The Right to “Consent”: A New Path to Protecting Our Voting Rights
The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.
By Carroll G. Robinson & Michael O. Adams
(First Published on April 29, 2022)
To The Point
The right of “the People” to “consent” to being governed is more than a civil—or even constitutional—right; it is an “unalienable right” of natural law granted to each of us by our “creator” that can never be “annihilated” or “abridged” by the government—local, state or federal.
The right to vote is a manifestation of the People’s right to “consent” and any infringement upon our right to vote—or regulatory burdens thereon—is a constitutional violation of the “Legislative powers” of the “People” as articulated in the Declaration of Independence and inherent in the federal constitutional structure.
The historic view that the Federal Constitution is simply a structure of “checks and balances” between the three branches of the federal government and a documentation of separation of powers—federalism—between the federal government and the states, reflect a wholly insufficient understanding of the founding history of our nation, the ratification debates surrounding adoption of the Federal Constitution and the reasons for what we now refer to as the Bill of Rights.
The original structure of the Federal Constitutional and the Bill of Rights—and even our later amendments—were all designed to protect the People’s right to “consent”, even though the original document attempted to annihilate a power that is “incapable of annihilation” as it relates to Native Americans, Black people and women. Later, this unnatural infringement was expanded to include Hispanic people.
The right to “consent” is woven into the constitutional fabric and framework from start to finish. Democrats and civil rights advocates must use the right to “consent” as the new foundation upon which to fight to protect the People’s right to vote.
The Longer Explanation
If, as Republicans argue, there is an inherent constitutional right under the Second Amendment to carry a gun without any state regulation or identification requirements, then most certainly the right to vote is a natural right inherent in citizenship and constitutionally guaranteed and protected by the First, Ninth, Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments to the Constitution of the United States, without the need for state regulations or restrictions. In other words, what is good for the gun owner, must also be, and is, good for the voters.
In the Declaration of Independence, the Founders of our nation expressly stated, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness…That to secure these rights, Governments are instituted among Men [humanity], deriving their just powers from the consent of the governed….” This statement is simultaneously a religious, philosophical, transformational, practical and political assertion. It is both a repudiation of monarchy and an embracing of the Protestant Reformation belief that people did not have to go through another, or singular, person to commune with God.
The Founders revolutionary self-evident truths raise at least four foundational and fundamental questions. First, what are the other unalienable rights beyond Life, Liberty and the pursuit of Happiness? Second, is the right to “consent”/vote an unalienable right? Third, what did the Founders mean by the consent of the governed? Fourth, how is consent to be expressed by the governed?
Throughout the Declaration of Independence, the Founders, on multiple occasions, specifically reference the King’s violation of their right to consent by him dissolving “Representative Houses repeatedly” and “For imposing Taxes on us without our Consent…” just to cite two examples. Almost all of the complaints against the King justifying the Revolutionary War touch on the right of the colonists—the People—to express their consent to governance decisions and the administration of government, including the operation of the criminal justice system, the insufficiency of due process and a lack of civilian control over the military.
On its face, taken as a whole, The Declaration of Independence makes it abundantly clear that for the governed to consent they must have a voice in their government, its governance, public policies and administration—and their voice is their unalienable right to vote.
In our nation, the way the governed express consent is at the ballot box. In this age of technological innovation and transformation we may soon be able to utilize a digital ballot box to more inclusively increase participation and more efficiently democratize elections, in our nation. (See generally, Thomas Friedman, Calling All Luddites, New York Times, August 3, 2005.)
In the Declaration of Independence, the Founders of our nation also wrote, “He [the King] has refused for a long time, after such dissolutions [of Representative Houses], to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise….”
Since “Legislative powers” cannot be “annihilated”, and in fact, under nature’s law, belong to the People at large and are only delegated by them to legislators, then the People’s right to vote is inviolate and cannot be abridged or “annihilated” by any state or the federal government.
Even when incarcerated, the right of citizens to vote should not be denied. This includes their time on parole or probation. At a minimum, the state should be required under our current criminal justice practices to notice people when their right to vote has been restored as it was only suspended and not “annihilated.” We need such an automatic restoration notification law in Texas.
Even the United States Supreme Court has acknowledged that it was the people, through their colonial legislatures, that created the federal government.
The “States”—state governments—have no power independent of that which has been delegated to them by the People of their state as contained in their state constitution.
The right to vote is not a civil right. The Voting Rights Act is not where the right of Black, Hispanic, Asian and other people of color to vote comes from. It is not even the Civil War Amendments. Those amendments were, in fact, intended to reaffirm and protect the rights we already had naturally.
Strict constructionists and originalists can’t ignore or dismiss the expansive meaning of citizenship and the right to “consent” in the full context of our nation’s history inclusive of the Revolutionary War, the Civil War, the Civil Rights Movement and its grounding in the Human Rights Movement.
Voter registration requirements, voter identification laws and limitations on mail ballot access violates the right to “consent” as well as, at a minimum, the Ninth and Fifteenth Amendments to The Constitution of the United States.
The Fifteenth Amendment expressly says, “The right of citizens of the United States to vote shall not be denied or abridged (BOLD word) by the United States or by any State on account of race, color, or previous condition of servitude.”
The Ninth Amendment is an express reminder that the People have rights and protections guaranteed beyond those expressly stated in the Federal Constitution.
Finally, under the Texas Constitution, Article I, Section 3, Texans also have a state based right to consent/vote.
As a general matter of constitutional law, state based constitutional protections are stronger and much more comprehensive than federal constitutional protections. Federal constitutional protections are generally viewed to be the minimum level of protection available to Americans and the residents of our nation.
As conservative judges and United States Supreme Court Justices continue to undermine and gut the Voting Rights Act, and Congress fails to deliver a renewed and strengthened Voting Rights Act, voting rights advocates need to change our tactics and strategy and do what conservatives are doing—going directly to state and federal constitutions as the source of our rights and ability to defend them. Federal legislation is good, but not necessary to defend our right to “consent.”
The Federal Constitution, our individual share of the Legislative powers of our state and the federal government, as well as our natural right to “consent” as the governed, provide sufficient grounds to defend our right to vote.
Authors: Robinson and Adams are tenured faculty members in the Political Science and Public Administration Department at Texas Southern University’s Barbara Jordan-Mickey Leland School of Public Affairs.
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Last updated: 05/05/2022