The New Property Qualifications and Your Right to Vote

In 1787, when the Constitution was drafted many states had property qualifications. There were property qualifications to vote (for state positions) and property qualifications to hold elected (state) positions. The 1787 Constitution departed from that model—qualifications for elected federal positions relied upon age, inhabitancy, and citizenship. Generally, the rest would be left up to the voters. By stripping property out of the system, government and people—both administration and elections—were freed to debate ideas and ideologies, rather than class loyalties (or mere personal loyalties to factional leaders). Ending property qualifications paved the way to egalitarian national citizenship and to rational Popperian democracy.

Of course, people in office still had property and property-like interests. A doctor-congressman could continue to practice medicine (and charge patients). A lawyer-vice president could continue to teach law (for pay) or author books on law and politics (for sale). If some goodwill attached to the doctor’s or the lawyer’s practice because he was a public celebrity—that was a matter for the voters. It does not stop there: we allow felons (even if in prison), the indigent (even while on welfare), and the bankrupt (contrary to British tradition!) to run for and hold public office. Who would say that a person on food stamps is legally or constitutionally prohibited from running for and being President? It is a matter for the voters—it is not a forbidden emolument. 

We used to think that a wide open competition for public positions was a public good and one of the great achievements of 1787. We used to trust voters. “But now all is changed.” We have a newly invented set of norms—which came into existence to stop Trump. We have a new property qualification. It is not in the Constitution or in any statute. No one—not one voter and not one elected federal official—has had a chance to vote on it. It was invented in 2016. Candidates and officeholders are now not allowed to own illiquid investments, e.g., land, buildings, and hotels—particularly in foreign countries. And if you do own them, you cannot deal in them just the same way you have always dealt in them—i.e., charging customers for services, and petitioning the government for regulatory and tax relief. This new norm is not grounded in any ideal that all property and contracts involving those who hold elected positions cause conflicts. We know that is not the new norm because presidents and other elected federal officials have, continue, and will continue to write and sell books to all comers—foreign government libraries included. In short, the sort of property (e.g., liquid stock and bond investment and retirement funds) held by our elites—in government, in academia, and in journalism—their property and their dealings in such property will remain constitutionally sanctified, and the people who own such property will continue to enjoy all the protections the law offers. It is just some property—the sort held by people not pleasing to the elites—is now seen as disabling in regard to holding elected federal positions. What kind of property?: Trump’s property. And if that takes away a meaningful right to vote from millions of Americans—that is A-OK with the inventors of the new norm. 

To put it another way, the creation of property qualifications, particularly ad hoc and post hoc property qualifications, is a means by which the powerful manipulate democratic results and nullify your vote and elections. Today, it might not be your candidate, but tomorrow . . . . 

One day—in the not too distant future—I expect people will look back calmly on all that has transpired. The inventors of the new norm—including many who know the sad, sorry history of property qualifications—will compare favourably to Bull Connor—but not by much.

Seth

Seth Barrett Tillman, The New Property Qualifications and Your Right to Vote, New Reform Club (Jan. 15, 2019, 2:53 AM), <https://reformclub.blogspot.com/2019/01/the-new-property-qualifications-and.html>.

FYI: I have participated as an amicus in the three Emoluments Clauses cases against the President. They are: CREW v. Trump; Blumenthal v. Trump; and, DC & MD v. Trump. See Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses Cases, New Reform Club (Feb. 28, 2018, 8:59 AM), <https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html>. 

PS: Seth Barrett Tillman, A Letter to Professor John McWhorter, New Reform Club (Jan. 13, 2019, 8:29 AM), <http://reformclub.blogspot.com/2019/01/a-letter-to-professor-john-mcwhorter.html>.

PS: Seth Barrett Tillman, A Letter to George F. Will, New Reform Club (Jan. 13, 2019, 10:27 AM), <https://reformclub.blogspot.com/2019/01/a-letter-to-george-f-will.html>. 

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