by Matt Barr

Avoiding democracy

A point I like to make about the last 35 years of constitution amendment avoidance is: In 1961, the 23rd Amendment was ratified, granting District of Columbia residents the right to vote in presidential elections. If it hadn't been, sometime in the last 35 years or so someone would have gone to federal court to argue that the constitution already guarantees D.C. residents the right to vote in presidential elections, without the necessity of actually amending the constitution. (The same if true of the 25th Amendment's guarantee of the right to vote in federal elections to citizens 18 years old and older.) But in the dark ages of the late 1950s and early 1960s, before Roe v. Wade etc., everyone signed on to the proposition that if the constitution didn't permit something, the constitution had to be amended. How quaint!

Today (via How Appealing, though to avoid the Miami Herald's bothersome registration process I pulled ths story up on Nexis), a Puerto Rican lawyer urges the First Circuit to extraconstitutionally grant Puerto Ricans the right to vote in presidential elections. The arguments?

He said the inability to participate in national elections is a violation of rights afforded to all other U.S. citizens, including residents of the District of Columbia, also without statehood.

Consider the dexterity of this point for a second. The constitution was amended to grant D.C. residents the right to vote. Does that mean the constitution must be amended to grant the right to vote to people who don't have it? No, it means that Puerto Ricans already have the right to vote.

Richard Fallon, a Harvard Law School professor, told judges that by denying island residents the right to vote, the U.S. government was violating customary international laws.

"There can be no doubt that the United States is in violation of these norms," Fallon said, adding that remedies would include a constitutional amendment, making the island a state or presenting those on the island with a "genuine opportunity" to make a definitive decision on their political status.

It wouldn't be a 21st century constitutional issue without appeal to international law! How does that third thing he says give P.R. the right to vote in presidential elections? I can see how the first two -- constitutional amendment, statehood -- would. The "genuine opportunity" seems to be the chance to decide for themselves whether they should be allowed to vote in presidential elections. How is that?

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