American Constitutionalism in Historical Perspective (packet)

Voting Rights: concerned with the just distribution of power. Two types of cases:

1. 
   Qualification: poll taxes, own property, must be party member in last election, candidates denied equal access to the ballot. These are unconstitutional burdens on the fundamental right to vote
   

1. 
   Harper v. VA State Bd. of Elections: strikes down a $1.50 poll tax b/c everyone should have the rt to vote and qualification based on invidious discrimin. Equality in voting rts is instrumental to secure human rts and poll tax d/n help democracy.
   
   1. 
      Dissent:
      
      1. 
         Harlan Originalist: majority is making a historical attack. Worried about saying voting rts are basic rt b/c at the founding there were universal property reqs. Needed property to be indep of pol corruption and to be indep voter, poll tax promotes civic responsibility.
         
      2. 
         Black thinks this decision is natural law and making up a fundamental rt.
         
   2. 
      But since founding have momentous changes in voting rts. Poll tax has racist history so majority of ct is skeptical of orginalist view of voting rts.
      
      1. 
         XIV Amend: rests on protection of discrete minorities, allows the ct to ensure that this command is obeyed. (Ely fair rep imperative). Stepping away from history of privileging property rts over human rights.
         
      2. 
         XV Amend: mandates no racial discrim in voting, further undercuts the close linkage between property and voting rts.
         
      3. 
         XIX Amend: women get the vote though most of them d/n own property.
         
      4. 
         XXIV Amend: removed poll tax for federal elections.
         
      5. 
         XXVI Amend: 18 year olds get the right to vote.
         
2. 
   Kramer v. Union Free School District No. 15 (1969) p. 841 Property req (real property) to be able to vote is struck down as unconstitutional under strict scrutiny. Addresses democratic objection to judicial review. Outside area of human rts, judiciary s/n act b/c can be resolved democratically. But ct now addresses args that were deemed as political b/c sometimes you c/n trust democracy to give you fair rep. So ct’s work is legit b/c it renders democracy more fairly rep in way that democracy c/n. Must be anti-originalist when it threatens fair rep. Dissent: this decision is not following historical precedent. Originalist view.
   
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