Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It

47 Pages Posted: 10 Dec 2019 Last revised: 1 Jul 2020

See all articles by Richard L. Hasen

Richard L. Hasen

University of California, Irvine School of Law

Leah Litman

University of Michigan Law School

Date Written: February 1, 2020

Abstract

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s 100-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the amendment merely prohibits states from enacting laws that prohibit women from voting, once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees.

This piece argues the Nineteenth Amendment does more. A thick understanding of the Nineteenth Amendment’s substantive right is consistent with the Amendment’s text and history, as well as with a synthetic interpretation of the Constitution and its expanding guarantees of voting rights. The thick understanding of the Nineteenth Amendment would allow voting rights plaintiffs to attack restrictive voting laws burdening women, especially when those laws burden young women of color, who are guaranteed nondiscrimination in voting on the basis of age and race as well. And a thick understanding of Congress’s power to enforce the Nineteenth Amendment offers a way to redeem the Amendment from some of its racist origins and entanglement with the sexism that limited the Amendment’s reach, and to reinforce the democratic legitimacy of the Constitution. The thick understanding of Congress’s enforcement power would give Congress the ability to pass laws protecting women from voter discrimination and promoting their political equality. Nonetheless, the current Court is unlikely to embrace a thick understanding of the Nineteenth Amendment.

Keywords: women’s suffrage, voting rights, 19th Amendment, 24th amendment, 14th amendment, 26th Amendment, congressional power, federalism

Suggested Citation

Hasen, Richard L. and Litman, Leah, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It (February 1, 2020). Geo. L.J. 19th Amend. Special Edition, 2020; UC Irvine School of Law Research Paper No. 2019-63; U of Michigan Public Law Research Paper No. 657. Available at SSRN: https://ssrn.com/abstract=3501114

Richard L. Hasen (Contact Author)

University of California, Irvine School of Law ( email )

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Irvine, CA 92697-1000
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HOME PAGE: http://law.uci.edu/faculty/page1_r_hasen.html

Leah Litman

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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