What it Means to Be a Citizen
To claim the title of Citizen is to accept the burdens of Citizenship.
In a recent article in The American Spectator, Gary Anderson asks the question, “should people earn the privilege to vote?” In a country where the mantra is “one person, one vote” such an assertion seems heretical. However, it is clear from his article that he is not just proffering a restriction of suffrage, he is proposing a two-tiered system of citizenship. Such a suggestion is abhorrent to a nation that suffered through the odious scourge of “separate but equal.” Anderson admits such a proposal is “unlikely” to ever be implemented but, instead, offers his modest proposal[1] as a means to “stir up enough debate to make many people re-examine what it means to be a citizen.” I could not agree more that the responsibilities of citizenship require a thorough reexamination.
Anderson comments that “[o]ur Founding Fathers never saw voting as a right. Rather, they viewed it as a privilege and a civic duty.” His statement is true, but Anderson does not build upon it. Instead, he covers the entire history of U.S. voting rights in a single paragraph. Perhaps his editor limited his word count; a shame, because the explication of this observation would bolster his argument far more than his use of Robert Heinlein’s classic novel as an exemplar. Fortunately, I am under no such restriction.
The history of voting rights in America spans across two centuries of court cases and constitutional amendments. To survey them all would take volumes, but it can be summarized succinctly as gradual shift away from a civic duty to a fundamental right. That shift in thinking was influenced by 18th century Romantics in France and Utilitarians in England, 19th century socialists in Germany, and 20th century progressives in America.
About the time the delegates were meeting in Philadelphia for the First Continental Congress, Edmund Burke was being elected to the borough of Malton in Yorkshire.[2] To call it an “election” was stretching the term. Burke had been MP for Wendover, but Lord Verney, his patron who “owned” that seat, was in financial difficulty and was therefore “selling” it.[3] Burke turned to another patron, the Marquess of Rockingham, to find another seat. Parliamentary seats had developed through custom since the 13th century, expanding and contracting erratically and being heavily weighted toward the landed gentry. By Burke’s time, Parliament consisted of 558 seats, but the rural county seats were outnumbered by the city and borough seats, which counted for 405 of them.[4] The seats were unevenly divided between cities and did not proportionally reflect the population. For example, Cornwall had 44 seats, London had 10, and Birmingham had none.
In addition to getting the blessings from his patron, Burke had to get the support of the freeholders. Since at least the 14th century, the franchise had been restricted to owners of property worth at least a specified amount (forty shillings by the reign of Henry VI).[5] This property qualification existed, in the eyes of Burke and others, as a method—albeit imperfect—for ensuring the powers of the state were entrusted to only those who would wield it wisely and with restraint. Burke called the idea of majority rule “one of the most violent fictions of positive law.”[6] Burke spoke for many when he wrote that the reigns of government should be limited to a “natural aristocracy” defined, not by birth necessarily, but by those with the wealth and leisure “to read, to reflect, to converse; To be enabled to draw the court and attention of the wise and learned . . . to despise danger in the pursuit of honour and duty; To be formed to the greatest degree of vigilance, foresight, and circumspection. . .”[7] In other words, the wealth requirement identified those “who from their success are presumed to have sharp and vigorous understandings, and to possess the virtues of diligence, order, constancy, and regularity, and to have cultivated a habitual regard to commutative justice. . . .”[8]
This property qualification was carried by the English settlers to the colonies. By the time the U.S. Constitution being debated, each state had statutes limiting voting to males over the age of twenty-one who possessed land or property of at least twenty pounds—the exact amount varying by state.[9] For example, in Connecticut, the franchise was limited to men that had “maturity in years, quiet and peaceable behavior, a civil conversation, and forty shillings freehold or forty pounds personal estate. . . .”[10] Such language seems antiquated today, but it reflects a belief that voting should be limited to responsible citizens who have the sagacity to accept the gravitas of their civic duty.
The ratification of the Constitution made no alteration to situation. Article 1, Section 2 of the Constitution left it up to the individual states to decide who could vote.[11] “The states, in prescribing the qualifications of voters for the most numerous branch of their own legislatures . . . define who are to vote for the popular branch of their own legislature, and the constitution of the United States says the same persons shall vote for members of congress in that state.”[12] The Framers of the Constitution were wary of extending the franchise to the great bulk of the population. As Madison wrote in Federalist 10, “there can be no doubt that there are subjects to which the capacities of the bulk of mankind are unequal.”[13] All people possess virtue to some extent, but they are easily tempted by their passions and appetites.
Madison believed participation in government should be limited to “fit characters” whose “wisdom may best discern the true interest of their country.”[14] John Adams agreed with Burke that the powers of the state should be restricted to a natural aristocracy. “By aristocracy, I understand all those men who can command, influence, or procure more than an average of votes. Few men will deny that there is a natural aristocracy of virtues and talents in every nation and in every party, in every city and village.”[15]
These beliefs were enshrined into the Constitution, where Madison and the other Framers devised a republican system of government that insulated statesmen from the impulses of factions and allowed reason, rather than passion, to prevail. In a republic, as opposed to a democracy, it becomes possible to “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”[16] They understood from history that “[d]emocracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths.”[17]
This state of affairs went largely unchallenged by Americans until after the Civil War. The ratification of the Fourteenth Amendment raised questions about what exactly were the “privileges and immunities” of citizens.[18] In a series of cases in 1873, known as the Slaughter-House Cases, the Supreme Court interpreted the meaning of this phrase.[19] The Court said privileges and immunities are “the personal and civil rights which usage, tradition, the habits of society, written law, and the common sentiments of people have recognized as forming the basis of the institutions of the country.”[20] They are fundamental principles “which have at all times been enjoyed by citizens of the several States” and include “protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety. . . .”[21] Notably, however, they did not include the right to vote.
In a later case, the Court observed that “[t]he Constitution does not define the privileges and immunities of citizens. The [fourteenth] amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had.[22] It added, “If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race, &c.? Nothing is more evident than that the greater must include the less, and if all were already protected why go through with the form of amending the Constitution to protect a part?”[23] The clear implication being voting is a privilege granted by the States to its citizens and they are free to circumscribe that privilege to any degree except where restricted by the Constitution.
The Fifteenth Amendment is the first time the Constitution states that citizens of the United States have a right to vote. It did not define the extent of that right, it only ensured that the right could not be abridged “on account of race, color, or previous condition of servitude.”[24] As late as 1884 the Court continued to assert that “the right [to vote] is not definitely conferred on any person or class of persons by the Constitution alone, because you have to look to the law of the state for the description of the class.”[25] By 1920, the States were prohibited from abridging the right to vote based on sex.[26] By 1964, poll and other taxes were prohibited, and in 1971 age restrictions were prohibited.[27]
Today in America, universal suffrage is axiomatic. It is accepted as a fundamental right of all citizens and is vigorously protected by numerous laws at the federal and state levels. The chant of “one person, one vote” resounds across the fruited plain. Is it heresy to ask if it has been for the better? Mr. Anderson has dared to ask. Perhaps he has reflected on the quality of our current leadership and begun to doubt the sharp and vigorous understanding, the virtue, diligence, order, constancy, and regularity of the voters that put them there.[28] Perhaps in the zeal to expand voting rights, the reciprocal duties have been forgotten.
As I have written previously, rights are corollaries of duties. The right to vote is the reciprocal of responsible citizenship. Citizenship is not merely the right to government largess and munificence. It is the duty to engage responsibly in the governance of our nation. It is the duty to educate oneself on our laws and the operation of the government, to inform oneself of the issues of the day, to hold legislators and bureaucrats accountable, and to give—or withhold—consent. It is the duty to participate in governance—particularly at the local level. It is the duty to attend city council and school board meetings, to run for office, and to support virtuous candidates. It is the duty to remain ever vigilant for malfeasance, corruption, and treachery. If some residents of this nation cannot be bothered to pull themselves away from their social media accounts long enough to bear the burdens of citizenship, then perhaps Mr. Anderson’s notion of a bifurcated society is not so abhorrent after all.
[1]See Johnathan Swift, A Modest Proposal (1729).
[2] Jessie Norman, Edmund Burke: The First Conservative 76 (2013).
[3]Id. at 71.
[4]Id. at 73-74.
[5] Bryce Lyon, A Constitutional and Legal History of Medieval England 554-55 (1960).
[6] Edmund Burke, Appeal from the Old to the New Whigs 446 (ed. J. Dodsley, 1791)
[7]Id. at 448.
[8]Id. at 449.
[9]See Minor v. Happersett, 88 U.S. 162, 172-73 (1874).
[10]Id.
[11] “The house of representatives shall be composed of members chosen every second year by the people of the several states; and the electors in each state shall have the same qualifications requisite for electors of the most numerous branch of the state legislature.” U.S. Constitution, Article 1, § 2.
[12]Ex parte Yarbrough, 110 U.S. 651, 663 (1884).
[13] The Federalist No. 10 (James Madison).
[14]Id.
[15] John Adams, VI Works 402-03 (ed. Charles Francis Adams. 1851).
[16] The Federalist No. 10 (James Madison).
[17]Id.
[18] “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. Constitution, Amend. 14.
[19]Slaughter House Cases, 83 U.S. 36 (1872).
[20]Id. at 55.
[21]Id. at 76.
[22]Minor v. Happersett, 88 U.S. 162 (1874).
[23]Id.
[24] U.S. Constitution, Amend. 15.
[25]Ex parte Yarbrough, 110 U.S. 651, (1884).
[26] U.S. Constitution, Amend. 19.
[27] U.S. Constitution, Amends. 24, 26.
[28]See note 8 and accompanying text.