Preamble to the United States Constitution

Preamble to the United States Constitution

The history of voting in the United States is ever-evolving. As we have changed as a society, so have our ideas about who is a citizen and who has a right to vote. The Founding Fathers said little in the Constitution about voting. It was left up to each state to decide on eligibility. For nearly a century after the Constitution was written, voters were almost entirely white men who owned land. After the Civil War, men of all races were given the right to vote. Fifty years later, women finally won that right, too. The third segment in our series on “The Constitution Today” examines how voting rights have evolved over time.

Guests

  • Henry Chambers Jr. professor of law, University of Richmond.
  • Michael Quinn president and executive director of James Madison's Montpelier.
  • Marcia Greenberger founder and co-president of the National Women's Law Center.

The U.S. Constitution: Full Text

Constitution

Transcript

  • 12:06:53

    MS. DIANE REHMThanks for joining us, I'm Diane Rehm. When the "Constitution" of the United States was ratified in 1789, most voters were white, property owning men. Over time, battles were fought, protests waged to secure voting rights for all Americans regardless of race or sex. Voting is at the essence of our democracy, but today, far too many Americans who can vote do not choose to exercise that right. In the third segment in our series, The Constitution Today, we explore the evolution of voting rights. Joining me in the studio, Michael Quinn of James Madison's Montpelier, Marcia Greenberger of the National Women's Law Center and Henry Chambers Jr. of the University of Richmond.

  • 12:08:02

    MS. DIANE REHMI know many of you are considering your vote. I hope all of you are heading to the polls tomorrow. Do join us, 800-433-8850, send us your e-mail to drshow@wamu.org, join us on Facebook or Twitter. Good morning and welcome to all of you.

  • 12:08:30

    MR. MICHAEL QUINNThank you.

  • 12:08:30

    MR. HENRY CHAMBERS JR.Good morning.

  • 12:08:30

    MS. MARCIA GREENBERGERThank you.

  • 12:08:31

    REHMGood morning, Michael, tell us what the "Constitution" as it was originally written actually says about voting.

  • 12:08:43

    QUINNWell, Diane, it doesn't really say much. It's only provision for it really relates to the creation of Congress and specifically the House of Representatives within Congress specifying that the members will be chosen every second year by the people of the several states. And it doesn't really get into who the people are, who is eligible to vote, in effect at the time of the writing of the "Constitution." Although it was authorized by the people of the United States, it really left the definition of citizenship and of who was eligible to vote and hold office to the states themselves. And that was really the sort of the concept at the time of the writing of the "Constitution."

  • 12:09:32

    REHMWhy do suppose they couldn't have addressed it more?

  • 12:09:37

    QUINNWell, I think it was a very practical reason. One is that if they had tried to address who is a citizen, they would have run right into the issue of slavery and there were plenty of evidence that that was a non-starter at the time because they really couldn't deal with that issue at the time. And at -- the second reason, Diane, is that the founders didn't sit down in a quiet environment and construct a philosophical theory of government. They were in the midst of trying to knit a nation together at the time it was falling apart, so they were literally trying to find -- make a way to make it work. At the same time, they are striving to hang that on a coherent intellectual framework.

  • 12:10:26

    REHMMichael Quinn, he's president and executive director of James Madison's Montpelier. Hank Chambers, who and how was it decided who was going to be able to vote?

  • 12:10:43

    JR.Well, that's a great question and it picks up on part of what Michael talked about before in terms of figuring out who were citizens and who were not citizens. What the "Constitution" does when talking about the House of Representatives is suggest that the people who can vote for Congress people are the same ones who can vote for state legislators. What that means is that the state decides who can vote, what reasons and everything in terms of who's available to vote.

  • 12:11:13

    JR.Now, one thing that's a little interesting is that it's not the case that all citizens could vote. Just look at women, as I'm sure Marcia gonna talk about before too terribly long, but even when you're talking about men, there were times when non-citizens were allowed to vote in certain contexts. So it's -- the notion that only citizens vote and that all citizens vote is a pretty new concept and really was not what the founding fathers had done at the time.

  • 12:11:40

    REHMSo -- but then you had the electoral college. How did that get into the voting area?

  • 12:11:51

    JR.Compromise. And compromise is the way the "Constitution" as a whole was -- was dealt with. You had a group of folks who wanted to maintain state sovereignty and the states as the locus of power under the "Constitution." You had the other side, which really went out, which had the people as the real locus of power under the "Constitution." What we came up with the electoral college, which only applies to selecting the president, was the notion that you don't wanna have the people directly electing the president. You don't want it to just be a popularity contest, but by the same token, you don't wanna use the Congressmen and Senators to select the president.

  • 12:12:29

    JR.So we come up with an electoral college, an in-between body, where you have individuals who are chosen by the people in their various states who they meet to determine who the president's going to be. It was a lot more fun and a lot more interesting in the late 1700s and the early 1800s before we really had a sense of how the electoral college was going to work. Indeed, I'm sure you've had some guests on who have written books about the election of 1796 and the election of 1800, which, let's just say, it was -- it puts Bush versus Gore to shame in terms of fun.

  • 12:13:03

    REHMMichael.

  • 12:13:04

    QUINNWell, the other reason for the electoral college was a sense that you kind of refined democracy a little bit, that you end up with the wisest, most capable among the population making up the electoral college and therefore, they will know who the best candidates, the most qualified are and make an informed choice. I don't think the electoral -- as Hank pointed out, I don't think the electoral college has ever quite worked in the way the founders envisioned.

  • 12:13:29

    REHMAnd there's still people who think we ought to do away with the electoral college. Marcia?

  • 12:13:36

    GREENBERGERWell, there's certainly been debates throughout history about the role of the electoral college. The other thing that I think it reflects is not only this step between the popular vote and the ultimate election outcome, but also, it reflects a balance in terms of how many, how much will be given to the states and empowering small states versus larger states in the composition of the electoral college, so that it also was a compromise between the bigger states, the smaller states, the direct electorate, the filter that was described earlier.

  • 12:14:21

    REHMHow was it, Hank, determined that the Senate would be composed of two individuals from each state and the House would be based on population?

  • 12:14:39

    JR.That was a big compromise at the Constitutional Convention. That problem or that issue between state power versus people power was the issue. So we had a situation where James Madison, for example, wanted both houses to be based on the representation of people, but you had small states who said, well, look, because we're small states, we're gonna lose any power that we have under this new system. And as a consequence, we want to have some way to exert power in some house that allows us to make sure our interests are met. So the Senate came about in precisely that way, to make sure that every state was treated equally. Raises the question as to whether or not it's really fair to allow the folks in Wyoming to have two Senators and to have the folks in California have two Senators at the same time.

  • 12:15:33

    REHMWas it, at the time, thought that there would be political parties or was everybody sort of operating one for all and all for one? Michael.

  • 12:15:48

    QUINNWell, if you look at what the founders were writing, they viewed political parties, they use the word faction, as a bad thing and they were very hopeful that they wouldn't come about. Madison wrote about it in the "Federalist Papers." Interestingly enough, however, Madison with Jefferson formed our nation's first political party and Madison was ultimately to observe that he felt that political parties were almost inherent both in human nature and in the constitutional system.

  • 12:16:17

    REHMWell, now, speaking of human nature, how was citizenship defined at the time the "Constitution" was written?

  • 12:16:29

    QUINNWell, it really wasn't defined, Diane, not in any strict legal manner. You know, again, they were trying to make a system that worked. If you read the "Constitution," you will find the word citizen, you will also find the word person and people, neither term is really defined. They had a general concept of citizen and it probably encompassed those were resided permanently in the states, but nowhere do you find an explicit definition. They really avoided that topic because it got them into the issues of slavery, of the rights of women, of men who didn't own property.

  • 12:17:08

    REHMAnd Native Americans, Hank.

  • 12:17:11

    JR.Sure, let me add one point. We look at the question of citizenship now and because we use the term so freely and because it's defined relatively well now, we forget, just as Michael said, how undefined it was. Indeed, if you go back and read the Dred Scott case, the Dred Scott case is completely confused on the question of who's a citizen and who's not and indeed, you see Chief Justice Taney trying to figure out, well, who's a citizen and who's not? And he doesn't do a terribly good job of it.

  • 12:17:42

    JR.Let me throw out one additional situation that caused some real consternation at the time and that is how do you deal with free blacks who had been slaves and who are now free or who were born to free blacks? Citizens, not citizens? Dred Scott was a mess on that particular issue and caused, well, pretty much the Civil War, in large measure.

  • 12:18:03

    QUINNNo, that's true. And, in fact, one of the dissents in Dred Scott talks about that in at least four states at the time of founding, there were free blacks who participated in the ratification of the "Constitution," so how could they be really expelled and degraded to a status below that of citizen?

  • 12:18:24

    REHMMichael Quinn, president and executive director of James Madison's Montpelier, Marcia Greenberger of the National Women's Law Center, Henry Chambers Jr. of the University of Richmond. Short break and we'll be right back.

  • 12:20:03

    REHMWelcome back to our continuing series on The Constitution Today. And here in the studio, Marcia Greenberger, she's founder and co-president at the National Women's Law Center. Henry Chambers Jr., who goes by Hank, is professor of law at the University of Richmond. Michael Quinn, he's president and executive director of James Madison's Montpelier.

  • 12:20:36

    REHMHere's an e-mail from Guarina who says, "I'm eager to hear your show today and especially in regard to Native American voting rights. As the first peoples on this continent, they were the last to get the right to vote in 1925. So in fact, not all men, citizens were allowed to vote originally. I know that we Native Americans were not even considered citizens until about 1920, which is a bit ridiculous, but don't you think Native American voting in history is something that is rarely spoken about? And I am sure affects the way Native Americans vote today." Hank.

  • 12:21:34

    JR.I think that's right. You run into a problem in terms of dealing with our Native American friends, citizens, because we just have not treated Native Americans the way that we've ever treated other citizens. Indeed, some of the laws that were around, particularly pre-Dred Scott, some of them simply treated African Americans or -- well, African Americans at the time is pointless -- treated Africans and enslaved people and even free blacks as being the same as Native Americans. Other laws treated them precisely differently.

  • 12:22:09

    JR.It's a very, very interesting issue that pops up. And of course, there's the additional issue of Native American sovereignty and the question of how Native Americans can have dual sovereignty and dual citizenship inside of the borders of the United States. So it's an incredibly complicated question and we're still lurching toward true equality in that respect.

  • 12:22:29

    REHMAnd in that regard, let's talk about the Reconstruction Amendments, 13th, 14th, 15th. The 13th in 1865, which says neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or anyplace subject to their jurisdiction. What does that tell us, Michael?

  • 12:23:08

    QUINNWell, it tells us very simply that slavery is abolished, that no one can be held in lifelong chattel hereditary slavery. What it does not do is say what are those free slaves? What is their place in our society? It doesn't yet define them as citizens, it doesn't assign them any rights, so...

  • 12:23:29

    REHMSo we're still confused at the time of that writing, Hank.

  • 12:23:35

    JR.Yes, indeed. We still have absolutely no idea what rights come with being free, but we know that you can't do certain things to people to treat them as slaves, but we still don't know what it means to be free and whether being free means that you're a citizen.

  • 12:23:51

    REHMMarcia.

  • 12:23:53

    GREENBERGERWell, I'm thinking as we're discussing this evolution and right to vote and certainly, the most dramatic and, I think, life altering in our country's history, movement of the Civil War and the abolition of slavery. Also, when we think about the same arc for women and women suffrage, that it had begun. And in many ways, during this Civil War period and the Abolitionist Movement leading up to the Civil War and these Reconstruction Amendments, women became radicalized as abolitionists speaking out, getting the right, ultimately claiming the right, demanding the right to speak in front of audiences, both men and women, which was a radical notion.

  • 12:24:48

    GREENBERGERThey were radicalized when they were excluded from being able to participate in worldwide conventions on abolition, represent the United States because they were women, so there was an effort at the time to get suffrage for women as well as for slaves. Obviously, that did not happen and there were even lawsuits brought. We haven't quite gotten to the 14th Amendment yet about whether the 14th Amendment would give women, as well as newly freed slaves, the rights of citizenship.

  • 12:25:23

    REHMSo what happened on that 14th Amendment, Michael?

  • 12:25:27

    QUINNWell, the 14th Amendment addressed the issue of what are the freed slaves and it establishes that they are citizens of the United States. And this really is sort of a landmark change in the whole concept of sovereignty, back to what Hank said about is sovereignty in the states or is it the people. What the 14th Amendment does is it really establishes that you are a citizen of the nation of the United States. That gives you power, that gives you rights and that therefore makes you a citizen of a state and so it really is a final addressing, or beginning to be a final addressing, of sort of the omission of the founding.

  • 12:26:07

    REHMExcept that it does not mention women. It talks about everything but women, Marcia.

  • 12:26:19

    GREENBERGERWell, there was a very heated battle and at the end of the day, women were consciously excluded from the right to vote. And it took until 1920, with an extraordinary period in -- of history, before women were able to get that vote.

  • 12:26:44

    REHMHank.

  • 12:26:45

    JR.You're absolutely -- Marcia's absolutely right about that. What becomes interesting is the way that it was defended. The concept that, well, women are virtually represented by their spouses and they really didn't need to get into that nastiness of politics. It's just it strikes us as being bazaar right now. At the time, it seemed a little bit more sensible, but right now, it strikes us as bazaar. I do wanna mention one additional piece of the puzzle, however, about voting rights. It's that the 14th Amendment does not secure voting rights even for all African American men.

  • 12:27:21

    JR.The -- there's an interesting section of the 14th Amendment, Section 2 of the 14th Amendment, which essentially says that if a state decides that it wants to disfranchise African American men for reasons other than committing crimes, then you can take away a certain amount of representation of that state from Congress. What's unclear is whether that is a prohibition on the state from taking those actions or whether that's merely a penalty. So it becomes kind of interesting 'cause it's pretty clear after the 14th Amendment, that voting is still a political right that's not really covered as a true civil right under the 14th Amendment.

  • 12:28:03

    REHMSo it's not until the 15th Amendment, which was ratified in 1870, that finally says the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude. And still, Marcia Greenberger, no mention of women.

  • 12:28:38

    GREENBERGERWell, very explicitly not mentioned. It's explicitly described for men and what's also so interesting at the time is, especially in the west, some of the territories were giving women the right to vote at that very moment. In 1869, Wyoming gave women the right to vote. In 1970 -- excuse me, 1870, the Utah territory gave women the right to vote.

  • 12:29:05

    REHMSo they were acting on their own without any permission from the federal government, Michael.

  • 12:29:15

    QUINNThat's absolutely true, but you do see the principle established here that the federal government, at the national level, is now defining what citizenship is. And this is part of the evolution of the "Constitution." I think one thing we should all remember is that when the "Constitution" was written, it -- we have continued to write it and to perfect it. I mean, the whole -- the "Constitution" starts out talking about to achieve a more perfect union and we're -- we're part of that continuing process to this day.

  • 12:29:46

    REHMWell, perfect is a word that's in the ear of the beholder, isn't it? You've got some individuals who believe that the 17th Amendment, which actually calls for the direct election of U.S. Senators by voters, should be repealed so that you have members of the House voting for U.S. Senators. Is that correct, Michael?

  • 12:30:20

    QUINNUnder the original "Constitution," the members of the Senate were appointed by the state legislators.

  • 12:30:26

    REHMI see.

  • 12:30:27

    QUINNNot -- and so the 17th Amendment changed that to direct election by the population of the state.

  • 12:30:34

    REHMSo now you have some individuals who want to overturn that.

  • 12:30:40

    QUINNThat's correct. Now, as Hank said, Madison and Hamilton did not like the idea of the Senate representing the states. Madison even said, what is this creation, this state? It's a fiction. What we're really concerned about are the rights of the individual of people.

  • 12:31:00

    REHMAnd finally, we come, Marcia, to the 19th Amendment, which was ratified in 1920. Give us sort of a brief outline of the Women's Suffrage Movement.

  • 12:31:16

    GREENBERGERWell, it ebbs and flows, as many movements do over time and I think probably one of the seminal beginnings that many people attribute it to was actually a little bit after our "Constitution" was adopted, with women, especially in England and some in France, demanding equality of the sexes in beginning our conversation. It was tied in, as was said, as Hank said, to this notion that -- especially that happened during the Industrial Revolution, that women are so pure, that they shouldn't sully themselves and therefore their home life and their raising of children with -- with concerns of this dirty politics in the state and that the husband will take care of those political matters and the wife needs to stay on her pedestal being protected from those kinds of things.

  • 12:32:23

    REHMA pedestal or regarded as chattel for quite a good while.

  • 12:32:29

    GREENBERGERVery true. And also at that time, there was a sense about women not being exposed even to education as we consider it today and that a wife would learn about -- or a young girl would learn wifely skills of homemaking, but not the kinds of worldly matter, so we didn't even have real education in scientific matters or classical matters for girls of first school in 1821, et cetera. Moving up until we get to the final Suffrage Movement, that's a whole story that we -- I know we'll get to.

  • 12:33:12

    REHMMarcia Greenberger, she's founder and co-president of the National Women's Law Center. And you're listening to "The Diane Rehm Show." One wonders over the years, and I'd like to hear all your responses, how women voters have influenced national elections in recent decades. Hank.

  • 12:33:41

    JR.Gosh, it seems to be that part of what's gone on is that folks have started to take women seriously as a force in and of themselves.

  • 12:33:50

    REHMAnd their issues.

  • 12:33:52

    JR.That's exactly right and some of those issues, of course, I view as being a combination feminist issues and male issues and they're issues that we all ought to see as being important male/female issues. For example, family issues strike me as being thought of sometimes primarily as women's issues, but I gotta tell you, with three kids of my own, I view them as being our issues, men and women's issues. And making sure that women can be all that they can be is something that I expect my daughter to be able to do and certainly my wife expects our daughter to be able to do.

  • 12:34:26

    REHMAnd indeed, healthcare for a long time was thought to be a woman's issue, Marcia.

  • 12:34:32

    GREENBERGERWell, even today, I think people look at women as the primary caregivers, the people who take children, that urge their spouses to go to the doctor, take care of the parents, in-laws and the like and have a big understanding and a big say about healthcare matters.

  • 12:34:52

    GREENBERGERGoing back to the right to vote, women went to jail. They went on hunger strikes, they were arrested. Some died to get the right to vote, which we're celebrating the 90th anniversary just this past August. My own mother, I'm pleased to say, she is in her 90s, she was born at a time when women did not have the right to vote. It wasn't until 1980 that the gender gap began to develop. And we hear that with political pundits and analysts to this day. Women have voted differently than men, differently than their husbands. It wasn't the husband that was going to represent the woman's view and that became force and clear starting in 1980 and not only that, the percentage of women voting began to be higher than men at that very same period.

  • 12:35:49

    REHMHmm, interesting. Hank, talk about the concept of one man or one person, one vote.

  • 12:35:59

    JR.Yeah, that's always a good interesting one because before the 1960s, you had jurisdictions which divided the legislatures into counties, for example -- so that for example, you could have an individual who's elected from a county with a very low population versus an individual elected from a city with a very large population. The recognition was that at the state level, that was unacceptable, so we tried to go through a process whereby we said, each person's vote ought to count the same amount as each other person's vote. It shouldn't matter whether you're in a rural area or a suburban area or an urban area.

  • 12:36:37

    JR.So what we did was in the districting process, we said, essentially, every district has to have the same number of people in it. That changed things substantially. Now you have power shifting from the rural areas to the urban areas and that made for a number of laws that looked kind of different. It looked very interesting and also gave some additional power to some folks who maybe hadn't had some power before. So you take that, you add it to the notion of the Voting Rights Act of 1965 and all of a sudden, you start to see African American legislators, female legislators in places where you've never seen them before.

  • 12:37:16

    REHMMichael.

  • 12:37:16

    QUINNNow, interestingly enough, although that did exactly as Hank said, you know, equal -- roughly equal population each district, it didn't prohibit gerrymandering and we still see gerrymandering now for political reasons.

  • 12:37:30

    REHMThat's for sure. Michael Quinn of James Madison's Montpelier. When we come back, we'll open the phones, read your e-mails and answer your questions.

  • 12:40:03

    REHMAnd welcome back. In our series on The Constitution Today, we are talking about voting rights. And during the break, we were talking about women's right to vote, how since 1980 that population of women has been out there voting and yet, Marcia Greenberger, the indications now are that there will be an ebb in that number in that population voting in this particular election. Why is that?

  • 12:40:47

    GREENBERGERWell, one of the big unknowns is what the turnout will be on the -- on election...

  • 12:40:51

    REHMOf course.

  • 12:40:52

    GREENBERGER...day tomorrow with many different theories about who will or will not vote, but there's a widespread expectation there will be a big drop in turnout. There often is in a midterm election...

  • 12:41:04

    REHMSure.

  • 12:41:04

    GREENBERGER...to start with, but even more. And there is, for the first time, speculation that more women, actually, will drop off and not vote. And I think you could speculate about a lot of different reasons why that may be the case. A sense of the fact that women are bearing the brunt in many ways of the economic downturn, feeling overburdened. One of the problems is getting to vote right now. Our country is -- makes it far more difficult for people to vote than others do and a sense of, I think, women not being sure at this point where their best interests lie and feeling overburdened.

  • 12:41:52

    REHMHere's an e-mail to exactly that point from Mark in Little Rock, Ark., who says, "Election day should be a paid national holiday. We complain two-thirds of eligible voters don't vote, meanwhile, people have to work harder everyday just to get by. Why should anyone work all day then stand in line from 5:15 until who knows when, while both parties appear to only respond to the big money paid by corporate interest? How many other democracies make their citizens work so hard to vote?" I think it's a good question, Michael.

  • 12:42:43

    QUINNI'm amazed by the question because it -- I mean, our whole system of nationhood is based on the idea that our -- the people of America are sovereign. This is one of the powers and prerogatives of being a citizen is you actually get to participate in picking the leaders and the representatives who pass our laws and carry them out.

  • 12:43:05

    REHMHank, what do you think's happened?

  • 12:43:08

    JR.A couple of issues pop up. I think the e-mailer's absolutely right, although, we may not go far enough, that is we don't -- we may not necessarily need to have an national holiday on that day if we follow the lead of some other states that allow a lot of early voting, that allow voting by mail and that allow folks to have absentee ballots for any number of reasons. What we see, of course, is that some states allow this quite liberally and other states simply don't allow folks to do that and as a consequence, you have to show up on election day. And that's exactly what the caller's talking about. And he makes a fantastic point. We've got to rethink how we do -- how we do voting if we want more people to vote.

  • 12:43:46

    REHMAll right. To Cleveland, Ohio, good morning, William, you're on the air.

  • 12:43:52

    WILLIAMGood morning. Two things. One, my sister gave me a book for my birthday about a lady named -- I think her name is Alice Paul and she had a lot to do with women voting.

  • 12:44:09

    REHMShe sure did. You're quite right, William.

  • 12:44:11

    WILLIAMAnd I'm gonna read it. And then number two, it really upset me, Diane, to hear Rand Paul make that comment about the Civil Rights Act and the Voting Rights Act at the beginning of his running for that Senate seat in Kentucky. He questioned the validity of the Voting Rights Act and I'm really sensitive about that and I wish that somebody would discuss what he said and I hope...

  • 12:44:34

    REHMAll right.

  • 12:44:35

    WILLIAM...the good people of Kentucky do not vote him in there. Thank you.

  • 12:44:38

    REHMAll right. Let me sort of give a general idea. Apparently, in May of 2010, Rand Paul said that had he been a Senator in the 1960s, he would have questioned Title 2 of the Civil Rights Act of '64, which prohibits businesses from discriminating based on race, religion or national origin. His position was he didn't like the federal government dictating exactly to whom a business could serve. Hank?

  • 12:45:24

    JR.It's an interesting notion that he would say that now and I hold no grudge or beef or what have you against Rand Paul, but that particular position is one that tends to be taken as a states' rights position on public accommodations. What's interesting is that in a number of ways, that's actually what got Judge Bork in trouble back in the late 1980s in terms of his confirmation, so that kind of thinking we thought had probably gone away, but it looks as though it may be coming back a little bit, although in fairness to Dr. Paul, he has walked those statements back, let's say, quite a bit.

  • 12:46:03

    REHMAll right. To Boston, Mass., good morning, Bastian, you're on the air.

  • 12:46:09

    BASTIANHi, good morning.

  • 12:46:10

    REHMHi.

  • 12:46:11

    BASTIANHi, good morning. My questions are quick it's do you guys think that voting is a civic duty or not? And are we responsible to participate and how far does this permeate our responsibility as a "citizen?" The second part is to achieve, as someone mentioned about the Madison, quote, "more perfect union," I believe is Madison, you would say rather than allowances for voting rights based on race, sex and what we've been talking about on the show until this far and how we don't allow 18-years-olds, for example, would we ever get to a point where instead of all of those things based upon our physiological types, our phenotypes and age and whatnot...

  • 12:46:46

    REHMOkay...

  • 12:46:46

    BASTIAN...do you think we'd ever get to a point where we'd have licenses based upon our knowledge of the issues?

  • 12:46:52

    REHMBastian, just to correct one thing you said, we do now allow 18-year-olds to vote. That came about during the Eisenhower administration when, in fact, it was said 1971 later, so it was said if a person is old enough to fight and go to war, that person is old enough to vote. Do you see it as a civic duty, Michael?

  • 12:47:27

    GREENBERGERI wanna...

  • 12:47:28

    REHMGo ahead.

  • 12:47:29

    QUINNI -- I think it's part of civics. In fact, that's why I was sort of stunned by the proposal that we pay people to vote. I don't think that participating in civic government should ever be viewed as something that is only done if you're kind of induced to do it. I think that's the -- the foundation of a free society.

  • 12:47:49

    REHMBut is having one paid holiday to vote, is that objectionable to you?

  • 12:48:00

    QUINNWell, certainly, it would be within public policy, just as we accommodate family medical leave, to accommodate leave for the purpose of voting and I think, I mean...

  • 12:48:11

    REHMBut if you regard voting as a civic obligation, then perhaps you put into a category of paid leave. Marcia?

  • 12:48:24

    GREENBERGERI wanna say a couple things. First of all, it is very true that there are all kinds of ways, certainly a paid day is one, but it could be on the weekends. It could be...

  • 12:48:33

    REHMSure.

  • 12:48:33

    GREENBERGER...expanded, it could be early voting. Registration is extremely difficult. People -- there are many ways that it could be facilitated at -- that we don't do -- at least certainly many states don't do right now. The other thing is giving people a right in the "Constitution" is one thing, the second big struggle is implementing that right and making it real and that was actually the -- began with the 1965 Voting Rights Act and there were so many hurdles and still today, so many hurdles, especially targeted to people who are low income and people of color. And obviously, that affects people of color and women who are large -- make up the larger percentage of the poor in this country today. Fewer polling places, longer lines, more questioning of their residency, foreclosures today make life much more difficult...

  • 12:49:39

    REHMOf course.

  • 12:49:39

    GREENBERGER...for people to vote, et cetera.

  • 12:49:41

    REHMHere's an e-mail from Barbara in San Antonio, Texas. She says, "Why should I vote on Tuesday when pollsters have been predicting a hurricane of Republican winners? I'm a Democrat. Why should I bother? It's over, they say. This is very demoralizing." What do you say to her, Hank?

  • 12:50:09

    JR.Oh, my goodness, go vote. For whomever you vote for. Here's the thing that gets to me. Margins matter. How people govern depends on what fear they face from the electorate the next time around and in some respects, even if you're voting for a candidate who is going to lose and they lose a fair -- may lose by a fair margin, the fact of competition may very well create some additional competition the next time around. I know that that seems like it's a little -- a little indirect as a reason to vote, but it seems to me that if you have a Congress person, for example, who wins 51, 49, they're gonna govern a lot differently than if they win 65, 35.

  • 12:50:52

    REHMWell, one would think, but that doesn't always happen. Here's a question from Peter in Tarrytown, N.Y. And I say that because if you recall the Bush v. Gore election, President Bush came in saying he had a mandate from voters.

  • 12:51:13

    JR.I agree, but he was a different kind of -- of leader, let's say. I'll put it this way, when my Congressman, I won't say who it is, did not have a real challenger last time, he at least has a challenger this time. And it's been interesting to at least see him try to actually run a little bit.

  • 12:51:33

    REHMHere's an interesting thought from Peter in Tarrytown, N.Y., "Has the electoral college ever voted in opposition to the citizens' vote within a state?"

  • 12:51:50

    QUINNThere -- there have been times. One -- there have been times when you've had one or two electors vote against the way the electoral -- the citizens voted.

  • 12:51:58

    REHMSo they are not obligated?

  • 12:52:00

    QUINNThey're not obligated, but it's very rare that they don't do that. It's very rare. You know, one of your earlier callers raised a point that I thought was -- I think is very interesting, which is the idea of who is a citizen. You know, the 14th Amendment, as the caller indicated says that if you're born in the United States, you are a citizen. And I know there have been recent calls to reexamine that. It's very -- it's a topic that is probably one that does require more thought and debate. You know, the issue you run into is that if it isn't a birthright, how does one obtain that right? And do you run the risk of establishing a class of residents who are not citizens or who -- or whose children could not become citizens? And these are very complex issues.

  • 12:52:51

    REHMAll right. To Argyle, Texas, good morning, Alex.

  • 12:52:55

    ALEXGood morning, Diane. Nice to be on your show again.

  • 12:52:57

    REHMThank you.

  • 12:52:59

    ALEXI wanna make a historical point regarding Wyoming and Utah. If I'm not mistaken, you can correct me if I'm wrong, Wyoming gave women the right to vote primarily because they needed 10,000 people in order to become a state and I think once Utah saw that, they decided to follow suit so that they could get representation in Washington and also be protected by the military. Am I wrong?

  • 12:53:27

    GREENBERGERI think there are always some practical considerations, but I like to think that in the west, the role of the women in establishing homesteads and the like made those legislators look at what was in their self interest.

  • 12:53:42

    REHMAnd you're listening to "The Diane Rehm Show." Let's go to Tom in Greece, N.Y. Good morning, Tom.

  • 12:53:50

    TOMYes, hello. Hello, Diane. First of all, this is quick. I just wanted to -- and then a quick question. I just wanted to ask -- to correct -- you did say it was the Eisenhower administration. It was Richard Nixon was president when the voting age was lowered to 18 by the 26th Amendment.

  • 12:54:08

    REHMThank you.

  • 12:54:08

    TOMBut I just -- yeah, but I just wanted -- that was 1971...

  • 12:54:11

    REHMSure.

  • 12:54:11

    TOM...and I remember it, too, but it was primarily because of the Vietnam War, I think. But also, one of your guests -- one of the guests said that there was a time sometimes non-citizens did vote and I was wondering about that. When did non-citizens vote and who were they?

  • 12:54:27

    JR.Yeah, they were back around -- this is Hank Chambers. They were around -- back in the Colonial and just post Colonial time period. and it was when you had situations where you based voting on the amount of property that you held, so there are times when you just had non-citizens who voted and, of course, one could very well argue that any time you had free blacks voting who may not have technically been citizens, you also had some non-citizens who were voting. We see that, of course, popping up in certain local elections up here. I think Takoma Park either used to or may still have -- allow in certain circumstances folks who may not necessarily be citizens to vote. Although, I may be wrong about that.

  • 12:55:02

    REHMAll right. And final question, in Charlotte, N.C., good morning, Bob.

  • 12:55:09

    BOBGood morning. Some people have suggested that perhaps only those who pay taxes should be allowed to vote and so keeping the people who pay the bills the ones that make the decisions as to how the money is spent.

  • 12:55:22

    REHMWhat do you think, Hank?

  • 12:55:24

    JR.Well, there's a big problem with that in that whether you technically pay taxes or not doesn't necessarily mean that you -- that doesn't depend -- or I should say, that doesn't trigger whether you're providing anything to the populous or not and whether you're providing anything to the country or not. So you run into the problem that taxation as a single reason to allow folks to vote is a little narrow. I'd be also a little concerned about folks who may not necessarily have jobs. The mere fact that they don't have jobs certainly wouldn't suggest that they are not a part of the citizenry.

  • 12:55:53

    QUINNYeah, the original concept of property owner was really intended to get to -- isolate those people who really were attached to society and had a stake in its further development and improvement, but I think as Hank has pointed out, if you think that through, whether it's property ownership, wealth, paying taxes, that has some very bad consequences.

  • 12:56:14

    REHMI should say. Marcia, last word.

  • 12:56:17

    GREENBERGERWell, I wanna go back to the woman who said, why should I vote?

  • 12:56:21

    REHMYeah, good.

  • 12:56:21

    GREENBERGERAnd I think as summarizing not only how many people fought wars and died and went on starvation campaigns to get the right to vote, the very direction of our country depends on every single one of us coming out to vote and whatever pundits say, nothing happens until the electorate actually casts those ballots and that's what matters, so...

  • 12:56:44

    QUINNAnd we get who we vote for.

  • 12:56:45

    GREENBERGERWe gotta vote.

  • 12:56:46

    REHMAbsolutely. Michael Quinn of James Madison's Montpelier, Marcia Greenberger of the National Women's Law Center, Henry Chambers Jr., professor of law at the University of Richmond, thank you for your comments this morning. Thank you for being here.

  • 12:57:08

    JR.Thank you, Diane.

  • 12:57:09

    QUINNThank you.

  • 12:57:09

    GREENBERGERThank you.

  • 12:57:10

    REHMAnd thanks for listening, all. I'm Diane Rehm.

  • 12:57:14

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Susan Nabors, Denise Couture and Monique Nazareth. The engineer is Tobey Schreiner. Dorie Anisman answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information.

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