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UNENUMERATED DEMOCRACY: LESSONS FROM THE RIGHT TO VOTE
Jane S. SchacteW
I would (^) venture to guess that, if most constitutional law types were asked to free associate the first case they think of when hearing the term (^) unenumerated rights, Roe or Lochner would be blurted out the most frequently. Or maybe Griswold. But (^) probably not cases like Reynolds v. Sims' or Harper v. Virginia Board of Elections, which recognized an equal right to vote in the absence (^) of explicit constitutional language about voting. Although (^) Reynolds and Harper were controversial deci- sions in their own time and still occasionally kick up a little dust, they have not been nearly as hotly disputed or as publicly (^) controversial as, say, the modern privacy cases on (^) procreative autonomy. In this Essay, I suggest that straying (^) from more familiar terrain and (^) examining the right to vote through the lens of the unenumer- ated-rights debate can generate some (^) valuable insights about that de- bate. In particular, I stress two points: (^) First, looking at the right to vote from this vantage point (^) suggests the sharp limitations of enu- meration as a guiding concept in constitutional law. Enumeration (^) as a norm is plagued by significant uncertainties, including what is (^) ar- guably the crucial question: What counts as enumeration? (^) That is, just how specific does textual enumeration (^) need to be to satisfy the requirement? (^) I will suggest that "enumerationism" itself cannot an- swer this key question, and that it therefore does not-and cannot- do the conceptual heavy lifting (^) on its own. In fact, the interpreter must rely on (^) values extrinsic to enumeration itself in order to imple- ment and give meaning to the enumeration norm. And the selection of the relevant extrinsic values will-no surprise-end (^) up giving the interpreter the very kind of discretion that enumeration itself (^) aspires to cut off. The second point I (^) will explore relates to the normative justifica- tion for an (^) enumeration requirement. Restricting constitutional rights to those with a textual basis is conventionally defended (^) as pro- moting democracy by leaving more (^) questions to the political process.
Professor of Law, Stanford Law School. Thanks to Pam Karlan and Kathleen Sullivan (^) for helpful comments on an early draft and to Meredith Nikkel for excellent research assistance. (^377) U.S. (^533) (1964). (^383) U.S. (^663) (1966).
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Democratic ideals are thus likely to^ be^ among^ the^ extrinsic^ values^ that shape the working contours of enumeration. But democracy^ turns out to be a problematic justification for enumerationism.^ It^ is^ para- doxical, I will argue, to invoke democracy to^ object^ to^ a^ right that, like the right to vote, is claimed to be precisely necessary^ for democ- racy itself. I will argue, moreover, that just^ as^ the^ meaning of^ enu- meration is contestable, so is the meaning of democracy^ itself.^ All^ of this suggests, in turn, that there is considerable give^ on^ both^ sides^ of the familiar, if crude, equation: enumeration = democracy.
I. THE^ EVOLUTION^ OF^ AN^ EQUAL PROTECTION^ BASED^ RIGHT^ TO^ VOTE:
FROM HAPPERSETTTO HARPER
A. Constitutional Text
The constitutional text on voting is sparse,^ but^ is^ practically^ boun- tiful in the contemporary^ Constitution^ as^ compared^ to^ the^ original document. The original^ Constitution^ provided no^ explicit^ right^ to vote in state elections. The^ Constitution^ said^ more,^ but^ still^ relatively little, about federal elections. Under Article I, Section 3, the Senate was originally to be^ chosen^ by^ state^ legislatures,^ not^ voters,^ so^ there was clearly no voting right^ implicated^ there.^3 Article^ II,^ Section^ 1, similarly affords^ no^ basis^ for^ finding^ a^ right^ to^ vote^ for the^ president because it provides for the^ Electoral^ College^ and^ for^ each^ state^ legis- lature to determine how that state's^ electors^ are selected.^4 That leaves the House of Representatives, which, under Article I, Section 2, is to be "composed of Members chosen every^ second^ Year^ by^ the People of the several States." 5 Language requiring representatives to be "chosen... by the People" contemplates a^ vote,^ and^ so^ might^ be seen as conferring an implied right to vote,^ but^ is^ notably^ silent^ both on who is to be included in^ the^ "People"^ and on^ how^ elections^ are otherwise to be run. On this point, the Section says only that the qualifications for "the Electors" of United States House members are to be the same as those for the "Electors of the^ most^ numerous Branch of the State Legislature. 6 The text of Article I thus crucially relies on^ state^ law^ to^ determine^ who^ is^ permitted^ to vote^ in^ House elections. Finally, Article I, Section 4 states^ that^ state^ legislatures^ shall
3 U.S. (^) CONST. art. I, § 3, cl. (^1) ("The Senate of the United (^) States shall be composed (^) of two Senators from each State, chosen by the Legislature thereof...^ ."),^ amended^ by^ U.S.^ CONST. amend. XVII, § 1. 4 Id. art. (^) II, § 1, cl. 2 ("Each State shall (^) appoint, in such Manner (^) as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress... "). (^5) Id. art. (^) I, § 2, (^) cl. 1. 6 Id.
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violated the Fourteenth Amendment by^ denying^ the^ vote^ to^ women, reasoning that women were citizens, but^ citizenship did^ not^ necessar- ily include suffrage. 2 The opinion also emphasized^ that the^ "United States has no voters in the States of its own creation" because^ voter qualifications, even for federal elections, depend entirely^ on^ state law."^3 This language was repeated and endorsed in^ cases^ such^ as United States v. Cruikshank," a case in which race-based discrimination in voting was alleged, and Pope v. Williams, where the Court^ said^ that " [t] he privilege to vote in any State is not given by the Federal^ Consti- tution, or^ by^ any^ of^ its^ amendments.'^
5
But the story is, of course, not nearly so simple. In^ fact,^ the Court soon strayed from Happersett's dual notions that there is^ no^ constitu- tionally protected voting right and that states alone create federal voters (and, implicitly, voting structures). Over time, the Court recast voting rights as having a significant federal dimension. Early deci- sions establishing the parameters of congressional power to regulate voting helped to set the Supreme Court on this path. 16 The march toward conceptualizing voting as protected by the Federal Constitu- tion was not unbroken, for the language in late nineteenth-century decisions equivocated. But the march continued nevertheless, cul- minating in the opinion in United States^ v.^ Classic,^ which^ decisively pronounced the right to vote to be "established and guaranteed by the Constitution." 8 It remained for the Supreme Court's later decisions in Reynolds v. Sims 9 in 1964 and Harper v. Virginia Board of Elections^20 in 1966 to be- gin to give real content and contours to^ the^ right^ to^ vote.^ Reynolds
12 Id. at (^) 165, 174-75 (finding that, (^) while "[t]here is no doubt (^) that women may be citizens," suffrage was not an absolute right granted to all citizens). 13 Id. (^) at 170. (^14) 92 U.S. 542, 555 (1876) (^) ("In Minor v. Happersett, we (^) decided that the Constitution (^) of the United States has not conferred the right of suffrage upon any one, and that the United States have no voters of their own creation in the States." (citation omitted)). (^15193) U.S. 621, (^632) (1904). 16 See, (^) e.g., Ex parteYarbrough, (^110) U.S. 651, 664 (1884) (recognizing (^) that the Constitution adopts state-level qualifications for voters, but stressing this did not indicate that the "right to vote for a member of Congress was not fundamentally based upon the Constitution," especially in light of the Fifteenth Amendment, which reflects that the right to vote was of "supreme im- portance to the national government"); Ex parte Siebold, 100 U.S. 371, 383-84 (1880) (discuss- ing how Article I, Section 4 of the U.S. Constitution allows cooperation between Congress and the states in making regulations covering elections, but stating the "power of Congress over the subject is paramount" because it may "make or alter such regulations" (internal quotation marks omitted)). (^17) See, e.g., McPherson v. Blacker, (^146) U.S. 1, 37-38 (1892) (^) (according states broad power with respect to the method of selecting presidential electors and characterizing the^ Fifteenth Amendment in more limited terms). Is (^313) U.S. 299, (^) 314-15 (^) (1941). 19 377 U.S. 533 (1964). 20 383 U.S. 663 (1966).
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built upon three earlier cases. The first was Baker v. Carr, which re- nounced the rule that malapportionment claims were nonjusticiable political questions. 2 The next was Gray (^) v. Sanders, where the Court rejected a "county unit" system that aggregated votes on a per-county basis. 2 That system diluted the (^) power of populous urban counties and enhanced the power of their more sparsely populated (^) rural counterparts. Invoking the Equal Protection Clause, the Court said in Gray that "all who participate in the election are to (^) have an equal vote."^2 Notably, however, Justice Douglas's opinion in Gray (^) did not restrict itself to equal protection. Perhaps foreshadowing the pen- umbral approach that he would soon famously advance (^) in Griswold v. Connecticut,1^4 Douglas instead opted for something that, if properly called (^) enumeration at all, was more like panenumeration: "[t]he conception (^) of political equality from the Declaration of Independ- ence, to Lincoln's (^) Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments (^) can mean only one thing-one person, one vote."2 5^ Finally, in Wesberry (^) v. Sanders, the Court struck down malapportioned congressional districts (^) and sounded a similar theme about (^) equality.2 6^ This time, however, the Court read into the text of Article I, Section 2, a strong-if (^) textually questionable-equality principle.^27 Reynolds followed closely on the heels of these three (^) cases and im- posed a one-person-one-vote requirement on (^) state elections through the (^) Equal Protection Clause. In doing so, the Court used robust rhetoric about (^) the right to vote, casting it as central based on its abil- ity to protect other rights: A predominant consideration in determining whether a State's legislative apportionment scheme constitutes an invidious discrimination violative of rights asserted under the Equal Protection Clause (^) is that the rights al- legedly impaired are individual and (^) personal in nature.... Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic so- ciety. Especially (^) since the right to exercise the franchise in a free and un- impaired manner is preservative (^) of other basic civil and political rights, any alleged infringement (^) of the right of citizens to vote must be carefully and meticulously scrutinized.2 s
2 369 U.S. 186, (^231) (1962). 372 U.S. (^) 368, (^380) (1963). 23 Id. at 379. 24 381 U.S. 479, 484 (1965) (asserting (^) that "specific guarantees (^) in the Bill of (^) Rights have pe- numbras, formed (^) by emanations from those guarantees that help give them life and sub- stance"). (^25) Gray, (^) 372 U.S. (^) at (^) 381. (^26 376) U.S. 1, (^) 7-8 (1964). 27 Article I, (^) Section 2, Clause 3 refers (^) to apportionment (^) "among the several States," (^) not within individual states. (^) See Wesbeny, 376 U.S. at 25-45 (Harlan,J., dissenting). 28 Reynolds (^) v. Sims, (^377) U.S. 533, 561-62 (^) (1964).
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guished the decision in Lassiter v. Northhampton County Board of Elec- tions, decided seven years earlier, which had upheld the use of literacy tests in North Carolina.^3 5 The opinion argued (^) that literacy had some reasonable (^) relation to the right to vote, but wealth did not.^36 The Court in Harper thus characterized the case as one of "invidious dis- crimination." T Had enumeration been its central preoccupation, the Harper Court might have pursued a different doctrinal path. The year (^) be- fore Harper was decided, (^) the Supreme Court had decided Harman v. Forssenius, a case that struck down an attempt by Virginia to evade (^) the Twenty-fourth Amendment's ban on poll taxes (^) in federal elections. 38 Once it became clear that the Twenty-fourth Amendment would pass, Virginia abolished the poll tax as an absolute prerequisite for federal elections, while maintaining (^) the tax for state elections. In response to the new federal amendment, (^) Virginia enacted a law requiring vot- ers in federal contests either to pay the poll (^) tax or to file proof of resi- dence six months before the election. °^ The Court found the law to be a sophisticated means of evasion (^) and struck it down as violative of the Twenty-fourth Amendment.^4 ' In the course of its analysis, how- ever, the Court alluded to what might qualify as the mother of all smoking guns-a statement from the 1902 Virginia Constitutional Convention, at which the state first wrote a poll tax into its constitu- tion: Discrimination! Why, that is precisely what we propose; that, exactly, is what this Convention was elected for-to discriminate to the very extrem- ity of permissible action under the limitations of the Federal Constitu- tion, with (^) a view to the elimination of every negro voter who can be got- ten rid of, legally, without materially (^) impairing the numerical strength of the white (^) electorate.^42 Recall that when Virginia passed the law struck down in Harman, it retained the poll tax for state elections that was subsequently struck
35 360 U.S. 45, 53-54 (^) (1959). For subsequent (^) statutory elimination (^) of literacy (^) tests, see Vot- ing Rights Act (^) of 1965, Pub. L. No. 89-110, § 4, 79 Stat. 437, 438 (codified as amended at 42 U.S.C. § 1973b (2000)). 36 Lassiter, 360 U.S. (^) at 53-54. 37 Harper, 383 U.S. at (^668) (internal quotation (^) marks omitted). 38 380 U.S. 528, (^544) (1965). 1 am indebted (^) to Pam Karlan (^) for a conversation about (^) this case. :9 Id. at 531. 0 Id. (^) at (^) 532. (^41) Id. (^) at 544. 42 Id. at (^543) (quoting 2 VIRGINIA (^) CONSTITUTIONAL (^) CONVENTION (PROCEEDINGS (^) AND DEBATES, 1901-1902), at 3076-77 (statement of Rep. Glass)). The opinion went on to assert that "[t]his statement was characteristic of (^) the entire debate on the suffrage issue; the only real controversy was whether the provisions eventually adopted were sufficient to accomplish the disenfranchisement (^) of the Negro." Id. at 543 n.23 (citing 2 VIRGINIA CONSTITUTIONAL CONVENTION (PROCEEDINGS AND DEBATES, 1901-1902), at 2937-3080).
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down in Harper. The availability of this blatant evidence of racial in- tent suggests that the Harper Court could have confidently struck down the Virginia poll tax as straightforward race discrimination un- der either the Fourteenth or the Fifteenth Amendment. (^) The evi- dence seems more than sufficient to satisfy any intent test (^) the Court might have chosen to apply under either of these Amendments. 4s^ It is noteworthy that the Court in Harper declined to take (^) this more "enu- merated," or at least more well-established, path by striking down the poll tax as a form of race-based voting discrimination. One might reasonably read the Court's failure to do so as reflecting (^) an interest in elaborating a more general right of political equality. Near the end of the Harper opinion, Justice Douglas resisted Jus- tice Black's charge, in dissent,4 that the Court was illegitimately writ- ing a political theory into the Constitution. Douglas responded (^) with a gesture toward Justice Holmes's (^) iconic reference to Herbert Spencer (^) and economic theory in the famous Lochner dissent: [T] he Equal Protection (^) Clause is not shackled to the political theory of a particular era. (^) In determining what lines are unconstitutionally dis- criminatory, (^) we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to 41 be the limits of fundamental rights. The language drawing a parallel to due process based fundamen- tal rights is (^) significant, for it frames the voting right in the terms in which it has come to be commonly understood-as part of the fun- damental (^) rights branch of equal protection. In light of language like this and in other cases, 6 it is not surprising that it is commonly (^) said that "the Supreme Court repeatedly (^) has declared that the right to vote is a fundamental right^ protected^ under^ equal^ protection.,^
4
Yet, notwithstanding the broad language (^) of Reynolds and Harper, the Court has also said a number of times that there is no constitu- tional right to vote per se. Indeed, (^) in later cases, the Court has re- peated and, to some extent, refined the understanding (^) of the right to vote as relational, not categorical. In two important footnotes (^) to the majority opinion in San Antonio Independent School District v. Rodriguez, for example, the Court said that (^) "the right to vote, per se, is not a con-
43 The intent (^) requirements imposed (^) on the Fourteenth and (^) Fifteenth Amendments (^) in Wash- ington v. Davis, 426 U.S. 229 (1976), and City of Mobile v. Bolden, 446 U.S. 55 (1980) (plurality opinion), respectively, were imposed after Harper. The Voting Rights (^) Act was subsequently amended (^) to create a remedy for voting discrimination in the absence of proof of intent. See Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131, 134. (^4) Harper v. Va. Bd. of (^) Elections, 383 U.S. 663, (^678) (1966) (Black, (^) J., dissenting). 45 Id. (^) at (^669) (majority (^) opinion). 46 See, e.g., Kramer (^) v. Union Free Sch. Dist., (^395) U.S. 621, 626-27 (^) (1969) ("Statutes (^) granting the franchise to (^) residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantively affect their (^) lives."). ERWIN CHEMERINSKY, CONSTITUTIONAL (^) LAW: PRINCIPLES (^) AND POLICIES (^842) (2d ed. 2002).
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Equal protection rhetoric aside, casting the right as "fundamen- tal" has proven to be a bit of an attractive nuisance for critics of un- enumerated rights because such critics often object to unenumerated and fundamental rights on the same grounds. Robert Bork and Lino Graglia, for example, criticize both unenumerated and fundamental rights as antidemocratic. s^ Their argument is the familiar one that charges judges with finding textually unsupported, bogus "rights" that have the effect of removing from the ordinary political process questions that should be decided by the electorate's chosen represen- tatives. Despite this common critique of unenumerated and funda- mental rights, however, the (^) two categories are distinct in certain ways. Fundamentality is a very old idea in constitutional interpretation, 56 and it goes to importance, while enumeration goes to textual specific- ity. The perceived importance of a right may, of course, be relevant to a court's willingness to find it within constitutional text, or despite the absence of clear constitutional text. But the two adjectives never- theless describe different things. Moreover, not all fundamental rights are unenumerated. (^) The Sixth Amendment, to name one of many examples, is said to create a "fundamental" (^) right to a jury trial in federal criminal cases through its explicit text.^57 And if it is in fact less objectionable to call a (^) right "fundamental" if it is enumerated, then the two categories may mutu- ally shape and modify one another in interesting ways. The broader a view one takes about what constitutes enumeration, the smaller (^) the set of assertedly illegitimate (^) fundamental rights. That takes us to the key question: (^) Is the Reynolds-Harper funda- mental voting (^) right necessarily unenumerated? It is sometimes char- acterized in those terms, 8 but one might well argue the contrary proposition. The voting right might, instead, be seen as enumerated because it falls within the broadly worded (^) terms of, and the textually
state policy choices to promote a set of values responsive (^) to the Justices' vision of political and social ideals."); see alsoJames A. Gardner, Liberty, Community and the Constitutional Structure of Po- litical Influence: A Reconsideration of the Right to Vote, 145 U. PA. L. REv. 893, 972 (1997) (arguing that the Warren Court "could not feasibly rely on the doctrine of substantive due process" after Lochner); Karlan, supra note 52, at 479 (characterizing the Harper decision's use of equal protec- tion as "largely an artifact of the Warren Court's (^) decision to avoid the then-discredited idea of substantive due process"). 5 See (^) ROBERT H. BORK, THE (^) TEMPTING OF AMERICA: (^) THE POLITICAL SEDUCTION OF THE LAW
352-53 (1990) (criticizing interpretive theories that empower courts as impairing "the full right of self-government"); Lino A. Graglia, The Constitution and "FundamentalRights", in THE FRAMERS AND FUNDAMENTAL RIGHTS 86, 97-101 (Robert A. (^) Licht ed., 1991) (arguing that judicial activ- ism is usurping the established authority of majority rule). SeeMarburyv. (^) Madison, (^5) U.S. (1 Cranch) (^) 137, 176 (1803) (^) ("The principles, therefore, (^) so established, are deemed fundamental."). 57 See, e.g., Duncan (^) v. Louisiana, 391 U.S. (^) 145, 157-58 (1968) (^) (deeming the Sixth Amend- mentjury-trial right a "fundamental right"). (^58) See supra (^) note (^) 51.
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unqualified equality norm created by,^ the^ Equal^ Protection^ Clause. This interpretive hypothesis^ would^ proceed^ from^ the^ fact^ that^ the enumerated text of the Clause^ fails^ to^ exclude^ voting^ laws^ from^ the class of laws subject^ to^ the equal^ protection^ requirement. Does this hypothesis reflect a sound understanding^ of^ enumera- tion? Confining our attention to constitutional text for the moment, there are various interpretive counterarguments that^ might^ defeat this suggestion that the Reynolds-Harper right^ should^ be^ seen^ as^ enu- merated. One objection might flow^ from the^ Representation^ Reduc- tion Clause in Section 2 of the Fourteenth Amendment, which^ spe- cifically provides a^ representational^ sanction for^ states^ that^ deny^ the vote to male citizens twenty-one or^ older,^ except^ in^ specified^ circum- stances. 9 Echoing Justice^ Harlan's^ dissent^ in^ Reynolds,^ Raoul Berger inferred that^ Section^2 was^ the^ only^ provision^ in^ the^ Fourteenth Amendment that was intended to deal with voting. 60 Yet, as a textual matter alone, this argument is problematic for several reasons. First, the text of^ Section^2 is^ considerably^ less^ significant^ than^ it^ once^ might have been because subsequent amendments have^ made much^ of^ that Section obsolete by specifically barring race, sex, and^ age^ discrimina- tion in voting.^6 ' Second, Section 2's representational sanction might reasonably be read to address only^ the^ denial^ of^ voting^ to^ males^ over twenty-one, and not other voting-related matters^ like^ reapportion- ment or the poll tax. Indeed, many scholars parsing the^ legislative history of the Fourteenth Amendment have concluded, contrary to
59 The Clause allows states to (^) exclude only those male citizens (^) over twenty-one who par- ticipated in crimes: But when the right to vote at any election for^ the^ choice^ of^ electors^ for^ President^ and Vice-President of the United^ States,^ Representatives^ in^ Congress,^ the^ Executive^ and^ Judi- cial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation^ in^ rebellion,^ or^ other^ crime,^ the basis of representation therein shall be reduced .... U.S. CONST. amend. XIV, §^ 2,^ amended^ by^ U.S.^ CONST.^ amend.^ XXVI,^ §^ 1.^ On the^ Reduction^ of Representation Clause, see Pamela S.^ Karlan,^ Unduly^ Partial:^ The Supreme^ Court^ and^ the^ Fourteenth Amendment in Bush v. Gore, 29 FLA. ST. U. L. REv. 587, 589-93 (2001). 60 See (^) RAOUL BERGER, GOVERNMENT (^) BY JUDICIARY: THE TRANSFORMATION (^) OF THE FOURTEENTH AMENDMENT^ 70-89^ (1977)^ (arguing^ that^ Section^1 did^ not^ provide^ Congress^ with control over voting rights); see also Reynolds v. Sims, 377 U.S. 533, 594 (1964)^ (Harlan,^ J.,^ dis- senting) ("The comprehensive scope of the second section and its particular reference to the state legislatures preclude the suggestion that the first section was intended to have the result reached by the Court today."); cf Richardson v. Ramirez, 418 U.S. 24, 54-55 (1974) (relying^ on Section 2's specific language about criminals^ to reject^ a^ challenge^ to^ felony^ disenfranchisement under Section 1). 61 See (^) U.S. CONST. amend. XV, § 1 (race); id. amend. XIX, (^) cl. 1 (sex); id. amend. XXVI, § 1 (age). For a particularly aggressive form of this argument, see^ Gabriel^ J.^ Chin,^ Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section^2 of^ the Fourteenth Amendment?,^^92 GEO.^ L.J.^ 259,^ 291-92^ (2004).^ One^ need^ not^ necessarily^ go^ as^ far^ as Chin does to say, more modestly, that later amendments have diminished the relevance of Sec- tion 2 to^ voting-rights^ jurisprudence.
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plausibly be read to be the textual source of such a preexisting voting right. Another difficulty with reading the specific voting-rights Amend- ments to preclude the Reynolds-Harper voting right is the contestable assumption that an atomized interpretation of the four voting-rights Amendments is (^) the only, or the best, way to read them. One might, for example, instead read these Amendments collectively, as reflect- ing a strong equality norm in voting, an evolving consensus (^) of sorts.^66 That norm, in turn, (^) might strengthen, rather than undercut, the idea that the Equal Protection Clause should be read to protect equality in voting-related (^) areas as a general matter, as it protects equality in other realms. In thinking (^) about the Equal Protection Clause as a plausible enumeration of the Reynolds-Harper right, it is worth noticing that the Fourteenth (^) Amendment is not the only constitutional provision that might support the results (^) in Reynolds and Harper. Some have sug- gested, for example, that the First Amendment (^) offers an appropriate source of protection (^) against the laws challenged in Reynolds and Harper. These theories cast voting (^) as a form of political expression and voice. Others have suggested that the Guarantee (^) Clause, freed of its judicially imposed justiciability barriers,^68 would have been the bet- ter choice, stressing the dependency of republican government on voting.^69 Indeed, no less a critic of unenumerated rights than Bork argued that the malapportionment challenged in Baker v. Carr should
66 See, e.g., Mark C. Alexander, (^) Money in Political (^) Campaigns and Modern (^) Vote Dilution, (^23) IAW & INEQ. 239, 261-78 (2005) (interpreting constitutional amendments protecting the right to vote as reflecting a deep commitment to political equality); cf Dorf, supra note 51, at 973- (arguing that the voting-rights Amendments combine with the Equal Protection Clause to form a "general equality provision" of the Constitution); Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, (^) 115 HARV. L. REV. 947, 968-76 (2002) (find- ing in the Nineteenth Amendment a strong principle of gender equality linked to the Four- teenth Amendment). 67 See Storer v. Brown, (^415) U.S. 724, 756 (^) (1974) (Brennan,J., (^) dissenting) ("The (^) right to vote derives from the right of association that is at the core of the First Amendment.... ."); Guy- Uriel E. Charles, Racial Identity, Electoral Structures, and the FirstAmendment Right of Association, 91 CAL. L. REV. 1209, 1255-60 (2003) (^) (finding protection for voting in the First Amendment right of association); Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. CHI. L. REV. 20, 52-59 (1975) (arguing that the (^) First Amendment's implicit equality principle pro- tects voting rights as political expression). 68 See Luther (^) v. Borden, 48 U.S. (^) (7 How.) 1, 42 (1849) (^) (deeming the Guarantee (^) Clause of Article IV nonjusticiable); cf Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 149-50 (1912) (calling the division "between judicial authority over justiciable controversies and legislative power as to purely political questions" a "settled distinction"). (^69) See BORK, supra note 55, (^) at 85-86 (maintaining that the Guarantee Clause (^) should be ap- plied because a (^) republican form of government should allow the majority to govern); Cf. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OFJUDICAL REVIEW 118-23 (1980) (arguing that reapportionment decisions (^) are best understood as grounded in a reading of the Constitu- tion that combines the Equal Protection and Guarantee Clauses).
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have been struck down based on the Guarantee Clause because it sys- tematically blocked majority rule.7 ° There are significant conceptual differences among these three constitutional principles-equality, expression, and republican form of government-that might lead theories of voting rights shaped by each to play out differently for various reasons. But they are little dif- ferent from one another in terms of enumeration. That is, none is meaningfully "more enumerated" than the others, and they, in fact, share the same interpretive structure: each reasons from a general constitutional norm to a specific right in a way that is utterly unre- markable in conventional constitutional (^) jurisprudence. All of this suggests that, in the face of a claim that a general con- stitutional provision (^) (like the Equal Protection Clause) supports a specific right (like the equal right to vote), the unenumerated-rights idea cannot autonomously tell us what counts as enumeration. The enumeration norm (^) is, in this important sense, hollow at its core. Put differently, this is a version of a baseline problem: there simply is (^) no interpretive standard of expected specificity to which we can turn. Indeed, if there were any such baseline, it would likely be one of ex- pected generality. The profusion of broad and undetailed constitu- tional provisions makes it difficult to cast textual specificity as the de- fault position. It is, thus, perverse for those devoted to the virtues of writtenness to deny the fair interpretive inference that flows from the character of much of the Constitution's written text.
III. FINDING A METRIC FOR ENUMERATION
This empty-enumeration problem suggests that the metric for specificity must come from outside the enumeration preference itself. Where else might that metric be found? One favorite place that enumeration enthusiasts tend to turn is to theories of originalism. While there is conceptual affinity between enumerationism and originalism, it is important to distinguish between them. Originalism is a contestable evidentiary theory of what the possibly enumerating words mean. And often, of course, original meaning is hotly dis- puted. One can see a good and germane example of this interpretive uncertainty by contrasting Raoul Berger's and William W. Van Al- styne's reckonings of what, if anything, the (^) Fourteenth Amendment's drafters meant in relation to voting rights.^7 '
70 BORK, supra note 55, at 85-86. 71 Compare (^) BERGER, supra note 60, at (^) 70-74 (arguing that the Amendment's (^) legislative history proves intent not to interfere with malapportionment practices), with Van Alstyne, supra note 62, at 37-38 (arguing (^) that the legislative history is ambiguous and cannot support such an in- ference).
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itself? Here we begin to see a central point: the Constitution plays a necessary, if contested, role in constituting democracy. To put it another way, democracy is itself unenumerated. There are many textual provisions that might be understood to articulate democratic norms and values, but they don't all point in the same di- rection or correspond to the same underlying view of democracy. The skeletal outlines of representative democracy are traced in the Constitution, but much about the meaning and requirements of de- mocracy is left to be decided. Broadly worded structural provisions creating majoritarian political institutions coexist with broadly worded norms about such core democratic values as free expression, equality, liberty, and citizenship. Sometimes, applying these different provisions to the same set of facts produces different results. And we must consider, not only these multiple pieces of democracy-shaping constitutional text, but also the structural inferences-inferences that further complicate the concept of enumeration. All of this makes it problematic to rely on simple appeals to something thought self- evidently to be "democracy" as a way to defeat constitutional rights claimed to lack a sufficient basis in text. Consider an example of the plural meanings of^ democracy^ that can be distilled from the Constitution. In^ Romer^ v.^ Evans,^ the^ Su- preme Court struck down a state constitutional initiative passed by Colorado voters that would have eliminated existing laws banning discrimination based on sexual orientation and made ay persons categorically ineligible for the protection of such laws. Different understandings of democracy, each plausibly grounded in the Fed- eral Constitution, might point in very different directions in analyz- ing the constitutionality of the anti-gay rights initiative.7 5^ A majori- tarian democrat would presumably favor allowing the electorate to decide, by voting, whether this kind of discrimination should be barred or allowed. A republican democrat, by contrast, might well object to giving the mechanisms of direct democracy such broad lati- tude to trump and proactively preempt policy decisions made by elected representatives. And an advocate of cultural democracy might object, on different grounds, to the sweeping exclusion of gay persons from what the Romer Court called the domain of "ordinary civic life."^
76
Democracy, in other words, has multiple meanings that are some- times sharply opposed. This^ makes^ it^ hard^ to^ determine^ both^ what the Constitution says about democracy and what it^ means^ to^ use^ de-
74 (^517) U.S. (^) 620, 631-36 (^) (1996). (^75) I explore Romer through the (^) lens of democracy in Jane (^) S. Schacter, Romer v. Evans (^) and
Democracy's Domain, 50 VAND. L. REV. 361 (1997). 76 517 U.S. at 631.
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mocracy as the value shaping the contours of the (^) enumeration norm. One response to these quandaries (^) from an enumeration enthusiast might (^) be to suggest that there is no reason not to let the democratic process (^) decide questions of democracy. Avoid the confusing welter of potential constitutional ideas about democracy, such (^) a person might (^) say, by tightly linking constitutional provisions to their (^) explicit textual meaning, (^) and thereby letting the political process-not the Constitution-define democracy's (^) meaning and its requirements. But if we take Reynolds (^) and Harper as the examples, we can quickly see the difficulty (^) with the let-democracy-decide-what's-democratic solu- tion. It is not hard to see why (^) it is objectionable on democratic grounds to leave significant (^) policy questions about democracy to the vote-diluted polity of Reynolds (^) or to the skewed-against-the-poor polity of Harper. Moreover, as John Hart Ely (^) lucidly saw, it is problematic to expect incumbent elected (^) officials to change a system that benefits them, whether that system might (^) be said to violate constitutionally grounded democratic precepts or not." In short, once we focus (^) closely on the role of democracy, we can see the limits of (^) the enumeration principle, because it becomes clear how little work the idea of enumeration itself actually does (^) in the analysis. Because we need to look beyond the idea (^) of enumeration to draw the essential lines, it begins to look like a weak (^) principle on both the descriptive and normative levels. It is weak as a descriptive matter (^) because it crucially fails to tell us how much specificity is re- quired to constitute (^) enumeration. It is weak as a normative matter because (^) it, in fact, relies on independent normative principles (^) like democracy to (^) make sense of enumeration itself. All of this leaves us needing (^) to work out the paradox of resolving what democracy requires (^) when the very right claimed is said to be necessary for democracy. This (^) presents a new set of line-drawing is- sues. (^) On the one hand, for the structural reasons that are so (^) well il- lustrated by Reynolds and Harper themselves, (^) we can't sustainably pre- fer that democratic institutions resolve all rules of democracy. But we also ought not expect courts to design (^) every aspect of democracy through the vehicle of constitutional interpretation. (^) That would be unworkable, given the vast array of macro- and (^) micro-institutional choices involved in a democratic political process. And it would also be undesirable to cut the populace out of shaping (^) any aspects of de- mocratic institutions.
This dilemma might thus be restated as a question: Which (^) sorts of democratic (^) questions should be resolved at the constitutional level, and which (^) at the political level? We might draw the line where the
7 ELY, (^) supra note (^) 69, at (^) 105-34.
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That means, in turn, that nominally "social" rights that find protec- tion in these Fourteenth Amendment norms-such as rights relating to abortion or sexuality-might be understood as required (^) by, or relevant to, equal democratic citizenship, or to a vision of democracy as "a society of equals."^81 '^ This sort of constitutional reading, once opened up, suggests that the idea of equal citizenship might forge (^) a conceptual link between procreative or sexual rights on the one hand and democracy on the other. That link, in turn, takes us right back to the paradox we saw in relation to the right to vote: it is problem- atic to invoke democracy against a set of unenumerated rights claimed to be inherent in, or a precondition of, democracy itself. This analysis, in other words, deprives the invocation of democracy against (^) unenumerated rights of its self-evident, self-effectuating force, and prompts consideration (^) of what the requirements of democracy are, once properly understood. Irrespective of how that difficult question is answered, the debate is enriched (^) by engaging these issues.
POL. & Civ. RTs. L. REV. 733, 763-67 (2004). See generally DEMOCRACY: A READER (Ricardo Blaug & John Schwarzmantel eds., 2001) (canvassing (^) links between and among equality, autonomy, citizenship and democracy). 81 Joshua (^) Cohen, For a DemocraticSociety, in THE (^) CAMBRIDGE COMPANION (^) TO RAWLS 86, (^) 91- (Samuel (^) Freedman ed., 2003).
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