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Kennedy correct: voting a privilege, not right

When Louisiana’s junior Republican Sen. John Kennedy calls voting a “privilege,” constitutionally he’s correct.

Kennedy, who occasionally moonlights teaching constitutional law at Louisiana State University in Baton Rouge, made that remark incident to a feud over which felons may vote between GOP Sec. of State Kyle Ardoin (currently standing for his current job on Dec. 8) and Democrat Gov. John Bel Edwards. His statement came under question in a column by the Baton Rouge Advocate’s Mark Ballard (I am contracted to write a weekly opinion column for The Advocate).

Ballard’s allegation reads in full:

Actually, voting is one those unenumerated rights protected under the Ninth Amendment of the U.S. Constitution. The Constitution underlines voting as a right, rather than a privilege, in the 15th Amendment, which allows African Americans to vote; the 19th Amendment, which allows women to vote; the 23rd Amendment, which includes the District of Columbia in the electoral college; the 24th Amendment that prohibits poll taxes and other hurdles to registration; and the 26th Amendment that allows 18-year-olds the right to vote.

Problem is, constitutional scholars essentially back none of what he cites as corroboration of voting as a right. To begin with, no jurisprudence supports the notion that a “right” vote exists within the Ninth Amendment, which reads “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Originally, the Ninth Amendment came as a response to the remainder of the original Bill of Rights as a measure indicating, just because other amendments listed rights, that didn’t make the listing comprehensive. But at the same time, neither did it empower the judiciary to create rights out of thin air, which Ballard (joining a long list advocates stumping for imagined rights in this fashion) attempts to do. Properly conceived (and especially so when understanding its original language that forbade the federal government from enlarging its own power), it was intended to be nothing more than a rule of construction or a guide for understanding how the Constitution was meant to be interpreted.

As for the other amendments listed, these don’t create a right to vote for various groups but instead prevent government (both federal and state through the Fourteenth Amendment, which actually has the strongest claim to specifying a “right” to vote) from restricting the use of suspect categories and practices where it legislates on who may vote.

For the fact is, jurisprudence is that the right to vote in state elections isn’t at all guaranteed. States may restrict voting in any number of ways as long as it can demonstrate a “compelling” state interest by doing so. Until these amendments came about, they had complete discretion in picking and choosing, although the equal protection doctrine that presently governs these kinds of cases didn’t develop until the 20th century. At its end, the U.S. Supreme Court reaffirmed that “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States.”

Even individuals and groups who share Ballard’s leftist sympathies admit this. Thus, many liberals back an effort to amend the Constitution precisely to write in an affirmative right to vote. Keep in mind that a “right” exists inalienably (although it may be subject to the whims of interpretation as to its extension) while a “privilege” comes about when government may constrain its exercise to some degree.

Therefore, voting takes on more of a character of “privilege” than “right.” Perhaps best exemplifying this, people who commit a felony and serve under an order of imprisonment in Louisiana cannot vote (although in a few months, courtesy of a recently-passed law, even those still under such an order not in prison after five years will regain that capacity). The enjoy the privilege of voting, in essence, during good behavior.

As another example of how voting definitely is not inalienable, states constitutionally may prohibit people from voting on the basis of mental incompetence. Louisiana has some of the most restrictive requirements that may do this even though people under judicially-declared guardianship (the state’s standard) may have a good understanding of how elections work and of the issues at stake in federal, state, and local elections.  

In short, unless amending the Constitution to change this, Kennedy is right and Ballard is wrong.

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