Magliocca on "Right in Theory, Wrong in Practice": Women's Suffrage and the Reconstruction Amendments

Gerald N. Magliocca, Indiana University School of Law, is publishing "Right In Theory, Wrong In Practice": Women's Suffrage And The Reconstruction Amendments in the Journal of American Constitutional History. Here is the abstract.

This Essay explores the most remarkable constitutional argument ever forgotten. In 1871, Representative William Loughridge of Iowa dissented from a report by the House Judiciary Committee. The Judiciary Committee rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. Representative Loughridge replied with a defense of women’s suffrage that was the first official declaration of constitutional sex equality. The Woodhull Petition and the Loughridge Dissent are a treasure trove that should be added to the constitutional canon. They pioneered the belief that the Fourteenth Amendment gave women equal citizenship and that legal distinctions based on sex can be irrational. They made the first textual and structural arguments for the right to vote. The Loughridge Dissent also defended an interpretive stance that rejected original meaning and tradition in favor of a panoramic construction of the Constitution as "right in theory but wrong in practice." Lastly, recognizing the creative work of the suffragists and their fellow travelers is a vital first step toward filling the between constitutional practice, which cares about women's rights, and constitutional theory, which generally does not. The Woodhull Petition and the Loughridge Dissent also advanced textual claims that challenge modern assumptions. For instance, they said that the Fifteenth Amendment affirmatively recognized a "right of citizens of the United States to vote" instead of merely proscribing a certain kind of voting discrimination. Loughridge relied on the Constitution's Preamble as authority for the proposition that women's suffrage could not be denied, instead of treating the "We the People" paragraph as purely ceremonial. Finally, he argued that the text is sometimes best read descriptively or agnostically rather than prescriptively; an approach which could lead to a fresh of view of constitutional issues such as voting rights for ex-felons and the death penalty.

Download the essay from SSRN at the link.

Douglas on History, Tradition, and Voter Registration

Joshua A. Douglas, University of Kentuky College of Law, is publishing History, Tradition, and Voter Registration in the Wisconsin Law Review. Here is the abstract. H

istory and tradition are dominating the current Supreme Court, which has invoked history and tradition to curtail some rights, such as abortion, while using it to elevate other rights, such the right to bear arms. Might history and tradition also support expanded rights even if doing so will result in a ruling that seems contrary to the majority's preferred ideological outcome? Current disputes over voter registration restrictions will pose that very question. Many states have recently implemented onerous rules on voter registration, especially targeting third-party voter registration organizations. As this Article shows, the Court should strike down these rules under a faithful interpretation of the history and tradition of voter registration. The Article first discusses the ways in which some states have imposed restrictive registration rules and made it harder for organizations to help voters register. States have enacted citizenship requirements on who may register voters, tight delivery deadlines for completed registration forms, speech mandates for third-party organizations, compensation restrictions for individuals engaged in voter registration, and rules on what voters must present to register to vote. The Article then turns to the history of voter registration, drawing upon primary sources such as archival newspaper records to show that there is a rich history of voter registration drives that date to the beginning of voter registration. There are three significant periods of expanded voter registration through third-party organizations, including during the women’s suffrage movement, the Civil Rights movement, and in the 1990s after Congress passed the National Voter Registration Act. Interested parties and organizations have engaged in voter registration activities for almost as long as there have been registration lists. The Article then evaluates how courts should use this history and tradition. Specifically, because history and tradition support robust third-party voter registration activities, the Court should invalidate new voter registration restrictions as violating organizations’ and voters’ rights. If voter registration is considered a deeply rooted aspect of the election process, then so is the practice of third parties conducting voter registration drives and helping others register to vote. History and tradition are now the primary focus of arguments at the Court. To win, litigants must explain why history and tradition support their contentions. On voter registration, history and tradition demonstrate that eligible voters could easily place their names on the voter list and that organizations could assist in those efforts without hindrance. The Court should invoke this history and tradition to strike down restrictions on voter registration.

Download the article from SSRN at the link.

Muller on What's Old Is New Again: The Nineteenth Century Vote Registration Debates and Lessons About Voter Identification Disputes @derektmuller

Derek T. Muller, Pepperdine School of Law; University of Iowa College of Law, has published What's Old is New Again: The Nineteenth Century Vote Registration Debates and Lessons About Voter Identification Disputes at 56 Washburn Law Journal 109 (2017). Here is the abstract.

There is a raging debate over the administration of elections, which is undoubtedly familiar to many. There has been a significant increase in a particular kind of election law pertaining to how states go about administering elections. These laws have largely been promulgated by Republicans and target election fraud — actual or perceived — in an attempt to restore some integrity to the electoral process. Democrats, for the most part, have opposed these laws and often critiqued them as a kind of voter suppression tactic, one that disproportionately burdens racial minorities, the poor, and those who have recently moved into a precinct. Over the years, these positions have hardened into fairly partisan and seemingly intractable positions. This story, of course, is also the story of the voter registration debates in late nineteenth century America. This Article sketches that history and offers some general reasons why voter registration laws moved from controversial to generally-accepted. It then offers some comparisons to current controversies over voter identification laws. It concludes with potential lessons for the future administration of such laws and possible means of resolving seemingly intractable disputes.

Download the article from SSRN at the link.

Faulkner On Voting Rights

Joel Heller has published Faulkner’s Voting Rights Act: The Sound and Fury of Section Five. Here is the abstract.

In its most recent examination of the Voting Rights Act, the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of § 5, the VRA provision that singles out certain jurisdictions with a history of racially discriminatory voting practices for additional regulation, its opinion expressed significant doubt that the measure was still justified. In this tale of progress and redemption, the Court concluded that “things have changed in the South.”
One body of commentary that was not considered in this story was the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same thematic and sociological concerns that animate § 5. Specifically, Faulkner’s novels explore the power of memory in the South and the ongoing influence of the past on present actions and attitudes. In his depiction of the burden of memory, Faulkner suggests a distinct role for § 5 that policymakers and commentators should consider in the debate over its continued necessity. Rather than punishing the sons for the sins of the fathers, the provision can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present.
This Article explores how Faulkner’s novels can contribute to a better understanding of the role § 5 serves in the modern South and thus inform the debate over whether the law remains constitutional. In doing so, it also considers the role literature can play in legal analysis beyond the uses typically identified by the law and literature movement.

Download the paper from SSRN at the link.