This week’s post is by our own Professor of Law & Director at the Rural Justice Initiative Pro Bono Program Faculty Supervisor – Jordan Gross. She has won many awards – among them, a Fulbright U.S. Scholar Program Award, Margery Hunter Brown Faculty Merit Award, Robert and Pauline Poore Law Faculty Service Award, James C. Garlington Teaching Award, and a Native American Law Students Association Excellence in Teaching Award. She earned B.A. degrees in Political Science and English Literature from the University of Washington in 1989. She earned her J.D. degree, cum laude, from Howard University School of Law in 1993, where she was a member of the law review. But many know her as their teacher in Criminal Procedure–Adjudicative, Criminal Justice in Indian Country, Criminal Justice Reform Interdisciplinary Graduate Seminar, White Collar Crime, Federal Courts, or Professional Responsibility. She also supervises the Criminal Defense and Civil Rights Clinics.
We are winding down from an historic national election. (Or at least most of us are – Georgia still needs to hold an election on January 5, 2021 for its two U.S. Senate seats.) It was historic because we held a national election in the midst of a worldwide pandemic that generated the largest number of votes in U.S. history, and the largest voter turnout rate in the U.S. in over a century. We can be rightly proud about conducting the most secure election in U.S. history, especially given the challenging circumstances. And we can be equally grateful to local poll workers who logged in long hours under difficult conditions to count our votes. This accomplishment also presents an opportunity to reflect on the history of voting in the U.S., and to think about the U.S.’s overall standing in the Democracy Hall of Fame.
With apologies to fellow poly sci nerds (yes, the U.S. is not technically a democracy, but a republic), this post uses the term “democracy” in its broadest sense. That is, a system of government in which the power to govern is vested in the people and exercised, either directly or indirectly, through regularly-held free elections.
So, who is the world’s oldest democracy under this broad definition? As it turns out, this is a hotly-contested point. As with many things, what seems like an objective historical fact quickly becomes complex when its underlying assumptions are examined. This post does not purport to settle the “World’s Oldest Democracy” debate, just offer some things to consider when we think about where the U.S fits into all of it.
The reason no one agrees who came first is because the answer depends on what metrics you use. If the question is which is the oldest existing nation with a constitutional government where people elect their own representatives then the U.S., which came into existence in 1788, appears to be the winner. To be fair, or at least accurate, the U.S. cannot claim to have maintained continuous or regular democratic national elections since its founding. The Civil War, which lasted 1861-1865, broke that streak. During the war years, of course, two governments claimed sovereignty over part of the nation. One outcome was that voters in the eleven states of the Confederacy did not participate in the national election of 1864.
What if we ask which is the oldest existing nation with a continuous participatory democracy? On that score, the Iroquois Confederacy, which traces its consensus-based government back to at least 1142, wins handily.
What if we say you can’t claim the mantle of a true democracy absent universal adult suffrage? That complicates matters significantly, particularly for the U.S. The U.S. Constitution initially left all aspects of voting, including determining who was eligible to vote, to the States. The result? After the Founding, states generally limited the vote to white male property owners. That obviously left out a lot of people and limited the vote to the affluent. Property requirements for voting were mostly eliminated in the U.S. by 1860. But to vote, you still had to be a guy, and white.
The Fourteenth Amendment, ratified in 1868, conferred U.S. citizenship on formerly enslaved male Africans in U.S. But it didn’t guarantee a right to vote. Rather, it penalized States who denied the right to vote to any male adult citizen in a national election. It took the Fifteenth Amendment, ratified in 1870, to create universal male suffrage in national elections. Even then, the right to vote in national elections was limited to adult males.
While it looked good on paper, the Fifteenth Amendment didn’t actually secure universal suffrage for formerly enslaved male citizens. That is because many states (remember how the Constitution gave them primary responsibility for running national elections?) figured out a lot of other ways to keep Black men from voting. This included poll taxes, literacy tests, intimidation, and “grandfather” provisions. “Grandfather” provisions restricted the vote to men whose grandfathers had voted in previous elections. This obviously excluded anyone whose grandfather couldn’t vote to begin with . . . like the descendants of formerly enslaved Africans or immigrants. The last of the state grandfather voting laws wasn’t struck down as unconstitutional until 1915 in Guinn v. U.S.
All good for grandsons in the U.S.. But what about her granddaughters? Women in the U.S. were not guaranteed universal suffrage in national elections until the Nineteenth Amendment was ratified in 1920.
What about poor people? Poll taxes, which disenfranchised poor people of all races and both genders, weren’t abolished until 1964 when the Twenty-fourth Amendment was enacted.
What about indigenous peoples, who were practicing democracy long before anyone else arrived on the continent? The Fourteenth Amendment specifically excluded “Indians not taxed” from the “whole number of persons in each State” in apportioning national representatives. And the Fifteenth Amendment was understood not to extend to indigenous persons who were citizens of their respective Tribal nations because they were not considered U.S. citizens. It wasn’t until Congress passed the Snyder Act of 1924 that indigenous persons became U.S. citizens. Actually, it is more accurate to say that indigenous persons were forced to become U.S. citizens since no one bothered to ask whether Tribal citizens also wanted to become U.S. citizens.
One would have thought the Snyder Act would have made the Fifteenth Amendment voting rights retroactively applicable to indigenous persons, making them eligible to vote in national elections. But it wasn’t until over forty years after the Act was passed that indigenous U.S. citizens were extended suffrage throughout the U.S.. And, although technically enfranchised, indigenous communities continue to experience systematic disentrancement.
So, back to the original point. If the metric of a true democracy is universal adult suffrage, then, at the earliest, the U.S. taps in around the late 1940s. Some might even argue we didn’t join the club until Congress passed the Voting Rights act of 1965. Still other might say we still aren’t there because of the extraordinarily large number of inmates, probationers and paroles in the U.S. who are routinely excluded from voting. (And who, by the way, happen to be mostly non-white and poor.)
And that’s just the right to vote. What if we throw in the right to be a candidate and hold elected office? Or the right to participate meaningful? Then the title might have to go to Finland, which became the first country to abolish race and gender requirements for both voting and for serving in government in 1906. And, here’s the crazy thing, enfranchising everyone appears to eventually translate into a more inclusive government, not just a more inclusive electorate. Finland, the first nation to embrace universal adult suffrage, made history recently when it seated an all-female coalition government led by a female prime minister.
The U.S. is among the oldest modern democracies, to be sure. But it is only the oldest if we don’t factor in some other things that are nice to have in a democracy – like universal adult suffrage. So, is the U.S. the World’s Oldest Democracy? Law students, you already know the correct answer to that kind of question. A resounding “it depends!”
Professor Gross’ SSRN Author Page can be found at https://ssrn.com/author=1741042
Criminal Injustice System 