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March 12, 2012

"Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments"

The title of this post is the title of this notable new paper by Richard Re and Christopher Re, which is now available via SSRN.  Here is the abstract:

The Reconstruction Amendments are justly celebrated for transforming millions of recent slaves into voting citizens.  Yet this legacy of egalitarian enfranchisement had a flip side. In arguing that voting laws should not discriminate on the basis of morally insignificant statuses, such as race, supporters of the Reconstruction Amendments emphasized the legitimacy of retributive disenfranchisement as a punishment for immoral actions, such as crimes. Former slaves were not just compared with virtuous military veterans, as commentators have long observed, but were also contrasted with immoral criminals.  The mutually supportive relationship between egalitarian enfranchisement and punitive disenfranchisement — between voting and vice — motivated and shaped all three Reconstruction Amendments. Counterintuitively, the constitutional entrenchment of criminal disenfranchisement facilitated the enfranchisement of black Americans.  This conclusion complicates the conventional understanding of how and why voting rights expanded in the Reconstruction era.

Criminal disenfranchisement’s previously overlooked constitutional history illuminates four contemporary legal debates.  First, the connection between voting and vice provides new support for the Supreme Court’s thoroughly criticized holding that the Constitution endorses criminal disenfranchisement.  Second, Reconstruction history suggests that the Constitution’s endorsement of criminal disenfranchisement extends only to serious crimes. For that reason, disenfranchisement for minor criminal offenses, such as misdemeanors, may be unconstitutional.  Third, the Reconstruction Amendments’ common intellectual origin refutes recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the Fourteenth Amendment’s endorsement of criminal disenfranchisement.  Finally, the historical relationship between voting and vice suggests that felon disenfranchisement is specially protected from federal regulation but not categorically immune to challenge under the Voting Rights Act.

March 12, 2012 at 08:37 PM | Permalink

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Comments

Re & Re:
"Reconstruction history suggests that the Constitution’s endorsement of criminal disenfranchisement extends only to serious crimes. For that reason, disenfranchisement for minor criminal offenses, such as misdemeanors, may be unconstitutional".

Amendment XIV:
"But when the right to vote…is denied…or in any way abridged, except for participation in rebellion, or other crime…"

Aye, one had better pan through reconstruction history for suggestions, because a straight reading—and recent history—are not so kind to declaring misdemeanor disenfranchisement "unconstitutional".

Posted by: Adamakis | Mar 13, 2012 9:39:52 AM

try again adamakis when that amendment "other crime" was a list of maybe 10-15 crimes not 10,0000!

Posted by: rodsmith | Mar 13, 2012 11:37:40 AM

Unless a special class of non-citizen or even non-human creature is created and recognized then all of this is merely more Dredd Scott hog wash.

Posted by: tim rudisill | Mar 13, 2012 12:43:15 PM

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