Teri Kanefield

You don’t have an affirmative Constitutional right to vote. (Did you know that?) The right to vote was not (affirmatively) included in the Constitution or the Bill of Rights, or any of the other Amendments.

The Fourteenth Amendment, added after the Civil War, contains the Equal Protection Clause, which says that no person can be denied “equal protection of the laws.” Under the Fifteenth Amendment, also added after the Civil War, the right to vote cannot be denied based on race or color. Under the Nineteenth Amendment, the right to vote cannot be denied based on sex or gender. The 24th Amendment, ratified in 1964, eliminated poll taxes. The tax had been used in some states to keep Black Americans from voting in federal elections. The 26th Amendment, ratified in 1971, lowered the voting age for all elections to 18.

None of this gives anyone an affirmative right to vote. The Supreme Court views the omission of an affirmative right to vote from the Constitution to mean that voting is a privilege that states may administer or infringe as they see fit—as long as the limits and infringement does not discriminate based on race, color, or gender. Pennsylvanian James Wilson, who signed of both the Declaration of Independence and the Constitution, described suffrage as a “darling privilege of free men” but also argued that the privilege could and should be “extended as far as considerations of safety and order will permit.” (Alexander Keyssar, p. 43)

So if a state wants to deny the right to vote to anyone who has been convicted of a felony, the state can do so. If a state wants to deny the right to vote by mail, the state can do that as well. The only thing states can’t do (under the law as it now stands) is pass laws that deny the vote based on race, gender, or a suspect classification like religion or national origin.

A government “of the people, by the people, and for the people” raises a question: Who is included? Who are the people?  It is obvious that if you can’t vote, you are not one of the “people” in “We the People.”

If you zoom out and take a look at the history of voting rights from 30,000 feet, you see this:

  • In the colonies and early America, the right to vote was (mostly) restricted to white men who owned property. At the same time, a few states, including New Jersey, Maryland, and Connecticut, allowed free Black Americans to vote if they could meet the property requirements. The colony of New Jersey allowed women to vote. A law voting law passed in 1790 referred to voters as “he or she.”

  • 1800 – 1850: The right to vote for white men was expanded as the United States became the first country in the western world to remove economic barriers to voting. First, the property ownership requirement was removed, then the requirement that a [white man] pay taxes. At the same time, most states restricted the voting rights of non-white men. By 1850, no states allowed Black men to vote. A few western states allowed women to vote.

  • After the Civil War, the vote was extended to Black men in theory. In practice, voter suppression tactics and terror tactics kept most Black men from the ballot box.

  • The 19th Amendment added all women, in theory. In practice, it added white women.

  • The Civil Rights and Voting Rights Acts of the 1960s attempted to expand the right to vote to all Americans by enforcing the 14th and 15th Amendments. The 26th Amendment lowered the voting age to 18.

  • The current Supreme Court majority is not a fan of these voting rights acts and has sought to cut them back on the grounds that the Constitution does not contain an affirmative right to vote.

On the theory that history offers perspective and possibilities for moving forward, I’ll start at the very beginning (🎶a very good place to start🎶).

Greek and Roman Democracies

The Greeks gave us the word democracy. Demos means people and cracy means to rule. Even though the word democracy implies all people, the democracies of ancient Greece limited the right to vote to well-educated “free” male citizens. In other words demos = well-educated free men.

Later, in the city-states of the Roman Republic where common people were given the right to vote and thus a voice in government, the right to vote was similarly limited to an elite group of men.

(To be fair, no democracy allows all people to vote. An infant can’t vote. A visitor from another country shouldn’t be allowed to vote. So there must be some regulation.)

The same Greeks who gave us early democracies and the word democracy understood the pitfalls of democracy. It is, therefore, no coincidence that they also gave us the word demagoguery, which literally means a leader of the people but it has come to mean “a person, especially a political leader, who wins support by exciting the emotions of ordinary people rather than by having good or morally right ideas.”

Angie Hobbs, a professor at the University of Sheffield, offers Plato’s chilling account of how a democracy can be subverted by an opportunistic demagogue:

The demagogue gains power by democratic means, claiming to be a champion of ‘the people’ and making wild promises . . . Anyone who opposes the demagogue is labeled an ‘enemy of the people’ and exiled or killed. Such tactics naturally create genuine enemies, and the demagogue quickly acquires a large bodyguard, and eventually a private army. External conflicts are also stirred up to keep the people in need of a strong leader.

Eli Merritt, a political historian at Vanderbilt University says the “golden rule of democracies” is  that “Demagogues Destroy Democracy.”
This summary of Plato’s thoughts is from the Stanford Dictionary of Philosophy:

Most people do not have the kinds of intellectual talents that enable them to think well about the difficult issues that politics involves. But in order to win office or get a piece of legislation passed, politicians must appeal to these people’s sense of what is right or not right. Hence, the state will be guided by very poorly worked out ideas that experts in manipulation and mass appeal use to help themselves win office.

In other words, Plato and some of his contemporaries thought most people were too gullible and easily manipulated, and therefore, democracy would fall into the hands of a wily demagogue. Democracy, for Plato, was thus not the best form of government.

We’ve had our share of demagogues. Huey Long was one example. Another, of course, is Trump. Jennifer Mercieca, a rhetorics and communications scholar, analyzed Trump’s rhetoric and tactics as a textbook case of a demagogue:

Voting in the Colonies 

Voting didn’t matter much in the colonies because the king was sovereign and he appointed governors and filled other important posts. But colonists were allowed to vote for some offices, including legislators to the lower house of their assemblies.

Early voting practices fed into the worst stereotypes about how easy it would be to manipulate average voters. It was common in Colonial America for candidates for office to offer food and alcoholic drinks to sway possible voters. This is from the Last Call: The Rise and Fall of Prohibition,

When twenty-four-year-old George Washington first ran for a seat in the Virginia House of Burgesses, he attributed his defeat to his failure to provide enough alcohol for the voters. When he tried again two years later, Washington floated into office partly on the 144 gallons of rum, punch, hard cider, and beer his election agent handed out—roughly half a gallon for every vote he received.

This is from Campaigning in America: A History of Election Practices:

“If a candidate ignored the custom of treating, he often found himself in great difficulty.” When James Madison attempted to campaign in 1777 without “the corrupting influence of spiritous liquors, and other treats,” he lost to a less principled opponent.

At the same time, voting in colonial America was limited to men who owned property. The following comes from Alexander Keyssar’s The Right to Vote: The Contested History of Democracy in the United States.

In seven colonies, men had to own land of specified acreage or monetary value in order to participate in elections; elsewhere, the ownership of personal property of a designated value (or in South Carolina, the payment of taxes) could substitute for real estate. (p. 38.)

Aside from property qualifications, there were no firm principles governing colonial voting rights, and suffrage laws accordingly were quite varied. Not only Catholics and Jews, but also Native Americans, free blacks, and non-naturalized aliens could vote in some places and not in others.10 Women were barred expressly in several colonies, including Virginia, but statutes elsewhere made no reference to gender, and in at least a few Massachusetts towns and New York counties propertied widows did legally vote.11 Absentee landowners were enfranchised in Virginia in 1736, which often meant that they could vote in more than one place. In practice, moreover, the enforcement or application of suffrage laws was uneven and dependent on local circumstances. (p. 37.)

The rationale for limiting political power to who those owned land was offered by the jurist William Blackstone who, in 1769 in Commentaries on the Laws of England, wrote that voters without property were too dependent on others to have “will of their own.” He argued that this meant they would be too easily manipulated by those upon whom they were dependent, which “would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty.”

Ben Franklin made fun of the idea that voting rights should hinge on the amount of property a man owned:

Today a man owns a jackass worth fifty dollars and he is entitled to vote; but before the next election the jackass dies. The man in the meantime has become more experienced, his knowledge of the principles of government, and his acquaintance with mankind, are more extensive, and he is therefore better qualified to make a proper selection of rulers—but the jackass is dead and the man cannot vote. Now gentlemen, pray inform me, in whom is the right of suffrage? In the man or in the jackass?

Another rationale for limiting the vote to people who owned property was that property owners had more of a stake in the laws. The rationale for not including women was the widespread belief that women were incapable of the kind of rational thinking necessary to understand politics and government. (In other words, these rich guys thought that women and poor people were too easily manipulated by men like them, so poor people and women should not be allowed to vote.)

Fear of Demagogues

In 1787, when the nation was in chaos because the Articles of Confederation were failing, George Washington wrote to Lafayette to express his fears that a demagogue would take advantage of the chaos to seize power:

The pressure of the public voice was so loud, I could not resist the call to a convention of the States which is to determine whether we are to have a Government of respectability under which life—liberty, and property secured to us, or whether we are to submit to one which may be the result of chance or the moment, springing perhaps from anarchy dictated perhaps by some aspiring demagogue who will not consult the interest of his Country so much as his own ambitious views. (Emphasis added)

In watching the young nation come close to collapse under the Articles of Confederation, the drafters of the Constitution thus had what they believed to be direct evidence that the common people could only be trusted so far.

Founding a democracy while not trusting the ability of common people to make decisions is obviously problematic. John Adams recognized this problem in 1776, when he said, “It is certain in theory, that the only moral foundation of government is the consent of the people. But to what an extent shall we carry this ‘principle?”

He went on to say:

The same reasoning which will induce you to admit all men who have no property, to vote, with those who have, . . . will prove that you ought to admit women and children; for, generally speaking, women and children have as good judgments, and as independent minds, as those men who are wholly destitute of property; these last being to all intents and purposes as much dependent upon others, who will please to feed, clothe, and employ them, as women are upon their husbands, or children on their parents.

Adams understood that simply opening the possibility of extending the vote and thereby giving political power to those beyond property-owning men was problematic because:

Depend upon it, Sir, it is dangerous to open so fruitful a source of controversy and altercation as would be opened by attempting to alter the qualifications of voters; there will be no end of it.

New claims will arise; women will demand the vote; lads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a farthing, will demand an equal voice with any other, in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to one common level.

The Constitutional Convention

It is not surprising that when early American leaders became delegates to the Constitution Convention, they brought their skepticism that the common people could make good decisions and elect the most qualified leaders.

Gouverneur Morris said to his fellow delegates, “We should remember that the people never act from reason alone. The rich will take advantage of their passions & make these the instruments for oppressing them.” Later, he said, “Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them.”

The underlying fear seemed to be this: If you let everyone vote, including the poor and those with less education, what will they vote for?
James Madison laid out the problem as he (and many of his contemporaries) understood it:

The right of suffrage is a fundamental Article in Republican Constitutions. The regulation of it is, at the same time, a task of peculiar delicacy. Allow the right exclusively to property, and the rights of persons may be oppressed. The feudal polity alone sufficiently proves it. Extend it equally to all, and the rights of property or the claims of justice may be overruled by a majority without property, or interested in measures of injustice. Of this abundant proof is afforded by other popular Govts. and is not without examples in our own, particularly in the laws impairing the obligation of contracts.

He went on to say that in a civilized and free society, personal rights as well as property rights must be guarded. The problem is this: If you limit the vote to people who have property, they may vote to limit the personal rights of others. But if you allow all people, including those without property to vote, the many (those without property) may vote to seize the property of the few.

In making his point, Madison also explained a concept known as the tyranny of the majority:

Who would rely on a fair decision from three individuals if two had an interest in the case as opposed to the rights of the third? Make the number as great as you please, the impartiality will not be increased, nor any further security against injustice be obtained, than what may result from the greater difficulty of uniting the wills of a greater number.

Another way of saying the same thing is: allowing non-propertied people to vote would be like two wolves and a lamb deciding on the dinner menu. There would be nothing to stop the wolves (those without property) from preying on the lamb.

At the same time, Madison understood that giving the vote only to the rich created problems because:

It is nevertheless certain, that there are various ways in which the rich may oppress the poor; in which property may oppress liberty; and that the world is filled with examples. It is necessary that the poor should have a defence against the danger.

The drafters sought to mitigate the potential problem of demagogues and to limit a possible tyranny of the majority by setting up institutional checks and balances so that, should a demagogue come to power, his ability to wreak havoc would be (at least somewhat) limited. Similarly, they viewed dividing the power and creating checks, particularly the judicial branch, as a way to help prevent a tyranny of the majority.

But they were less sure how to deal with the problem of defining who could vote. They understood that deciding who should vote and who should not vote was “a task of peculiar delicacy.”

As far as they were concerned, universal voting rights were obviously out of the question. The enslavers who wrote the Constitution had no intention of giving up the institution of slavery. The drafters of the Constitution (with perhaps a few exceptions) didn’t believe women were capable of thinking about the complex issues involving government and politics. Moreover, they viewed women as property under the dominion of men, which essentially gave a married man two votes.

Even limiting the vote to white men created difficulties in setting down a rule. Where would they draw the line? What should the age requirement be? How much education enabled a person to analyze complex political questions? What about well-educated people who happened not to own land because they were engaged in one of the professions and frequently traveled?

The drafters of the Constitution understood that they needed popular support if the Constitution they drafted would have any hope of being ratified. How would they win popular support if they put right there, in the Constitution itself for everyone to see, that the majority of Americans would have no voice and that “we the people” didn’t really mean “all the people”?

So the Founders Kicked the Problem Down the Road

They opted to leave the issue of who should vote out of the Constitution. Instead, they designated authority for deciding who should vote to the states. This is from Article 1, section 4:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

(When the above was ratified, Senators were chosen by state legislators. The 17th Amendment changed that. Under the 17th Amendment, Senators are elected by the people.)

What happened next was just what you’d expect. People who were excluded wanted to be included and thus began the struggle for the right to vote, which began when the nation was founded and continues to the present day.