So Soviet Union-honeymooning, Fidel Castro-kowtowing socialist Sen. Bernie Sanders (I-VT) wants to let the Boston Marathon jihadist vote from his high-security prison while he awaits his already-overdue death sentence. Specifically, as The Daily Wire’s Ryan Saavedra reported, Sanders said: “I think the right to vote is inherent to our democracy. Yes, even for terrible people, because once you start chipping away…you’re running down a slippery slope…I believe even if they are in jail, they’re paying the price to society, that should not take away their inherent American right to participate in our democracy.”
But there is one major problem for the near-octogenarian Vermont loonbag: The franchise, in our system of governance, is not properly construed as a “right” that is “inherent to our democracy.” Rather, going back to the Founding generation and continuing through the Reconstruction Amendments well into the 20th century, the franchise in our constitutional order has long been generally understood as a privilege for which the states have something closely akin to plenary power to regulate — and, indeed, limit — as they see fit.
The extensive congressional debates over the ratification of the Fourteenth Amendment, held in the tumultuous years immediately following Lee’s surrender to Grant at Appomattox, are telling. Congressman John Bingham (R-OH), the single principal draftsman of the Fourteenth Amendment, declared at the time that “we all agree, and the great body of the people of this country agree, and the committee thus far in reporting measures of reconstruction agree, that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” In the Senate, the influential Sen. Jacob Howard (R-MI) was perhaps even more explicit: “the right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a despotism.”
In Sanders’ limited defense, James Madison does refer, in The Federalist No. 52, to “the right of suffrage” as a “fundamental article of republican government.” But this is lofty natural rights language delinked from the very Constitution that The Federalist Papers sought to help ratify. Indeed, in the very same paragraph, Madison expressly concedes that the Constitutional Convention of 1787 left the general regulation of the franchise to the states as a compromise measure: “To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option.” It is this compromise by the men of the Constitutional Convention — to generally leave the regulation of the franchise to the states — that Bingham and Howard referenced decades later during the Fourteenth Amendment ratification debate. Madison’s possible personal lamentations to the contrary do not countermand constitutional text or rudimentary constitutional structure.
Finally, consider how emphatic the leading originalist Supreme Court justice of the past half-century (and likely of all-time), Clarence Thomas, has been on this issue. “States have the exclusive authority to set voter qualifications and to determine whether those qualifications are satisfied,” Thomas wrote in his 2013 Arizona v. Inter Tribal Council of Ariz., Inc. dissent. “States…retain the authority to decide the qualifications to vote in federal elections, limited only by the requirement that they not establish special requirements for congressional elections that do not apply in elections for the state legislature,” he continued (internal citations omitted). Furthermore, in his 2018 Husted v. Philip Randolph Institute concurrence, Thomas emphasized that the states have the “constitutional authority to set and enforce voter qualifications.” Finally, in his 2016 Evenwel v. Abbott concurrence, Thomas noted that Congress has proper regulatory authority “only over the when, where, and how of holding congressional elections, not over the question of who can vote” (internal citations omitted).
In short, then, Bernie Sanders is wrong here — as he is in so many other areas of life.