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Abstract

Fifty years ago, in San Antonio Independent School District v. Rodriguez, the Supreme Court failed to address one of the preeminent civil rights issues of our generation—substandard and inequitable public education—by holding that the federal Constitution does not protect a general right to education. The Court didn’t completely close the door on a narrower argument that the Constitution guarantees “an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Both litigants and scholars have been trying ever since to push that door open, pressing various legal theories propounding that education be recognized as a protected “prerequisite” to established rights of voting, political participation, or citizenship. No such theory has gained more than momentary traction in the courts, unsurprisingly, given the oft-proclaimed axiom that our Constitution secures only negative rights.

This Essay introduces a novel framework for considering this important constitutional question. The Elections Clause of Article I, which has largely been ignored, presents a promising foundational duty from which a “prerequisite” state obligation to provide public education might spring. The Elections Clause commands state governments to design and hold elections to select members of Congress. In this sense, states are already constitutionally obligated to establish the very edifice of representative democracy. Especially since the Court reminded in Rodriguez that the Constitution does not directly protect a right to vote, I believe this state electoral duty—which clearly does contemplate voting—offers a firmer foundation to which a state education duty might anchor than those other sources identified in Rodriguez or since. Moreover, the Elections Clause and related electoral duties debunk naysaying that the Constitution recognizes no affirmative rights or duties requiring state officials to act positively. And finally, focusing on state duties rather than affirmative rights invites creative thinking about judicial enforcement approaches, including some that might better fit federal courts’ remedial comfort zone. Other theoretical, doctrinal, and pragmatic challenges remain to be addressed, but my hope is that highlighting states’ affirmative electoral duty offers a fertile fresh start in this critically important constitutional discourse.

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