THE SUPREME COURT & AMERICAN POLITICS V.

THE PEOPLE’S REPRESENTATIVES

Lyle Denniston | University of Baltimore Law School & University The original Constitution specified in Article V how that document could be amended:
 Process had to begin with the people’s representatives in Congress drafting
of Maryland System amendments
2020  Followed by ratification (or rejection) by representatives of the people, assembling
in states.
 Bill of Rights (the first 10 amendments, ratified as a group in 1791) does not
mentioned the right to vote explicitly
I. INTRODUCTION TO THE COURSE
 The First Amendment contains two guarantees that are essential to the expression
of the people’s political will:
“EQUAL JUSTIC UNDER LAW”
o The right to “peaceably assemble”
o The right “to petition the Government for a redress of grievances.”
 There are only a few more than 200 seats in the courtroom for the public; people
Since 1791, the people’s representatives have added a total of 17 amendments to the
often hire line sitters to hold a place for them so that they can be assured a place
Constitution, and ten of those have an explicit or implied effect upon the election system
when the hearing begins.
and the right to vote:
THE BUILDING ITSELF
 The court began sitting in New York City in 1970, but it did not have its
 the Twelfth (modifying the mode of presidential election)
own building.
 The court building itself is new in American history, built between 1932  the Fourteenth (guaranteeing “due process” and legal equality, promises
and 1935. which have had a major impact on voting rights; also modifying to a
 Made from Vermont marble; required 1,000 train carloads to supply the degree the allocation of seats in the House of Representatives)
material for the exterior of the building.  the Fifteenth (guaranteeing the right to vote for minorities) 
 the Seventeenth (switching to direct voter election of U.S. Senators, instead
In 1790, when the new government started operating, the first census counted 3,929,214
of election by state legislatures)
Americans.  However, as history knows and this course will remind, that number was
wrong: it did not count all people as full human beings.  Each slave got counted as 3/5 of   the Nineteenth (guaranteeing the right to vote for women) 
a human – a ghastly wound that would fester for 78 years, even causing the Civil War.   the Twentieth (changing the beginning of presidential terms to assure that
The wound began to close only when the Constitution itself was amended (with the the prior president does not stay in office much beyond a new election)
Fourteenth Amendment).   To this day, interpreting the amendments is one of the main  the Twenty-Second (imposing a two-term limit on the election of a
constitutional assignments of the Supreme Court.
president by the people)
 the Twenty-Third (guaranteeing the right of Washington, D.C., voters to
elect members of the Electoral College, which chooses the President and
(Part 1) Vice-President)
II. THE MEANING OF THE CONSITUTION  the Twenty-Fourth (banning any poll tax as a condition for voting in any
DEFINED federal election)
 The United States Constitution has existed since 1787, when America became a  the Twenty-Sixth (guaranteeing the right to vote beginning at age 18).
new nation.

According to Merriam-Webster, the constitution is defined as…

“the basic principles and laws of a nation, state, or social group that
determine the powers and duties of the government and guarantee certain
rights to the people in it.”
As long ago as 1819, America’s most famous Chief Justice, John Marshall, provided a
reminder for all of those who would follow him in settling controversies by relying upon
those basic principles and laws. He wrote: “We must never forget that it is a constitution
we are expounding.” He emphasized that crucial word; he probably meant that, when
applying the words of the basic document, it is essential always to keep in mind that the
text deals with how the Founders chose to constitute a government – in a phrase, to set it
up and make it work.
VI. THE U.S. SUPREME COURT
Article III of the Constitution created the Supreme Court as the head of the Judicial
Branch of the federal government.  The text of Article III does not discuss the authority of
the Supreme Court to interpret the Constitution.
The state governments that existed in America in the pre-Constitution period, and the
delegates to the Philadelphia Convention in 1787, were familiar with the idea that human
beings have natural rights (“endowed by their Creator,” in the words of the Declaration of
Independence) and that no government had the authority to take away those rights.

 The Supreme Court, most of the time, is the institution of government that tells the
nation what the words and phrases of the Constitution mean.
It is important to note at this beginning point, however, that interpreting the Constitution
is not as simple as opening the Constitution to a specific page or provision, holding that
up in one hand, opening up the details of a specific legal dispute in the other hand, then
comparing the two to see if they fit, or they don’t.
III. INTERPRETING THE CONSTITUTION
The people need a government to make the document (The Constitution) into something
more than mere parchment.
In brief, this is what we know about constitutional history and its treatment of the right to
vote:
 The Founders in 1787, choosing words to express foundational ideas,
providing the framework for a government that would establish and protect
that right.
 The people’s representatives, acting as custodians of that framework in the
sense that it lies with them to start the machinery to alter or enlarge the
right to vote.
 And, the Supreme Court, exercising the power to declare what
constitutional mandates mean, making it the overseer of the law governing
voting and elections.
Those who knew English legal history, and there were many in colonial public life who
did, were aware that as early as 1610, the English jurist and legal philosopher Sir Edward
Coke (pronounced “Cook”) had ruled that even his nation’s Parliament – supreme in all
matters legal – could not pass laws that invaded fundamental rights.
In America, that idea translated into a power for the courts to strike down laws that were
unconstitutional if they were found to violate guaranteed rights.  In 1786 and 1787, state
courts in three states had nullified laws that conflicted with those states’ constitutions. 
Thus, even before the newly created U.S. Supreme Court began operating in 1790, the
doctrine of judicial review was quite well established in America.   
The Supreme Court would boldly embrace that doctrine in 1803 in one of the most
famous of all decisions in the Court’s history – Marbury v. Madison.  Chief Justice John
Marshall summed it up this way: “It is emphatically the province and duty of the judicial
department to say what the law is.”  If a law conflicted with the Constitution, the
Constitution had to prevail.  “This is of the very essence of judicial duty,” he wrote.
That decision, enormously controversial in the early days of the new nation and often still
debated, would not have been possible if the “judicial department” were not protected as
an independent branch of the national government.
VII. ss
VIII. D

IV. THE FOUNDERS

The Founders, refers to those who wrote the original Constitution at the Philadelphia
Convention in 1787, and were the original interpreters of the right to vote.
Preamble:
“We the People of the United States…do ordain and establish this Constitution of the
United States of America.”

 Specified the kind of government that would be established by placing upon the
duty to “guarantee in every state in the Union a republican form of government”
(Article IV, Section 4). // Article 1 established this form of government at a
national level and Article 4 extends it to a state level.

The only provisions written by the Founders that would specifically govern the right to
vote are these:
 ART. 1, Sec. 3:
“The House of Representatives shall be composed of Members chosen…by
the People of the several States…” (emphasis added)
 ART 1., Sec. 4:
“The Times, Place and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations….”