Although it is true that no provision of the Constitution provides
explicitly that citizens have the right to vote, long-standing
constitutional doctrine holds that the fundamental rights strand of the 14th
Amendment does include the right to vote.  See Harper v. Virginia Board of
Elections; Kramer v. Union Free School District; and Reynolds v. Sims.  The
lack of explicit language in the text of the Constitution allows for more
confusion than one might desire -- see the incorrect statement of the law
found in Bush v. Gore mentioned below -- but it does not necessarily mean
that the right is under-protected.  Privacy is nowhere mentioned in the
text, but substantive due process protections for women's right to choose,
unmarried people's right to use contraception, and all people's right to
engage in consensual sex remain strongly protected under constitutional
doctrine. 
Adam Winkler
UCLA School of Law

-----Original Message-----
From: ban@richardwinger.com [mailto:richardwinger@yahoo.com] 
Sent: Thursday, December 11, 2003 12:13 PM
To: Guy-Uriel Charles
Cc: election-law@majordomo.lls.edu
Subject: McConnell v. FEC: The big picture

But Justice Breyer took an oath to support the
Constitution.  There is no general right to vote in
the US Constitution.  That's why it was apparently
legal for the Florida legislature to be passing a
bill, saying the legislature was going to choose the
presidential electors in 2000.  That's why states can
still ban ex-felons from voting.  That's why D.C.
still has no voting representation in congress, and
why U.S. citizens living in the territories can't vote
for president.  That's why the Georgia legislature can
enforce a Democratic-Republican ballot monopoly in
U.S. House races that has lasted unbroken for 60
years.

We desperately need an amendment to the US
Constitution to solve the problem that there is no
general right to vote in the US Constitution.  In the
meantime, where does Breyer get the authority to
override the text of the US constitution (the First
Amendment), in favor of a democratic ideal that isn't
in the text?

--- Guy-Uriel Charles <gcharles@UMN.EDU> wrote:

I think the Court did take the First Amendment
issues seriously but they 
also recognized that there are competing democratic
principles at 
stake.  As Rick notes, the majority opinion clearly
reflects Breyer's 
influence and his approach to addressing campaign
finance issues.  
Breyer's approach employs judicial review to
vindicate democratic 
practices and to assure democratic practices serve
multiple democratic 
ends. The approach is outlined not just in Shrink
but in Breyer's 
lecture published at 77 NYU L Rev. 245 (2002). 
The question for me is whether this balancing
approach is going to be 
applied to other issues of law and democratic
politics or is it limited 
to campaign finance.  In my recent California Law
Review article, I 
argue that Breyer's approach is applicable more
broadly.  But the jury 
still out on that question.
guy

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