7.1 Civil Rights and Constitutionalism

Voting as a Civil Right

As discussed in more detail later in the chapter, voting is a civil rights issue in the United States. Throughout its history, the United States has restricted voting access to certain groups, culminating in several historic movements and protests to expand and protect voting rights. The vote is one of the most powerful ways the people can use their voice to effect change and be heard. When a government denies a group the right to vote, it effectively takes away their political voice. The less power the members of a group have to make their voices heard, the more help they will need—if not from the government, then from the political action of other groups. As Boston College professor Kay Lehman Schlozman, Harvard University professor Sidney Verba, and University of California professor Henry E. Brady put it, “Public officials cannot consider voices they do not hear.”²

Though the US Constitution has been amended several times to expand suffrage—the right to vote—by removing barriers based on race (15th Amendment), gender (19th Amendment), and age (26th Amendment), some stakeholders in the United States still seek to prevent certain groups from exercising the right to vote. Their efforts are referred to as voter suppression.

Civil rights issues vary around the world, and the history of voting rights in New Zealand, a Pacific country very different from the United States, for example, contrasts with the history of voting rights in the United States. Traditionally, the New Zealand government has extended more rights to its Indigenous people than it has to people who emigrated later. Indigenous Maori men received the right to vote in New Zealand before the government extended that right to all men over the age of 21 in the country who were British subjects (at the time New Zealand was a British colony), and New Zealand was the first country in the world to grant women the right to vote.³ The United States did not grant women the right to vote until almost 30 years later. Despite the ratification of several amendments to the US Constitution that were intended to guarantee suffrage to more people, Native Americans, for example, continue to be denied the right to vote even today in certain places in the United States because of lack of documentation and identification.⁴

In 1971, the United States lowered the voting age from 21 to 18 (26th Amendment). Some countries, such as Austria and Brazil, have lowered the voting age even further. Following a 2000–2005 trial run, Austrians as young as 16 are now eligible to vote in all local, regional, and national elections.⁵ What these examples tell us is that, like many other civil rights issues, suffrage is not a rigid institution, but one that can change due to internal and external forces. A country’s suffrage laws are an extension, and oftentimes an expression, of that country’s sovereignty; the uniqueness of voting laws and who qualifies to vote contribute to the fabric that makes up a political culture, a concept that will be considered later in the chapter.

Figure 7.2 Participants in the 1965 Civil Rights March walk from Selma to Montgomery, Alabama, to protest voter suppression and racial segregation. (credit: “Participants, some carrying American flags, marching in the civil rights march from Selma to Montgomery, Alabama in 1965” by Peter Pettus/Library of Congress)

Constitutionalism and Civil Rights

The US Constitution first guaranteed a right to vote for some citizens with the ratification of the 14th Amendment, which declares that any state denying eligible citizens the right to vote will lose representation in Congress. In Chapter 4: Civil Liberties, you read about constitutionalism, which is “the doctrine that governs the legitimacy of government action.”⁶ In other words, constitutionalism reminds us that governments must respect the rule of law and the limits placed on government power.

One way to understand constitutionalism is to think of it as the role a country’s written constitution plays in maintaining the rule of law and a country’s political culture. India’s constitution⁷ references freedom from caste-based discrimination and the freedom to preserve and speak languages, specific rights that may not be applicable in other countries because India has its own specific political culture. Mauritania’s constitution also references language. It declares Arabic the official language but recognizes three other national languages. The Mauritanian constitution also emphasizes universal suffrage and specifically states that “the law favors the equal access of women and of men to the electoral mandate and elective functions.”⁸

The 1776 US Declaration of Independence states that all people have “unalienable rights” that they possess at birth that no government can take away. The unalienable rights to which people are entitled include the Declaration’s most famous phrase: “life, liberty, and the pursuit of happiness.” The Declaration of Independence has served as a model for contemporary independence efforts, and international organizations have incorporated the rights enshrined in the Declaration of Independence into their own formal work to promote these rights, as typified by the United Nations’ Universal Declaration of Human Rights (UDHR).⁹ Since 1948, the Preamble of the Universal Declaration of Human Rights (also discussed in Chapter 15) and 30 of its articles have inspired billions of people globally. Some of the human rights the Universal Declaration recognizes include protections against slavery (Article 4) and forced marriage (Article 16), freedom of movement within one’s own country (Article 13), the right to participate in government, (Article 21), freedom to join a union (Article 23), and the right to hold a nationality (Article 15).

As discussed in Chapter 4, constitutions can include positive rights and/or negative rights. According to the Markkula Center for Applied Ethics, “Negative rights, such as the right to privacy, the right not to be killed, or the right to do what one wants with one’s property, are rights that protect some form of human freedom or liberty . . . positive rights are ‘positive’ in the sense that they claim for each person the positive assistance of others in fulfilling basic constituents of human well-being like health and education.”¹⁰ Negative rights often correspond with civil liberties—what the government cannot restrict—and positive rights correspond with civil rights—what the government must protect. The constitution of the Republic of North Macedonia, for example, prohibits child and forced labor, the death penalty, torture, censorship, and double jeopardy and discrimination based on “sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status.”¹¹ Because they are expressed as prohibitions, these are considered negative rights.

The Comparative Constitutions Project compiles, compares, and analyzes constitutions from around the world. The project’s sample ranges from the constitutions of Brunei and Thailand, which include only two individual and political rights, to those of Portugal, Serbia, and Ecuador, which include 87, 88, and 89 rights, respectively.¹² Similarly, the Cato Institute conducts an annual survey of political rights known as the Human Freedom Index. It describes human freedom as “a social concept that recognizes the dignity of individuals and is defined here as . . . the absence of coercive constraint.” Drawing on data from 162 countries and using a zero to 10 scale, in 2020 the Cato Institute identified New Zealand as having the most rights and protections of freedoms in the world and Syria as having the least.¹³ These rankings reflect global variations in how people conceptualize civil rights, despite the UDHR and other statements about human dignity.

Constitutions play a crucial role in defining which civil rights a country recognizes and claims to protect, but what about enforcement? What if a country’s constitution contains certain protections, but the majority does not implement them? The section that follows discusses the relationship between majority and minority groups and the implications for civil rights. The chapter will conclude with a discussion of the role of government and political institutions in enforcing civil rights.