ArchivesProfessor Sharon Beckman, Boston College Law School
Presidential candidate George W. Bush told the American people that his federal judicial appointees would be “strict constructionalists,” people like Supreme Court Justice Antonin Scalia who believe federal courts lack authority to protect fundamental rights that are not expressly mentioned in the Constitution. How ironic that he is now asking a federal appellate court to rule that that Florida officials are violating “the right to vote,” a right he describes as “one of the most fundamental of all rights in our democracy.” The interesting thing about the fundamental right to vote invoked by Governor Bush is that it is nowhere to be found in the text of the Constitution. Federal judicial authority to enforce voting equality exists only as a result of liberal construction of the Fourteenth Amendment’s Equal Protection Clause. Governor Bush, it turns out, likes his constitutional rights construed liberally.
Bush’s federal lawsuit cites the 1966 case of Harper v. Virgina State Board of Election, in which the liberal Warren Court declared Virgina’s poll tax unconstitutional. Justice William O. Douglas’s opinion for the Court acknowledged that the right to vote in state elections was not expressly mentioned in the Constitution, but held that the 14th Amendment’s guarantee of Equal Protection of the Laws would be violated by conditioning the exercise of such a “fundamental political right” upon a person’s ability to pay a fee. Justice Hugo Black, famous for his belief that judicial power was limited by the text of the Constitution, wrote in dissent that the Court had no authority “to write into the Constitution its notions of what it thinks is good governmental policy.” Justice John M. Harlan II, who, like Governor Bush, was born into an affluent and politically connected family, concluded that the poll tax reflected a traditional and rational view that “people with some property have a deeper stake in community affairs, and are consequently more responsible, more educated, more knowledgeable, more worthy of confidence, than those without means, and that the community and the Nation would be better managed if the franchise were restricted to such citizens.” Justice Douglas, who was born into abject poverty, responded that “we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights.”
Governor Bush’s federal lawsuit relies on the Warren Court’s liberal activist interpretation of the Equal Protection clause. If elected President, however, Bush says he will appoint Justices like Antonin Scalia, who reject, indeed mock, the Warren Court’s vision of equal access to fundamental rights. Just last year, Justice Scalia joined Justice Clarence Thomas in saying that he was “inclined to overrule” the whole line of Supreme Court decisions reflecting “an equalizing notion of the Equal Protection Clause,” beginning with the 1957 landmark Griffin v. Illinois. Griffin held that a State cannot constitutionally deny a person the right to appeal a criminal conviction simply because of inability to pay for a trial transcript. Justice Black’s plurality opinion invoked both the Equal Protection and Due Process Clauses, reasoning that “there can be no equal justice where the kind of trial a man gets depends upon the amount of money he has.” In the 1999 case, Justices Scalia and Thomas as well as Chief Justice William Rehnquist saw no constitutional problem with a Mississippi court ruling forbidding a mother from appealing the state’s termination of her parental rights to her two minor children solely because she could not afford the record preparation fees.
Justice Scalia exhibited a similar indifference to the plight of the poor in 1988 when he provided the necessary fifth vote for the ruling in Kadrmas v. Dickinson Public Schools that nothing in the Constitution prohibits a state from discriminating against poor children with respect to access to public education. Sarita Kadrmas, like Governor Bush, was the child of an oil man, but her father, who labored in the North Dakota oil fields, struggled to keep his family of five at the poverty level and could not afford to pay what the district charged to transport her 16 miles to the nearest public school. While Justice Scalia and the other members of the majority found the “genuine hardships endured by the Kadrmas family when Sarita was denied access to the bus” constitutionally irrelevant, Justice Thurgood Marshall’s dissent explained that access to public education is just as important to the poor as access to the courts or to the polls. Justice Marshall believed that the Fourteenth Amendment requires the Court to look skeptically at government actions denying the poor access to the public institutions and processes that allow us to improve our status and better our lives — to pursue the American Dream.
Governor Bush doesn’t have to worry about how to afford the American Dream. His parents could afford to send him to Andover and Yale, two of the finest (and most expensive) private schools in the country. Nor does access to judicial process appear to elude him. His lawsuit identifies four law firms — two based in Florida and two in Washington, D.C. — as working on his case. No doubt Governor Bush also had the financial means to obtain competent legal representation when he was charged with a crime, making him much more fortunate than Calvin Burdine, the Texas death row inmate whose court-appointed lawyer slept during his trial. Still, understanding how he has benefited in life from education and access to justice, why would he appoint federal judges who would deny those same advantages to others for no reason other than the fact that they were not born into wealth?
Even if Governor Bush does not believe in equal access to education and judicial processes, his lawsuit asserts his belief in a fundamental (though not textual) constitutional right to an election in which all Florida citizens are given an equal right to vote. That being the case, perhaps he should consider the plight of the hundreds of thousands of voters Florida has disenfranchised because they were convicted of crimes. A criminal record is a better ground for disenfranchisement than poverty: A person convicted of a crime has presumably done something that society considers dangerous and/or morally wrong. Still, if a criminal conviction doesn’t disqualify a person from becoming the President of the United States, why should it stand in the way of the fundamental constitutional right to vote?
We all learn from experience. Perhaps Governor Bush’s recent adventures in federal court will cause him to reconsider whether he really wants to appoint strict constructionalists like Justice Scalia to the federal courts. On the other hand, if he somehow emerges from this experience still believing in liberal construction for the privileged and strict construction for the poor, then the rest of us will have learned a lesson about the true meaning of compassionate conservatism.
November 17, 2000
Sharon Beckman is an Assistant Professor of Law at Boston College Law School.
